IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.836 of 2010 KULBANS TIWARY Versus THE STATE OF BIHAR & ORS ----------- 4. 28.6.2010 We have heard counsel for the appellant. Since a copy of the application has not been served on the State, we requested Shree A. Amanulla, Standing Counsel No. 17 who was present in Court to assist us in the matter on behalf of the State. The appellant constable was part of a train escort party. The allegations related to a firing made by him when after the vacuum of the train was cut by a passenger who was apprehended, a mob of approximately 400-500 persons surrounded the escort party and indulged in vigorous brick batting. Fire arms were allegedly attempted to be snatched also. In the melee the appellant is alleged to have fired killing one person on the spot. In a departmental proceeding he was punished with dismissal. Learned counsel for the appellant has confined his submission to the issue of quantum of punishment only to urge that it was not a case of wanton reckless firing. Being possessed of a weapon attacked by a large mob, it is possible that he may have 2 been of a weaker constitution than his compatriots. His conduct cannot be termed wholly unreasonable or excessive only because he was unable to exercise the necessary restraint in fear. Shree A. Amanulla appearing for the State opposed the application to submit that the authorities have passed the punishment after a departmental proceeding which has not been found to be procedurally infirm by the Single Judge, the appeal merits no interference. While, we agree with the counsel for the State, we are satisfied that what has been urged on behalf of the appellant is a matter which may merit consideration by the authorities in so far as the quantum of punishment only is concerned. Without interfering with the impugned order, the appeal is disposed with the observation that any representation of the petitioner on the quantum of punishment only, if preferred within four weeks, shall be considered on its own merits by a reasoned order. The respondents may not feel inhibited on that question by reason of our refusal to interfere with punishment (distinct from the quantum). It is made clear that this aspect of quantum of punishment in the departmental proceeding shall have 3 no co-relation with the criminal case against the petitioner which shall proceed on its own steam. The appeal stands disposed. P. Kumar ( Navin Sinha, J.) (Dinesh Kumar Singh, J.)