IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3841 of 2009 August Tigga . Versus The State Of Bihar & Ors . ----------- 2. 18.07.2011 Heard learned counsel for the petitioner and the State. The petitioner stated to be a District Agriculture Officer is aggrieved by the order of punishment dated 24.9.2008 dismissing him from service. The additional grievance is for non-payment of subsistence allowance for the months of June, July and September, 2008. On 11.2.2006 the petitioner was suspended and proceedings drawn up on five charges. An enquiry report came to be submitted on 12.9.2006. The submission from the same is that the main allegations are against the Cashier with regard to embezzlement whereas the finding against the petitioner primarily are of not being vigilant in discharge of duties. The petitioner was alleged to have acted in tandem with the Cashier. The Cashier has been visited with a lesser punishment. A second show cause notice was issued duly replied to. But it is fairly acknowledged that this charge of discrimination in imposition of punishment, has not been raised therein. The ground has been 2 taken for the first time in the writ application. The allegations against the petitioner primarily related to large withdrawals made by Shri Binod Kumar who was the Cashier. The petitioner is alleged to have acted in conspiracy. The enquiry report primarily indicts him for not having been sufficiently alert in discharge of his duties and having taken belated action. Counsel for the State submits that a counter affidavit appears to have been prepared under Oath No. 20548 dated 30.6.2009. He is not aware whether it was filed in Court or not. No such counter affidavit is available on the record and neither has any copy been served on the counsel for the petitioner. However, the Court requested the counsel for the State to assist whether there were any materials in the said counter affidavit on the aspect of discrimination in punishment. Learned counsel for the State fairly acknowledged that there is no discussion in the counter affidavit on that aspect. The law stands well settled that even in a departmental enquiry an punishment imposed on a delinquent there has to be a parity subject of course to any distinction on the nature of allegations, the kind of 3 evidence available etc. These are primarily questions of fact. Prima facie it appears that the role and onus was higher against the Cashier. The respondents have to apply their mind to this aspect first whereafter the occasion for judicial review may or may not arise. The Court in the garb of judicial review cannot usurp that power. That principle of Article 14 and the aspect of discrimination shall equally apply to an order of punishment in a departmental proceeding stands well established. Reference may conveniently be made to (2010) 5 SCC 783 (State of Uttar Pradesh v. Raj Pal Singh) holding at Paragraph-5 as follows:- “5. Though, on principle the ratio in aforesaid cases would ordinarily apply, but in the case in hand, the High Court appears to have considered the nature of charges levelled against the five employees who stood charged on account of the incident that happened on the same day and then the High Court came to the conclusion that since the gravity of charges was the same, it was not open for the disciplinary authority to impose different punishments for different delinquents. The reasoning given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees.” The application is disposed with liberty to the petitioner to represent before the authorities limited to the issue of parity in treatment with Shri Binod Kumar 4 as the petitioner is alleged to have acted in tandem with him. If there are no sufficient reasons or justification to put the allegations against the petitioner on a higher pedestal than that of the Cashier, there shall be no justification for subjecting the petitioner to a more serious and discriminatory punishment. Let the disciplinary authority consider the matter and dispose it off by a reasoned and speaking order within a maximum period of eight weeks from the date of receipt/production of a copy of this order. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)