IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1848 of 2010 1. DHANUSHDHARI PRASAD YADAV S/O LATE JAGESHWAR PRASAD YADAV R/O VILL.- KANAUDI, P.S. WAZIRGANJ, DISTT.- GAYA Versus 1. THE STATE OF BIHAR THROUGH THE HOME SECRETARY GOVT. OF BIHAR, PATNA 2. THE DIRECTOR GENERAL OF PRISON, GOVT. OF BIHAR, PATNA 3. THE SUPERINTENDENT OF SUB.DIVISIONAL JAIL AURANGABAD 4. THE SUPERINTENDENT OF SUB-DIVISIONAL JAIL NAWADA 5. THE SUPERINTENDENT OF CENTRAL JAIL GAYA 6. THE SUPERINTENDENT OF AADRAS CENTRAL JAIL BEUR, PATNA ----------- For the petitioner:- Mr. Khurshid Alam, Adv. For the State:- Mr. R.C.P. Bharti, Adv. Mr. Md. Aslam Ansari, Adv. ---------------- 2. 9.8.2010 Heard learned counsel for the petitioner and the State. The petitioner was proceeded with departmentally in his capacity as a Warder in the Sub- Divisional Jail at Nawada when two under trial prisoners escaped on 4/5th July 1998. He has been visited with punishment inter alia that nothing beyond subsistence allowance was payable for the period of suspension. Counsel for the petitioner contended from the enquiry report that the enquiry officer has opined that the window grill through which the prisoners escaped had been weakened over a period of time. The petitioner therefore cannot be held guilty for their escape. The punishment 2 imposed is thus excessive in the nature of the findings of the enquiry officer. Counsel for the State submitted that in his reply to the charges and during the proceeding the petitioner had not denied or disputed that he was on duty when the escape had taken place. The charge was that two prisoners escaped when the petitioner was on duty as the Warder in the Jail. If he acknowledges that their escape took place during his duty hours, the charge has been admitted. If the charge stands admitted, all alleged procedural lapses, if any, in the departmental proceeding automatically loose their relevance. The petitioner cannot absolve himself of the liability if the escape took place during his duty hours and the explanation given by him has not been found acceptable. This Court cannot act as an appellate authority to sit over the view of the enquiry officer and substitute its own view only because another view may be possible on the same facts. In view of the Division Bench judgment of this Court in 2006(4) PLJR 514 (Dinesh Prasad Vs. State of Bihar & Ors.), the punishment that nothing beyond subsistence allowance shall be payable for the period of suspension stands vitiated in absence of prior show cause notice as held in Paragraph-9 of the aforesaid judgment which reads as follows:- 3 “9. Apart from these question, so far the main question for which this matter has been referred, is concerned, it appears that for imposing the punishment no. (iii) that the petitioner shall not get anything for the period of suspension save and except the subsistence allowance, the disciplinary authority was required to give separate show cause notice to the delinquent in terms of Rule 97(3) of the Code. This part of the order, therefore, is not permissible in absence of any such notice to the delinquent employee” The punishment to that extent only is quashed. This Court had held that the charge has been admitted by the petitioner. The quantum of punishment is the jurisdiction of the employer normally. This Court is not satisfied that the nature of punishment imposed calls for interference by this Court on the aspect of quantum. If the petitioner represents with regard to the quantum of punishment and seeks to rely upon any findings during the enquiry that is a matter to be considered appropriately by the disciplinary authority itself. Any such representation is expected to be considered and disposed off in accordance with law within a maximum period of three months from the date of receipt and/or presentation of such representation. The application stands allowed only to the extent indicated. P. Kumar (Navin Sinha, J.)