IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12107 of 2001 SURENDRA KUMAR SINGH Versus THE STATE OF BIHAR & ANR ----------- 5/ 25-Sep-08 Heard the parties. Petitioner has been subjected to a disciplinary proceeding and dismissed from service from the post of Assistant by the impugned order contained in Memo No.191 dated 7.2.2000 issued under the signature of the District & Sessions Judge, Madhubani. It is apparent from the averments made in the writ petition that prior to the present disciplinary proceeding, on the similar ground of unauthorized absence from duty petitioner was put under suspension vide order dated 1.12.1997 of the District & Sessions Judge, Madhubani. However, pursuant to his show-cause the District & Session Judge vide his Memo No.199-203 dated 28.1.19998 accepted the show-cause of the petitioner and reinstated him in service. Immediately thereafter, petitioner again absented himself from duty and that led to his suspension and present proceeding. The order of suspension dated 19.2.1998 (Annexure-3) shows that petitioner had, soon after reinstatement, again absented from 28.1.1998. The article of charges (Part of Annexure-4) shows that without prior permission of and 2 information to the then ACJM-Cum-Incharge, Jhanjharpur petitioner absented from duty from 1.2.1998 to 17.2.1998 and such act as per charge amounted to gross misconduct and negligence to duty. In the article of charge it was further indicated that petitioner had remained absent for some other periods in the past as well as after he was placed under suspension. It has been submitted on behalf of the petitioner that the charge is not in accordance with law and in any case the petitioner should have been allowed further time to file his show-cause in the departmental proceeding but the enquiry officer, the Sub Divisional Judicial Magistrate, Jhanjharpur acted wrongly in not accepting petitioner’s letters of request for further adjournment. It was further submitted that according to averment in paragraph-25 of the writ petition the petitioner was not paid anything during the suspension period except subsistence allowance for 21 days in June, 1998 and therefore the departmental proceeding was vitiated in law. Lastly, it was submitted that the punishment of dismissal from service is too severe and disproportionate to the gravity of charges. On going through the article of charge it is found that there is only one charge which mainly mentions about unauthorized absence from 1.2.1998 to 17.2.1998 3 but in the part of charge No.1 further period of unauthorized absence by way of ten items has been added. This Court finds no illegality in the charge because it only indicates that the authorities had taken note of conduct of the petitioner during earlier period and after suspension because such conduct could be used only if it was indicated in the article of charge. In respect of grievance regarding ex parte enquiry, paragraph-3 of the enquiry report which is contained in Annexure-6 gives detail of notice given to the petitioner, the dates on which he appeared and prayed for adjournment and the date whereafter he did not turn up and never filed his show-cause. In view of those facts enumerated in Paragraph-3 of the enquiry order, this Court does not find any fault on the part of the enquiry officer in proceeding with the enquiry when the petitioner failed to avail the opportunity given to him to file his show-cause and participate in the enquiry. The subsequent plea of the petitioner that he had fallen ill and therefore he should have been given further adjournment does not appear acceptable in view of Paragraph-3 of the enquiry report. So far as non payment of subsistence allowance is concerned, learned counsel for the petitioner has placed reliance upon two judgments of the Apex Court- 4 (i) (1999) 3 SCC 679, M. Paul Anthony V. Bharat Gold Mines Ltd. and (ii) 2007 (7) SCC 90, Jagdamba Prasad Shukla V. State of U.P. to submit that non payment of subsistence allowed violates principles of natural justice because in absence of subsistence allowance a suspended employee may not be able to participate in the enquiry proceeding. No doubt, the two judgments indicated above hold that where the employee is affected by non payment of subsistence allowance and therefore cannot undertake journey to a different place to participate in the enquiry, on facts he may be able to establish breach of rules of natural justice calling interference with enquiry and punishment. On facts of this case, it is found that for 21 days of suspension period petitioner was paid subsistence allowance and there is no pleading by him either before enquiry officer or before this Court that on account of lack of finance he was prevented from his continued presence in the enquiry. Hence, it is found that in the present case petitioner has failed to satisfy this Court that he was prejudiced in his defence on account of non payment of subsistence allowance. Hence, on this account also this Court is not persuaded to interfere with the impugned order. Lastly, it has been submitted that the 5 punishment is excessive and disproportionate. Ordinarily, Writ Courts do not interfere with the quantum of punishment unless it is found shocking to the judicial conscience. In the present case, one fact which mainly dissuades this Court to interfere in the quantum of punishment is that soon before the present proceeding, petitioner had been asked to show-cause for unauthorized absence and after his show-cause was accepted and he was reinstated, he again absented unauthorisedly. In such circumstances, this Court is not persuaded to interfere with the quantum of punishment awarded. The writ petition is, therefore, dismissed. perwez (Shiva Kirti Singh, J.)