IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5196 of 1996 DHANESH SAHAY SON OF LATE BHARAT SAHAY RESIDENT OF VILLAGE NAYAGAON, P.S. NAYAGAON DISTRICT CHAPRA. Versus 1. STATE OF BIHAR 2. SECRETARY-CUM-COMMISSIONER WATER RESOURCE DEPARTMENT, IRRIGATION BHAWAN, PATNA. 3. DIRECTOR REVENUE ADMINISTRATION WATER RESOURCES DEPARTMENT BARRACK NO. 6, PATNA. 4. DEPUTY SECRETARY CUM SPECIAL OFFICER WATER RESORCES DEPARTMENT, BARRACK NO. 5, PATNA. 5. ADDITIONAL COLLECTOR, REVENUE ADMINISTRATIVE DEPARMENT, BARRACK NO. 6, PATNA. ----------- For the Petitioner :- Mr. Ashok Priyadarshi. For the State :- Mr. Ranjan Kumar, A.C. to AAG IX ---- 4 15/07/2010 This is the third visit of the petitioner before the High Court because every time the Court intervened in the matter and remanded the case back to the disciplinary authority or the appellate authority, the authorities continued to commit mistake in the procedure adopted in imposition of punishment passed on so called enquiry held against the petitioner. Petitioner was initially appointed as Correspondence clerk in the year 1962 and rose to the level - 2 - of a Circle Officer in the year 1968. He was last posted at Bikramganj Circle of revenue division when he came to be suspended on 20.9.1990. Petitioner remained under suspension for almost two years and thereafter served a chargesheet on 6.2.1993. Charges were four in number which would be evident from annexure-1 to the writ application. It is his case that the enquiry was not conducted in a fair and square manner and the relevant documentary and oral evidence was never led and the evidence which came on record before the Enquiry Officer was not sufficient to pin him down to the charges. Enquiry Officer did not pronounce the petitioner guilty on the charges. Based on the enquiry report, the disciplinary authority did not allow the matter to rest but proceeded and dismissed the petitioner from service, by disagreeing with the enquiry report of the Enquiry Officer. Order of dismissal came to be challenged by the petitioner on the substantive ground that no copy of the enquiry report was given, no second show cause was given and there was no occasion to punish the petitioner in view of exoneration by the Enquiry Officer. The Court found substance in the submission, quashed the order and allowed - 3 - the writ application. Matter, however, was remanded back with a direction to serve a copy of the enquiry report and to issue a second show cause to the petitioner. It is stated that the so called direction of the Court was carried out and this time again the order of punishment of dismissal came to be passed. Matter went in appeal. The appellate authority in a mechanical manner endorsed the order passed by the disciplinary authority. Petitioner had to come back to this Court again in C.W.J.C. No.7167 of 1995. Order passed in the said writ application dated 15.12.1995 is annexure-9. After taking note of the submissions and the stand of the respondents, the writ was allowed this time with a direction to the appellate authority to peruse the enquiry report, order of the disciplinary authority as well as to consider the show cause of the petitioner and pass appropriate order by applying himself to the issue. Annexure-10 is supposed to be a new order which has been passed by the appellate authority based on the direction in annexure-9 issued by this Court. Besides other submissions which have been made by the learned counsel for the petitioner with regard to the - 4 - enquiry and the order of punishment, learned counsel submits that again petitioner is being relegated to the same position despite the observation made by the High Court and the writ being allowed in terms of annexure-9. Certain infirmities in the decision taken by the disciplinary authority has also been discussed and reflected in that order. It was because of these circumstances that the High Court wanted the appellate authority, who is expected to have a superior level of application of mind, to apply himself to the entirety of the situation which was the findings given by the enquiry officer exonerating the petitioner, disagreement by the disciplinary authority and the final order of punishment and the reasons given therein. But obviously, a reading of annexure-10 would show that it is more a narration of facts than application of mind to the issue which this Court had directed the appellate authority to do. To that extent the petitioner seems to be correct that it is again one of those matters where the superior authority has passed a mechanical order despite observation and direction of this Court. This ground is good enough for this Court to interfere with the order passed in appeal. - 5 - Learned counsel representing the petitioner very fairly submits that the petitioner’s life has been ruined on the so called frivolous charges which could never be proved to the hilt. He would have any way superannuated in 1997, if he would have continued in service and, therefore, quashing the entire proceeding to that extent at this belated stage may not be required or called for as he does not derive the benefit of service in view of the intervening circumstance as also the fact that his writ application has now been taken up in the year 2010, though filed in the year 1996. He, however, wants this Court to consider this aspect of the matter whether in the given facts and circumstances and the findings thereto it is one of those extreme cases where punishment of dismissal could be awarded or ought to have been awarded. Atleast benefit of doubt could have been given to the petitioner. Punishment disproportionate to the guilt of the petitioner coupled with the so called insinuation is a very important factor in imposition of punishment. It has already been settled and held in many a decisions that un-duly harsh punishment orders by itself is arbitrary and requires interference by this Court on the doctrine of proportionality. - 6 - The punishment must commensurate with the gravity of the offence. It is not only true for a criminal jurisprudence but also true in service jurisprudence. Be that as it may, orders passed in Annexures 9 and 10 stand quashed. Writ application is allowed with a direction upon the disciplinary authority that it is one of those cases where they need to reconsider imposing any other punishment except punishment of dismissal since the petitioner had already superannuated years ago. Any other punishment may entitle him to some benefit which will restore his faith in the system. He will not die a disheartened man with a grievance that the system has been unfair to him. The Court expects the disciplinary authority to pass order on the quantum of punishment within three months from the date of communication or production of a copy of this order. AMIN (Ajay Kumar Tripathi, J.)