IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5697 of 2009 Gauri Shankar Tiwary Versus The State Of Bihar & Ors ----------- For the Petitioner: Mr. Surendra Kumar, Adv. For Respondent State: Mr. Sunil Kr. Ravi, A.C. to A.A.G. III. 2/ 28/07/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner, a Constable, on allegations of unauthorized absence was dismissed from service by order dated 9.11.2001. His appeal against the same was rejected on 10.4.2002. C.W.J.C. No.3969/04 was then preferred by him. The order notices 400 days of absence. The Court observed that the petitioner was unable to demonstrate any “legal point”. In context of the background of a departmental proceeding this naturally has to be understood as his inability to demonstrate any procedural irregularity in the decision making process or perversity in findings which are the only limited grounds on which a Court can interfere with an order of punishment passed in a departmental proceeding. After having failed to persuade the Court to interfere on merits the petitioner appears to have urged that since his memorial was still pending, appropriate directions may be given for disposal of the memorial. The Court has no hesitation in holding that 2 as far as the merits of the matter were concerned, the issue stood concluded by the order of the Court. It was but a grace granted to the petitioner to pursue his memorial leaving him to his fate. If it was allowed, that was to his advantage. Insofar as the Court was concerned, the order of dismissal and the appellate order both were justified. He cannot turn that grace as a foundation for a fresh cause of action. Learned counsel for the petitioner from the rejoinder to the counter affidavit submits that there has been discrimination in the punishment as others similarly proceeded with for unauthorized absence have been given lesser punishments. The issue of parity in punishment does not appear to have been raised at any stage in his appeal or memorial. In any event of the matter, a claim for parity in punishment is more a question of fact to be examined in the background of a host of factors, such as the period of absence, the nature of duties, the defence of the same, if they were all habitual absentees etc. There can be no general yardstick to consider parity in punishment on a clubbing of the term unauthorized absence only. At this stage Learned counsel for the petitioner prays for leave to withdraw the application to 3 pursue departmental remedies on the issue of the quantum of punishment claiming parity. That is an aspect for the respondents to decide and not for the Court to dwell upon. The application is dismissed as withdrawn. KC ( Navin Sinha, J.)