IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8544 of 1997 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------ 1. MOST.SONA DEVI WIDOW OF LATE KAROO MAHTO 2. SATYA NARAIN SON OF LATE KAROO MAHTO, MECHANIC ‘C’ PHULWARI DEPOT OF BIHAR RAJYA PATH PARIWAHAN NIGAM AND BOTH ARE RESIDENT OF ASHOK NAGAR ROAD NO. 1-D, KANKARBAGH, P.S. KANKARBAGH, DISTRICT PATNA. Versus 1. BIHAR RAJYA PATH PARIWAHAN NIGAM THROUGH ITS CHAIRMAN PARIWAHAN BHAWAN, BIRCHAND PATEL PATH, PATNA. 2. THE MANAGING DIRECTOR, BIHAR RAJYA PATH PARIWAHAN NIGAM, PARIWAHAN BHAWAN, PATNA. 3. THE CHIEF ACCOUNTS OFFICER, BIHAR RAJYA PATH PARIWAHAN NIGAM, PARIWAHAN BHAWAN, PATNA. 4. THE DIVISIONAL MANAGER, BIHAR RAJYA PATH PARIWAHAN NIGAM, PARIWAHAN BHAWAN, PATNA. 5. THE DIVISIONAL MANAGER, BIHAR RAJYA PATH PARIWAHAN NIGAM, PHULWARI DIVISION, PHULWARI, DISTRICT PATNA. ----------- For the Petitioner :- Mr. Devendra Prasad Sinha For the Respondents :- M/S. P. K. Verma & Nand Kumar Singh. ----- P R E S E N T THE HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI A.K.Tripathi,J. Petitioner no. 1 is the widow of late Karoo Mahto and petitioner no. 2 is the son. Both have decided to challenge the order of dismissal passed against the said - 2 - employee Karoo Mahto by virtue of order dated 21.6.1996 which is annexure-8 to the writ application. By virtue of this order late Karoo Mahto stood dismissed from service for un- authorised absence from 18.11.1995 till the date of passing of order of punishment which was 21.6.1996. Late Karoo Mahto entered service of respondent Bihar State Road Transport Corporation sometime in the year 1962. At the time of his dismissal he was working as Mechanic grade ‘C’. Reason for the dismissal is his so called absence without authority and for not obeying the order of transfer passed against him. Learned counsel for the petitioners submits that there was no proper enquiry. Late employee was not given adequate opportunity to defend himself. In fact, he was not in a position to defend himself effectively in the background that he was suffering from Tuberculosis and his condition deteriorated ultimately leading to his death on 10.07.1996 i.e. about a month after the order of dismissal contained in annexure-8 came to be passed. Submission of the learned counsel is that based on the ratio of the decision rendered in the case of Union of India and others Vs. Dinanath - 3 - Shantaram Karekar and others reported in (1998) 7 SCC, 569 the so called notice by way of news paper publication informing the late employee of the departmental enquiry initiated against him would not take away the responsibility of the respondents to ensure that the delinquent was properly and effectively served the chargesheet and informed about the contemplated disciplinary action against him. According to him, if proper steps would have been taken, then the ground reality would have been known to the respondents and may be a harsh order of dismissal may not have been required to be passed, that too against an employee who has been in employment for a long period of time. According to the learned counsel there is evidence to support that it was under unforeseen circumstance that the late employee could not report to the authorities and it was not a case of deliberate absence which is sought to be alleged against him. Another dimension which requires consideration with regard to the punishment order is on the point of proportionality. For a person who has been in employment since the year 1962 and he must be having leave - 4 - to his credit and was on the permanent establishment of the respondents, absence of about six months is not such a serious crime where the ultimate order of dismissal from service was required to be passed. There is nothing to show from the impugned order that the service record of the petitioner was such that it did not require any lenient view of the matter. The Court is of the opinion that there was circumstance which prevented the husband of petitioner no. 1 from reporting to the respondents or even plead and demand extension of leave due to the ailment he was suffering at the relevant time which ultimately culminated in his death. The period when the husband of the petitioner was absent and the time since death came more or less covers his period of absence and, therefore, the explanation offered by the petitioners seems to be authentic to that extent. It does not seem to be one of those cases where certain medical prescriptions have been procured to cover up un-authorised absence by an employee. No counter affidavit has been filed on behalf of the respondents. However, from the order of punishment it is submitted that the respondents were left with no option but to - 5 - pass the order in question after non-cooperation on behalf of the employee. News paper publication was consequence of non response to the other communications made by the respondents with regard to the departmental enquiry. But in absence of any clear and cogent material having been brought on record by the respondents, it is difficult to hold that the enquiry was conducted without due haste or that every effort was made on behalf of the respondents to give an opportunity to the delinquent employee before passing the order of dismissal. However, without commenting upon the manner in which the enquiry had been held, this Court can surely interfere with the order of punishment on the principle of proportionality. A permanent employee for absence of about six months, that too for cogent reasons, ought not to be punished by an order of dismissal which has been done in the present case. The charges were not that grave where the punishment of dismissal was required to be passed. The employee could have been awarded some other punishment for his indiscretion, if at all. This writ application is allowed. Annexure-8 is - 6 - quashed. Matter is remitted back to the disciplinary authority with a direction that taking a sympathetic view of the matter including the long service period of the erstwhile employee, any other punishment commensurate with his dereliction may be imposed, more so, in view the fact that the employee is no more and the dismissal order would be having a devastating effect on the wife and son who have to be taken care of. This writ application stands allowed. There will be no order as to costs. (Ajay Kumar Tripathi, J.) Patna High Court, The 17th August, 2010 AMIN / (N.A.F.R.)