IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1817 of 2007 RAM DEO SAHU SON OF LATE KALAR SAHU RESIDENT OF VILLAGE MANJHAUL, P.S. CHERIA BARIYARPUR, DISTRICT BEGUSARAI. Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER CUM APPELLATE AUTHORITY, MUNGER DIVISION, MUNGER. 3. THE DISTRICT MAGISTRATE CUM THE DISCIPLINARY AUTHORITY, BEGUSARAI. 4. THE ADDITIONAL COLLECTOR, BEGUSARAI. ----------- 2 24/06/2010 Petitioner was a Halka Karamchari posted in the district of Begusarai. After holding of a departmental proceeding the disciplinary authority, namely, the District Magistrate, Begusarai has decided to dismiss the petitioner from service. The order of dismissal is annexure-15 to the writ application. When the petitioner challenged the said order in a writ application before this Court, the learned Single Judge dismissed the writ application with liberty to the petitioner to file an appeal as there was provision for statutory appeal. The petitioner challenged the order of the learned Single Judge by way of L.P.A. The Division Bench after hearing the petitioner did not interfere with the order of the learned Single Judge but directed the petitioner to pursue the remedy of appeal and to raise all the questions including - 2 - the question of procedural irregularities, if any, in the enquiry before the appellate authority. Petitioner thereafter filed his appeal before the Divisional Commissioner, who was the appellate authority. The appeal was registered as Service Appeal No. 16-26 of 2005. Final decision of the appellate authority is annexure-19 to the writ application. Appeal too has been dismissed. Therefore, the present writ application has been filed challenging both annexures-15 and 19. Opening submission made on behalf of the petitioner is that the petitioner was not the only person who was proceeded against. Two other revenue authorities were also subjected to enquiry but in those two cases when they came before the High Court, the learned Single Judge after hearing the parties found and recorded that the enquiry had not been properly conducted and, therefore, the matter was remitted back after setting aside the order of punishment. Those orders are on record as Annexures 17 & 17/A. Petitioner submits that after the matter got remitted back two other employees have now been exonerated by the District Magistrate and put back in service whereas the present - 3 - petitioner stands dismissed for similar or identical charges. The other submission which has been made is that besides procedural irregularities which were there in the enquiry, even the punishment of dismissal against the petitioner is excessive, disproportionate and unduly harsh. Matters require to be looked into even from that angle. The Court is not in a position to comment on the decisions which have been rendered in the case of two other employees, namely, Md. Fakhre Alam and one Rajendra Kumar Jha since their cases were taken up and decided on their own merits and the consequences thereof have flown in their favour. So far as the present petitioner is concerned, the learned Single Judge did not go into the merits of the matter on this aspect but allowed the petitioner to go in appeal. The Division Bench against the order of the learned Single Judge reiterated the direction and also held that the petitioner had liberty to raise those aspects of the matter as well before the appellate authority. The order passed by the Commissioner is Annexure-19 and the operative portion is recorded on 22.09.2006/26.09.2006. It is a detailed order which has come to be recorded by the Commissioner and for the reasons - 4 - indicated by him, he did not feel inclined to interfere with the order of punishment passed against the petitioner. The Court has gone through the entire order of the appellate authority. The question of irregularity in the proceeding was raised by the petitioner but the Commissioner has meticulously answered those questions which form part of the order. He has come to the conclusion that it is not a case where opportunity of hearing or a fair hearing was not provided to the petitioner. The petitioner has participated to the extent he wanted to participate and only when the proceeding was abandoned after putting a valiant fight by the petitioner that the enquiry was brought to rest. It is not the case of the petitioner that the record or the documents which he wanted were not available to him. When he was directed to obtain copies of the same he failed to do so and thus the failure does not lie on the part of the enquiry officer or the presenting officer. The petitioner cannot take advantage of his inaction in the manner in which he wants at this belated stage. The culpability of the petitioner is evident from the detailed discussion in the order of the appellate authority and - 5 - to that extent the Court does not find any error in the conclusions or findings reached by the appellate authority. However, one thing which this Court would like to consider is the submission made at the Bar on the quantum of punishment passed against the petitioner. The petitioner was a permanent employee. He had put in more than a decade or two in the services of the respondents and it is not evident whether it was the first misconduct or misjudgment on the part of the petitioner while in government service. There may not have been an occasion for the petitioner to commit such misdeeds in the past. Dismissal from service ought to be resorted to as a last punishment, more so if the service record of the employee in question does not reflect negativity all the way during service period. Dismissal also entails harsh consequences upon the family members of the employee and that humanitarian aspect cannot be over looked as well. In the totality, therefore, without interfering with the order in question as such, the Court remits the matter back to the disciplinary authority, namely, the Collector that he shall examine the service record of the petitioner. If the service record of the petitioner is otherwise not adverse and if - 6 - it was the first omission on the part of the petitioner, then he may consider imposing of any other punishment except the punishment of dismissal. This writ application is allowed in part to the extent indicated above. AMIN (Ajay Kumar Tripathi, J.)