IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7355 of 1996 SHYAM PRAVESH SHARMA, son of late Jagdish Sharma, resident of village-Dhuriyari, Police Station – Ghoshi, District – Jehanabad _____ Petitioner Versus 1. STATE OF BIHAR through the Commissioner cum Secretary, Department of Water Resources, Government of Bihar, Patna. 2. Director (Additional Secretary cum Director), Revenue Administration, Water Resources Department, Government of Bihar, Patna. 3. Deputy Collector, Revenue Division, Patna. ______ Respondents For the petitioner : M/S. Banwari Sharma and Shiv Kumar. For the State : Mr. Ranjan Kumar, AC to AAG – 9. _______ 05. 15.07.2010 Petitioner has been dismissed from service vide order dated 7.10.1994. The order of dismissal was affirmed in appeal vide order dated 14.5.1996. The respective orders are Annexures 3 and 5 to the writ application. Petitioner was appointed as a clerk under the respondents but was working as a cashier in the office of the Deputy Collector, Revenue, Patna. He was working on the post of cashier. While posted as such many serious instances of omissions and commissions came to the notice of the authorities, which basically related to embezzlement of government money on many counts, on many occasions and on many heads. In fact the misconduct of the petitioner was so varied that a set of 18 charges came to be framed against him, mostly relating to embezzlement. The charges which are contained in annexure 1 make out an interesting reading and also shows the ingenuity of the petitioner in the said embezzlement. Enquiry was conducted. According to the petitioner, it was ex-parte enquiry conducted and finding of guilt 2 recorded by the enquiry officer. The punishment of dismissal came to be passed. As it was affirmed by the appellate authority, the petitioner decided to challenge the orders in the present writ application. The first submission is that an ex-parte enquiry conducted behind the back of the petitioner is no enquiry in the eye of law. He was never served a copy of the charges. Whatever has been decided and held against him is obviously without any proper opportunity extended to the petitioner to explain his conduct and that should be good enough for interfering with the order of punishment. The other aspect pointed out by the learned counsel for the petitioner is that the petitioner was not even paid subsistence allowance subsequently from the year 1993 when his Headquarter was fixed at Motihari and this is also a valid ground to be taken into consideration with regard to punishment in question. The question raised by the petitioner with regard to the validity of the enquiry would have merited consideration provided records do not show that it was because of the conduct of the petitioner and his persistent non-cooperation and stone-walling that the matter had to proceed ex-parte. The steps taken by the respondents especially the enquiry officer is reflected in the statement made in the counter affidavit. It is not only official communication but even newspaper publication had been resorted to. The petitioner chose not to participate and co-operate and that cannot be made the basis for labeling an enquiry to be unfair and in violation of principle of natural 3 justice. One thing significant, however, which emerges is that it is not a case that ex-parte enquiry has been held without production of evidence and material in support of the charges. Even in absence of the petitioner all those evidence, which are mostly documentary, were presented and proved which finally formed the basis of the findings of embezzlement of government money, by the petitioner under various heads. The other aspect with regard to non-payment of subsistence allowance and consequence thereof which has been urged also does not merit consideration. Non-payment of subsistence allowance may be considered prejudicial enough in some cases of departmental enquiry, but the law has undergone a change. Petitioner has to establish that due to non-payment of subsistence allowance serious prejudice was caused. In addition to that counsel for the State points out from the averments in the counter affidavit that the petitioner never joined the Headquarter where he was transferred i.e. Motihari and at not point of time he submitted any application under Rule 96 of the Bihar Service Code which could have entitled him to claim subsistence allowance. This is yet another instance where the petitioner has tried to utilize his own non–cooperation to his advantage. This issue also does not help the petitioner in overcoming the punishment order which has come to be passed. It is only a valiant effort to somehow get rid of the order of dismissal without there being any serious legal infirmity in the procedure or the punishment. 4 It is a misplaced writ application. The order of punishment and the order passed in appeal are based on the findings and material which has come during the course of enquiry. The writ application is dismissed. rkp ( Ajay Kumar Tripathi, J.)