IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1349 of 2007 BANSH NARAYAN UPADHYAY Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner: Sri Y.V. Giri, Sr. Adv. Sri S.K. Giri, Adv. For the State: Dr. Kumar Amiteshwar Choudhary, A.G.A.6 ____________ 03/ 18/02/2010 Heard learned counsel for the petitioner and learned counsel for the State. The fact is not in dispute that when the petitioner was transferred, instead of joining the transferred place of posting he preferred a writ petition challenging his order of transfer. The writ petition ultimately came to be dismissed. The petitioner joined subsequently. He was placed under suspension and a departmental proceeding was initiated. In the departmental proceeding he took the defence that he did not join bona fide in view of the pendency of the writ petition and for the rest of the period he took the defence of illness. The enquiry report was of guilt in his failure to join in time and remaining absent from 1.1.2006 to 31.7.2006. In pursuance thereof the order of punishment dated 22.12.2006 came to be passed compulsorily retiring him from service and directing that only subsistence allowance shall be payable for the period of suspension. 2 If the petitioner has not been paid his subsistence allowance, as alleged, that is a serious lapse on the part of the respondents which they are directed to pay to the petitioner in accordance with law forthwith, if not already paid. Insofar as the order of compulsory retirement is concerned, two features are noticeable. The allegation is of unauthorized absence for six months. The enquiry report dated 29.8.2006 notices his defence of illness and the medical certificate produced. Yet it does not arrive at any finding that the petitioner was not sick or that the medical report was not acceptable. It leaves the matter undecided. Consequently, the possibility that the defence may be justified cannot be completely ignored, especially when the enquiry officer refused to return his finding on that aspect. The second show cause notice did not mention any satisfaction of the authorities to disbelieve his defence of illness from the materials placed before the enquiry officer and on which the enquiry officer had given no finding. Learned counsel for the petitioner has relied upon a judgement of the Supreme Court reported in 2010(1) P.L.J.R. 19 (S.C.) (Chairman-cum- Managing Director, Coal India Limited & Anr Versus 3 Mukul Kumar Choudhary & Ors.) which also deals with a case of unauthorized absence for six months leading to major punishment of removal from service, which the Apex Court held was an extreme punishment, unduly harsh, grossly in excess of the actions. That opens completely the issue of the quantum of punishment imposed upon the petitioner. The impugned order dated 22.12.2006 is, therefore, set aside to the extent of the quantum of punishment of compulsory retirement only. The matter is remanded to the authorities to take a fresh decision in accordance with law, as discussed above, on an appropriate punishment in the facts and circumstances of the case. Let such consideration be done and a fresh appropriate order passed within a period of two months from the date of receipt/production of a copy of this order. The writ application stands disposed. KC/ ( Navin Sinha, J.)