IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13499 of 2005 Vinay Kumar, son of Late Sheogobind Sahay, resident of Vinoy Bhawan, Postal Park, Road No.1, P.S. Kankarbagh, Dist.- Patna. ...... Petitioner. Versus 1. Bihar State Electricity Board, through its Chairman, Vidut Bhawan, Baily Road, Patna. 2. The Chairman, Bihar State Electricity Board, Bailey Road, Patna. 3. Secretary, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 4. Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Baily Road, Patna. ...... Respondents. ----------- 07- 7.11.2008 Heard Mr. Shivaji Pandey for the petitioner, and Mr. Ram Kishore Singh for the respondents. It arises out of a disciplinary proceeding, whereby the petitioner has been dismissed from the services of the respondent Bihar State Electricity Board (hereinafter referred to as the “Board”). It is directed against the appellate order dated 1.4.2005 (Annexure-1), whereby the appeal preferred by the petitioner has been dismissed, the order of punishment inflicted by the learned disciplinary authority had been modified, and enhanced to that of dismissal from service. 2. The facts essential for the disposal of the writ petition may be indicated. The petitioner was at the relevant point of time working as Electrical Operator. He was 2 transferred from Kankarbagh (Patna), to Magadh Area, Gaya, by order dated 19.10.2000 (Annexure- 2). He was relieved from the Patna Office on 20.10.2000, but did not report for duties at the transferred place for a period of five months. He was placed under suspension on 17.3.2001, and reported for duties at the Gaya office immediately thereafter on 20.3.2001. This was followed by the charge-sheet dated 19.7.2001 (Annexure-4), wherein it was alleged that the petitioner had not joined the Gaya office even though he had been relieved from the Patna Office on 20.10.2000. This was followed by detailed enquiry. The petitioner participated in the enquiry proceeding. On a consideration of the materials on record, the learned enquiry officer submitted his report dated 17.3.2003 (Annexure-5), whereby he exonerated the petitioner. He, inter alia, found that the department has been unable to prove that he was on unauthorised leave. Disagreeing with the findings of the learned enquiry officer, the learned disciplinary authority recorded reasons for his disagreement and conveyed the same by its communication dated 5.6.2003 (Annexure-6), calling upon the petitioner to show-cause as to 3 why the punishment indicated therein be not inflicted on him. The petitioner submitted his undated show-cause (Annexure-7). On a consideration of the materials on record, the learned disciplinary authority inflicted the following punishment on the petitioner: 1& fuyEcu vof/k fnukad 23&3&2001 ls fnukad 31&12&2001 rd ek= thou fuokZg HkRrk ns; gksxk ,oa bl vof/k esa dkYifud osru o`f) ij jksd gksxh ijUrq bldh x.kuk isa’ku iznk;h lsok ds #i esa dh tk;sxh@ 2& fnukad 20&10&2000 ls 19&3&2001 rd vukf/kdz`r vuqifLFkfr dks voSrfud ?kksf"kr fd;k tkrk gS ijUrq bls lsok esa VwV ugh ekuh tk;sxh@ 3& ,d osruo`f) ij vlap;kRed izHkko ls jksd@ 3. Aggrieved by the same, the petitioner preferred appeal. The learned appellate authority, for reasons assigned in his resolution dated 13.1.2005 (Annexure-9), called upon the petitioner as to why the punishment be not enhanced and dismissed from the services of the Board. The petitioner had shown cause by his undated communication (Annexure-10), whereby he raised the following two issues: 14) fd eSus dksbZ ,slk vijk/k ugha fd;k gS tks fd ?kksj dnkpkj dh Js.kh esa vkrk gks vkSj mlds fy, lsok ls c[kkZLr dh tSlk cM+k n.M fn;k tk lds vkSj vijk/k ds vkjksi ds fglkc ls Hkh izLrkfor n.M vuqikfrd #i esa cgqr cM+k gS vkSj NksVs vijk/k ds vkjksi ds fy, bruh cM+h ltk ugha nh tk ldrh gS@ 4 (15) fd esjs lkFk&lkFk 6 vU; ds fo#) Hkh LFkkukU=.k esa fcyEc ls ;ksxnku nsus dk vkjksi Fkk vkSj mUgsa Hkh bUDokbjh vkSfQlj us gekjs tSlk gh vkjksi izekf.kr ugha gksrk gS fd fjiksVZ nh gS ysfdu muesa ls fdlh dks Hkh esjs tSlk fMlfe’ky D;ks ugha fd;k tk; dh dksbZ uksfVl ugha nh x;h gS vkSj blls Hkh Li"V gksrk gS fd fcyEc ls ;ksxnku nsus dk vkjksi bruk xEHkhj vkjksi ugha gS ;k xEHkhj dnkpkj dk ekeyk ugh gS tks fd fMlfe’ky tSlh ltk nh tk lds blhfy, esjk fuosnu gksxk fd fMlfe’ky ;k vU; fdlh rjg dk n.M ugh fn;k tkuk pkfg, vkSj u eSaus ,slk dksbZ vijk/k fd;k gS fd eq>s ltk nh tk lds@ On a consideration of the materials on record including the cause shown by the petitioner, the learned appellate authority rejected the appeal, enhanced the punishment, and dismissed the petitioner from service. Hence this writ petition. 4. While assailing the validity of the impugned order, learned counsel for the petitioner does not challenge the action of the learned disciplinary authority. In his submission, the appellate order enhancing the punishment, in the fats and circumstances of the present case, is unjustified and is disproportionate to the gravity of the proven charges. He has raised the following issues in support of his dominant contentions: (i) The show-cause notice for enhancement of punishment issued by the learned 5 appellate authority has been done in a mechanical manner. (ii) The same does not assign any reasons. (iii) The learned appellate authority has not applied his judicial mind to the issues raised in the cause shown by him, particularly the two aspects indicated hereinabove, namely, the punishment meted out is disproportionate to the gravity of the proven charges. and (iv) Six similarly circumstanced persons have been visited with lesser punishment. He has relied on the following reported judgments: (i) 2004 (2) P.L.J.R. 208 (SC), paragraph 12 (Shri Bhagwan Lal Arya Vs. Commissioner of Police, Delhi and others) (ii) (2007)4 S.C.C. 669, paragraphs 17 to 43 (Coimbatore District Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Association and Another) (iii) (2008)3 S.C.C. 273 (State of Madhya Pradesh and others Vs. Hazari Lal). 6 5. Learned counsel for the respondents has supported the impugned action. He submits that, in view of the finding of the learned disciplinary authority that the petitioner was on unauthorised leave continuously for a period of five months, which had the propensity to disrupt the Board’s functioning affecting a large number of residents of Gaya, the order of punishment is appropriate. The functions of an electrical operator are important. In his submission, he was guilty of unauthorised and wilful absence. He joined, if at all, only after he was placed under suspension. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. The learned enquiry officer had exonerated the petitioner and found that the Board had not been able to prove that the petitioner was guilty of unauthorised and wilful absence. He has also found that the charge-sheet was to the effect that the petitioner was on unauthorised absence from 21.10.2000 to 19.7.2001, whereas he had actually reported for duties on 20.3.2001. It was, therefore, concluded that the Board had not been able to prove that he was on unauthorised leave 7 from 21.10.2000 to 20.3.2001. Disagreeing with the same, the learned disciplinary authority recorded reasons for disagreement which were conveyed to the petitioner and was afforded reasonable opportunity to show-cause which he did. On a consideration of the materials including the cause shown by the petitioner, the learned disciplinary authority, for the reasons assigned by him, passed the order of punishment and indicated hereinabove. I have no manner of doubt that the learned enquiry officer had recorded a perverse finding of fact that the petitioner had reported for duties on 20.3.2001 (Annexure-3), whereas the charge was for unauthorised absence from 21.10.2000 to 19.7.2001. He made the basic error of emphasizing that the petitioner had reported for duties on 20.3.2001, and, therefore, the charge of unauthorised absence till 19.7.2001 was erroneous. The materials on record, except the alleged joining report of the petitioner dated 20.3.2001 (Annexure-3), do not show that the petitioner had reported for duties on 20.3.2001, let alone that he had started functioning on that day. The two-fold objections in this regard are that there is no material on record that 8 whether or not the petitioner’s alleged joining report dated 20.3.2001 (Annexure-3) was genuine document. On the contrary, there are indications that he had not submitted any such joining report. In any view of the matter, even if it were taken to be a genuine document, indeed he could not have been permitted to join because he had already been placed under suspension on 17.3.2001. It, therefore, automatically follows that the petitioner was surely on unauthorised absence from 21.3.2001 to 19.7.2001. This is only to put the record straight. Indeed learned counsel for the petitioner has neither challenged the reasons for disagreement, nor the order of punishment inflicted by the learned disciplinary authority. 7. This takes us on to the vital question advanced by the learned counsel for the petitioner. It needs serious consideration whether or not the punishment of dismissal is disproportionate to the gravity of the proven charges. A few facts are of considerable importance in the present context. The petitioner took the unsubstantiated plea that he had absented himself on account of medical problems. There has been no evidence at all to 9 substantiate the charge. He seems to be under the impression that a mammoth organisation like the respondent Board will not be able to notice his unauthorised absence, he being a cog in the machine. If that were not so, he would not have reported for duties at Gaya soon after the order of suspension was passed. Furthermore, he ought to have been mindful of the position that he was holding the post of electrical operator, whose absence can cause disruption of work in generation and distribution of electricity causing wide-scale problems. Indeed the respondents have taken the plea before the authorities below as well as before this Court that his absence did cause disruption of work causing inconvenience to the masses. He also does not seem to be mindful of the position that employees can get salary for due discharge of duties and not for personal convenience. The employees cannot by their irresponsible action unmindful of their duties and obligations to the employer, absent themselves unauthorisedly in the manner the petitioner had done. Deployment of work force is a massive and difficult managerial functions, and such spanners in the wheel as was put by the petitioner, was surely a 10 very irresponsible act capable of severe punishment. I am, therefore, of the view that the petitioner was unauthorisedly and wilfully absent for the period in question only in order to avoid his joining at Gaya. 8. This takes me on to the next question raised by the petitioner which really embraces two issues, namely, the quantum of punishment which can appropriately be inflicted on the petitioner in view of the proven charges coupled with the other issue, namely, similarly circumstanced persons have not been given the extreme penalty of dismissal from service. I could have thought of deciding this issue myself but I do not find it possible on account of the extremely irresponsible counter affidavit of the respondents which does not cover the issues at all. It is merely an apology for a counter affidavit. The same is only an incomplete narration of some of the facts which are discernible from the various orders on record. It neither touches the issue of quantum of punishment, nor it deals with the question as to in what manner similarly circumstanced employees were treated. According to the petitioner, all of them as well as the petitioner were 11 transferred by identical orders. Whereas others have been treated leniently and let off with light punishments, the petitioner has been visited with the extreme penalty of dismissal from service. The petitioner has raised a significant issue before the authorities below as well as in the writ petition. The respondent authorities were duty-bound to disclose before this Court the parity or otherwise between the petitioner and the other employees. I am, therefore, constrained to remit this matter back to the learned appellate authority to dispose of the appeal in accordance with law, taking guidance from the three judgments cited by the petitioner and indicated hereinabove, and the observations made hereinabove. 9. In the result, this writ petition is allowed, the order dated 1.4.2005 (Annexure-1), passed by the learned appellate authority is hereby set aside, and the matter is remitted back for a fresh decision. In the circumstances of the case, there shall be no order as to costs. (S K Katriar, J.) S.K.Pathak/ 12