IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4665 of 2001 AJAY KUMAR TIWARI, son of late Ramapati Tiwari, resident of village Bhaluaw post Khanpur (Ekama), PS Manjhi Chpara (Saran)….. Petitioner Versus 1. Bihar State Road Transport Corporation,Patna through its Administrator, BSRTC, Patna 2.Administrator, Bihar State Road Transport Corporation, Patna, Birchand Patel Marg, Patna 3. Divisional Manager, BSRTC, Chapra, Saran 4. Depot Superintendent, BSRETC, Chapra, Saran 5. Depot Superintendent, BSRTC, Siwan….Respondents ----------- 04- 12.12.2008 Heard Mr. Ajay Kumar Ambastha for the petitioner, and Mr. P K Verma for the respondent –Bihar State Road Transport Corporation. It arises out of disciplinary proceeding whereby the petitioner has been dismissed from the services of the respondent- Corporation. The petitioner challenges the enquiry proceeding and assails the validity of the order of punishment dated 30.10.98 (Annexure 3), passed by the Divisional Manager, Chapra, and the appellate order dated 26.12.2000 (Annexure 10), passed by the Administrator in the capacity of the appellate authority. The respondents have placed on record their counter affidavit and have supported the impugned orders. 2. A brief narration of facts essential for the disposal of the writ petition may be indicated. The petitioner was at the relevant point of time posted as Conductor at Chapra. He had last worked on 4.5.98 and did not report for duties on 5.5.98, and ever thereafter. He was transferred from Chapra to Siwan by order dated 1.7.98. He never joined at Siwan. Charge-sheet dated 9.10.98 (Annexure 5) was served - 2 - on him, wherein it has been alleged that he is continuously absent from 5.5.98 without obtaining leave, and he is engaged in private work. He was served with another charge-sheet of the same date of 9.10.98 (Annexure 6), wherein it has been alleged that he was functioning as Conductor on 11.498, in Bus No. BPF 6633, in Chapra- Rasulpur route. It was found during the course of surprise inspection that out of total 12 passengers, 5 had not been issued tickets, and the petitioner had collected Rs.11/- from each one of them. The petitioner did not appear before the learned enquiry officer leading to enquiry report, wherein both the charges have been held to have been proved. The learned disciplinary authority agreed with the findings recorded by the enquiry officer leading to the said order of punishment dt. 30.10.98 (Annexure 3). The petitioner preferred departmental appeal which has been rejected by the impugned order dated 26.12.2000 (Annexure 10). Hence this writ petition. 3. While assailing the validity of the impugned orders, learned counsel for the petitioner submits that he was ill from 5.5.98, and had informed the authorities. He next submits that, he was not informed of the enquiry proceedings as a result of which he could not appear before the learned enquiry officer. He submits that in view of his absence, it was incumbent on the learned enquiry officer to publish the notice in local dailies. He relies on the judgment of a learned single Judge of this Court reported in 2000 (4) PLJR 639 (Md. Mustafa Abbasi v. Chairman, State Bank of India). He lastly submits that the quantum of punishment meted out to the petitioner is - 3 - disproportionate to the gravity of the proven charges. He relies on the judgment of a learned single Judge of this Court reported in 1995(1) PLJR 607 (Manoj Kumar Sah v. Bihar State Road Transport Corpn.). 4. Learned counsel for the respondents has supported the findings. He submits that the judgments relied on by learned counsel for the petitioner are inapplicable to the facts and circumstances of the present case. The petitioner was willfully absent from duties and had been served with notice of the enquiry proceeding. He lastly submits that the punishment of dismissal is fit to be inflicted on the petitioner. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears that two charge-sheets with the aforesaid allegations were issued to the petitioner on the same day. The learned disciplinary authority has agreed with the findings recorded by learned enquiry officer and has held that the petitioner had received the relieving letter from the Chapra office on 24.7.98, and never reported for duties at the Siwan office. He has also found that the learned enquiry officer sent repeated notices to the petitioner informing him of the pendency of the enquiry proceeding but the petitioner purposely made himself scarce leading to ex -parte proceeding. I am thus convinced that the petitioner had full notice of the enquiry proceeding but he purposely did not appear because of various circumstances manifest on the face of the record. He had been transferred from the post of Conductor at Chapra to that of Time Keeper at Siwan, quite an inconvenient posting for a person - 4 - of the nature and the habits of the petitioner. He had already been punished on four occasions earlier for causing wrongful gain to himself, and wrongful loss to the Corporation, in identical manner. He, therefore, felt threatened in the services of the Corporation, felt deprived of illegal income and had, therefore, started working for private bus operators. The judgment of this Court in the case of Md. Mustafa Abbasi (supra) relied on by the petitioner, is wholly inapplicable to the facts and circumstances of the present case. That was a case where this Court observed that, in case whereabouts of the delinquent employee is not known, resort can be had for service of notice by publication. In the present case, the whereabouts of the petitioner has been known to the authorities, repeated attempts were made to serve notice on him which he purposely declined to receive, obviously because he was already engaged in lucrative job with private bus operators, and he had gone to the Chapra office on 24.7.98 to receive the order relieving him from that office. Learned counsel for the petitioner has also contended that he was absent from 5.5.98 because of his illness. The petitioner ought to have placed the materials in support of this contention before the learned enquiry officer. He did not do so and instead had made oral submission before the learned appellate authority who has refused to accept the same, inter alia, for the reason that the impugned order of punishment was passed on 30.12.98, and the petitioner had allegedly reported for duties on 31.12.98. The learned appellate authority has - 5 - rejected the contention on two-fold grounds, namely, this ought to have been placed before the learned enquiry officer and, secondly, the petitioner became fit for service as soon as he was dismissed from service. The contention is, therefore, rejected. Learned counsel for the petitioner has lastly submitted that the extreme penalty of dismissal has been inflicted on him which is disproportionate to the gravity of the proven charges. Law is well settled that the quantum of punishment is essentially a managerial and executive function, and at best be left to the discretion of the concerned authorities. This Court in exercise of the powers of judicial review can interfere with the quantum of punishment if the Court is convinced that the punishment is disproportionate to the gravity of the proven charges, or, stated in other words, shocks the conscience of the Court. In the present case, it has been proved during the course of the disciplinary proceeding that he was purposely and willfully absent from duties from 5.5.98, and ever thereafter, inter alia, for the reason that he was working for private operators. He was also trying to avoid his joining at Siwan where he had been posted as Time Keeper. The implications of the transfer are writ large on the face of it. Thirdly, the petitioner has been found guilty of withholding the fares received from 5 passengers out of total 12 passengers. The proportion of deprivation of the revenue to the Corporation in the two cases are evident. In the reported judgment, the Corporation had been deprived of the revenue of 5 passengers out of 58, whereas in the present case the Corporation has been deprived revenue of 5 persons out of the - 6 - total of 12 passengers. Fourthly, the petitioner had been doing it habitually. He has already been punished for identical charges on four occasions earlier and this was the fifth one. Learned counsel for the petitioner has relied on the judgment of this Court in the case of Manoj Kumar Sah (supra). That petitioner was also a Conductor in the same Corporation and was found guilty of withholding the fare of five passengers, out of a total 58 passengers leading to the order of dismissal from service. In the peculiar facts and circumstances of that case, this Court found the punishment disproportionate to the gravity of the proven charges. Reliance was placed on Clause 22 (ii) of the Industrial Employment (Standing Orders) Act 1946. Clause 22 as a whole is reproduced hereinbelow for the facility of quick reference :- “22. (i) Subject to the provisions of Circulars/Orders that maybe issued from time to time an employee found guilty of misconduct may be punished in one or more of the following ways :- (1) Warning or Censure. (2) Fine. (3) Withholding of increment or promotion. (4) Recovery from pay/wages of the whole or part of any pecuniary loss caused to the Corporation. (5) Forfeiture of wages during the period of suspension. (6) Demotion and/or reduction in grade. (7) Removal from service (8) Discharge or dismissal from service. (ii) In awarding punishments the Chairman/Managing Director/Divisional Manager/Work Manager/Regional Works Manager/ or any other competent authority take into account the gravity of the misconduct, previous records, if any, of the employee and other extenuating or aggravating circumstances that may exist.” That was a case arising out of the proceeding under the Industrial Disputes Act where the parties had the occasion to invoke - 7 - the provisions of the Industrial Employment (Standing Orders) Act 1946. It is a doubtful contention whether or not the same can be invoked by the parties in the present case which does not arise out of the proceedings before Industrial Courts. Secondly, this Court found on a consideration of the relevant aspects of the matter that the authorities have not taken into account the gravity of the misconduct, the previous records, if any, of the employee, and other extenuating or aggravating circumstances that may exist. On the other hand, in the present case, the petitioner has been able to gather only aggravating circumstances against himself as summarized hereinabove. In that view of the matter, the judgment is wholly inapplicable to the facts and circumstances of the present case. On a consideration of the entire materials, I am convinced that the order of dismissal is the only appropriate punishment that can be inflicted on the petitioner in the present case. 6. In the result, there is no merit in this writ petition. It is accordingly dismissed. ( S K Katriar ) mrl