IN THE MATTER OF AN APPLCIATION UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA CIVIL WRIT JURISDICTION CASE No.3339 of 1996 AKSHYAVAR SINGH S/O LATE RAJ KUMAR SINGH R/O VILL. NATI, PS- SONHAN, DISTT- BHABHUA---PETITIONER Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, BHABHUA 3. THE SUB-DIVISIONAL OFFICER, BHABHUA 4. THE DEPUTY COLLECTOR, INCHARGE, BHABHUA 5. THE CIRCLE OFFICER, BHABHUA 6. THE COMMISSIONER, PATNA DIVISION,PATNA--RESPONDENTS ----------- For the Petitioner: Mr. Rajendra Pd. Singh, Sr. Advocate Mr. N.K.Singh,& Mr. Onkar Kumar Advocates For the State: Mr. G.P.-1 ----------- P R E S E N T HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI ***** A.K.Tripathi,J. This is the second visit of the petitioner before the High Court. Earlier order of punishment passed against him was interfered with by the High Court on the ground that he was not given opportunity of hearing or a copy of the enquiry report. That infirmity was purportedly taken care of and the order of dismissal has been passed. The background to institution of the case is that the petitioner was a Dafadar and was responsible for two police stations in the district of Bhabhua. The matter relates to Sonhan police station. The reason for initiation of a departmental enquiry is that the Circle Officer had orally told the petitioner to keep an eye on the activity of such persons who were trying to grab the public land which was a route of entry and exist into the village. The allegation is that the petitioner intentionally ignored the - 2 - direction to allow the encroachment to be completed and did not inform the authority including the local Thana well in time which caused a lot of problems for the local administration when encroachment was sought to be removed. In this background the proceeding was initiated and a chargesheet was issued to the petitioner asking him to show cause. The sum essence of the charge which has been annexed by the petitioner as annexure-3 is in similar light. Contention of learned Senior counsel for the petitioner is that a reading of the enquiry report would show that no proper evidence was taken. Petitioner was not given an opportunity to lead any evidence nor any evidence was led on behalf of the disciplinary authority and only on surmises and conjecture a conclusion has been arrived that the petitioner had violated the direction of the superiors with regard to the responsibility thrust upon him in the matter. Learned Senior counsel has taken this Court to the enquiry report. From bare perusal of it, it is evident that there is no discussion of any evidence or material based on which the enquiry officer could come to a considered opinion of declaring the petitioner guilty of the charge of insubordination or failure of responsibility/ duty cast upon him. The stand of the State is that the decision to dismiss the petitioner was taken in view of the gross defiance by the petitioner and his deliberate effort to help the encroachers in - 3 - the matter when in clear terms he was informed by the Circle Officer that he has to keep an eye on the land so that the public passage is not encroached and no nuisance is created. There are two aspects of the issue, one is proper enquiry, evidence and findings based thereon before the conclusion would be arrived at. From a reading of the enquiry report, only the narration of the events and the charge has been given by the enquiry officer. There is no discussion as to the basis on which the guilt has been saddled on the petitioner. The inference which has been drawn by the enquiry officer is more in the nature of ipse dixit rather than any substantive evidence. The other aspect which also requires consideration is whether an aberration or misdemeanour of the first kind deserves punishment of dismissal in the case. Failure on the part of the petitioner to comply the direction which was sought to be oral was not such a serious issue where the petitioner ought to have been dismissed from the service. He ought to have been given a chance to change or reform himself so that no such failure occurred in future. Taking away the livelihood for the first aberration of the kind and that too without any substantive evidence pointing to the guilt did not warrant a serious punishment of dismissal in the opinion of the Court. The disciplinary authority has over reacted to the charge and the findings. In fact, the punishment is not only excessive or harsh but is disproportionate on the face of - 4 - it. In the totality therefore for the reasons indicated earlier the punishment of dismissal passed against the petitioner as contained in annexure-1 dated 21.8.1995 is hereby quashed and so is the order passed in appeal by the Commissioner contained in annxure-2 dated 16.1.1996. This writ application is allowed but without any costs. Patna High Court, Patna Dated the 28th October, 2010 RPS/Sr. Secy./NAFR (Ajay Kumar Tripathi, J.)