IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3324 of 2008 MADAN MOHAN ROY, SON OF SRI BAHADUR ROY, RESIDENT OF VILLAGE- RAJENDRANAGAR, P.O.- MADHUBANI, POLICE STATION- KHAJANCHI HAT, DISTRICT- PURNEA :---PETITIONER. Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, REVENUE AND LAND REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE COMMISSIONER, PURNEA DIVISION, PURNEA. 4. THE SECRETARY TO THE COMMISSIONER, PURNEA DIVISION, PURNEA. 5. THE COLLECTOR, PURNEA. 6. THE DEPUTY COLLECTOR, ESTABLISHMENT, PURNEA. 7. THE SUB-DIVISIONAL OFFICER, BAISI, PURNEA. 8. THE CIRCLE OFFICER, AMAUR, DISTRICT- PURNEA. 9. THE CIRCLE OFFICER, B. KOTHI, DISTRICT- PURNEA :--- RESPONDENTS. ----------- For the petitioner : Mr. Shyama Prasad Mukherjee, Senior Advocate. Mr. Shanti Pratap, Advocate. For the State : Mr. Rabindra Kumar Priyadarshi, A.C. A.A.G.-I. ======== 5. 23.06.2011. Heard learned counsel for the petitioner and the State, who instead of filing the counter affidavit, as was directed under orders dated 05.04.2011, has produced the records of the departmental proceeding for perusal by the Court as also by the counsel for the petitioner and having perused the records learned counsel for the petitioner has made his submissions. 2. Petitioner at the relevant time served as Revenue Karmchari in the Barhara Kothi, Amaur Block of Purnea District. He is aggrieved by the order bearing Memo No. 1653 dated 23.08.2004, Annexure-2 passed by the Collector, Purnea, whereunder he has been dismissed from service after conclusion of the departmental proceeding initiated against him vide charge-sheet dated 17.12.2003, Annexure- 4. He is also aggrieved by the appellate order bearing Memo 2 No. 83 dated 05.01.2008, Annexure-1, whereunder the appeal filed by the petitioner against the dismissal order has been rejected. Earlier petitioner was placed under suspension in contemplation of the departmental proceeding by the District Magistrate, Purnea under order bearing Memo No. 5223 dated 10th November, 2003, Annexure-3. Perusal of the charge-sheet indicates that three charges have been levelled against the petitioner. Charge No.1 is about failure of the petitioner to distribute the red, green card to the land- holder, beneficiary as also to deduct the surplus land from the Jamabandi of the land-holder although Jamabandi of the surplus land stood already created in favour of the beneficiary. Charge No. 2 and 3 are also connected with Charge No. 1. 3. Having received the memo of charge dated 17.12.2003, Annexure-4 petitioner filed his written defence before the Enquiry Officer on 13.01.2004, copy whereof is contained in Annexure-5 to this application, perusal whereof indicates that he refuted the charge and submitted that he joined the post of Revenue Karmchari at Barhara Kothi on 01.04.1991 but Sri Sada Nand Singh who made over charge to him did not hand over the red, green card to him which remained concealed in the Circle Office. He also submitted that after creation of the Jamabandi with respect to the surplus land in favour of the beneficiaries, same was not reduced from the Jamabandi of the land holder as the then Circle Officer verbally restrained him from doing so. 3 Aforesaid defence of the petitioner was considered by the Enquiry Officer in the light of the written representation of the Presenting Officer, the Enquiry Officer with reference to Register-II and records of Jamabandi Case No. 127/1990-91 recorded a finding in the Enquiry Report that although Jamabandi of the surplus land stood created in favour of the beneficiary petitioner deliberately in order to help the land- holder did not reduce the surplus land from the Jamabandi of the land-holder on the basis of which the land-holder continued to obtain revenue receipt for the surplus land till 31.03.2003 and relying on the receipts asserted his title and possession over the surplus land leading to a serious occurrence on 11.08.2003. In the enquiry-report the Enquiry Officer categorically held that had the petitioner deducted the surplus land from the Jamabandi of the land-holder pursuant to the creation of Jamabandi for the surplus land in favour of the beneficiary vide record of Case No. 127/1990-91 there was no occasion for the land-holder to obtain the rent receipt until 31.03.2003 and if no rent receipts would have been given to the land-holder there could not have been any occurrence with regard to title and possession of the surplus land on 11.08.2003. Having received the Enquiry-Report Collector, Purnea, the Disciplinary Authority, issued second show-cause notice bearing Memo No. 1254 dated 20.07.2004, Annexure-7 asking the petitioner to show cause as to why he be not dismissed in the light of the findings recorded by the Enquiry 4 Officer under report dated 23.06.2004, Annexure-6. 4. Petitioner submitted his second show-cause reply dated 07.08.2004, Annexure-9 refuting the findings recorded by the Enquiry Officer and further submitted that his claim as set out in the written defence dated 13.01.2004, Annexure-5 has not been rightly appreciated by the Enquiry Officer. Collector, Purnea, the Disciplinary Authority, having considered the Enquiry Report together with the second show-cause reply as also the earlier reply submitted by the petitioner before the Enquiry Officer and the written representation of the Presenting Officer passed order dated 23.08.2004 dismissing the petitioner. Against the dismissal order petitioner filed appeal before the Divisional Commissioner, Purnea who initially did not entertain the same as the same was not filed through proper channel. When the appeal was filed through proper channel, same was dismissed on the ground of limitation, whereafter petitioner approached this Court in C.W.J.C.No. 12163 of 2006 which was disposed of under orders dated 18.07.2007, Annexure-13 setting aside the appellate order dismissing the appeal on the ground of limitation with further direction to the appellate authority to consider the appeal on merits. In compliance of the order of the High Court dated 18.07.2007, Annexure-13 Commissioner, Purnea Division has considered the appeal filed by the petitioner against the dismissal order and having considered the same dismissed the appeal. 5. Petitioner challenged the dismissal, appellate 5 order on merits as also on technical ground of failure by the authorities to pay the petitioner subsistence allowance during the conduction of the departmental proceeding although representation was made by the petitioner for payment of subsistence allowance under letter dated 25.03.2004 which is at page 144 of the records produced before this Court. It is submitted on behalf of the petitioner that on account of failure to pay the subsistence allowance during the departmental proceeding he was on verge of starvation and could not participate in the proceeding so as to fully refute the charges levelled against him. In this connection learned counsel for the petitioner has relied on the judgment of the Hon’ble Supreme Court in the case of Ghanshyam Das Shrivastava Vs. State of Madhya Pradesh, reported in A.I.R. 1973 Supreme Court 1183 paragraphs 4,5 as also on the other judgment of the Hon’ble Supreme Court in the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. And another, reported in (1993) 3 SCC 679 paragraphs 26,27,30 and submitted that failure to pay the subsistence allowance to a suspended employee can be likened to slow poisoning the employee as on account of non-payment of subsistence allowance he would gradually starve to death. In the instant case petitioner was placed under suspension under order dated 10.11.2003. The charge-sheet was served on him on 17.12.2003. Soon thereafter he filed his written defence on 13.01.2004 and the enquiry proceeding commenced and concluded vide report dated 23.06.2004. 6 Meanwhile petitioner submitted letter dated 25.03.2004 asking for subsistence allowance but continued to participate in the proceeding inspite of non-payment of the subsistence allowance, in the circumstances, in my opinion, petitioner never starved. Had he starved, there was no occasion for him to participate in the departmental proceeding. Had he not participated in the departmental proceeding and the departmental proceeding concluded ex parte, this Court may have considered to remit back the matter with direction to proceed with the departmental proceeding after paying subsistence allowance to the petitioner. In the instant case subsistence allowance was paid to the petitioner later on in compliance of the order of the appellate authority. In this connection I may refer to the observation of the Hon’ble Supreme Court itself in the case of Ghanshyam Das Shrivastava (supra), whereunder Their Lordship of the Hon’ble Supreme Court set aside the ex parte departmental enquiry proceeding as it was the consistent case of the delinquent employee that on account of non- payment of the subsistence allowance he could not participate in the departmental proceeding. In the case in hand, notwithstanding the letter of the petitioner dated 25.03.2004 asking the Enquiry Officer that he is not being paid the subsistence allowance petitioner continued to participate in the proceeding and no prejudice appears to have been caused to him on account of non-payment of the subsistence allowance during the conduction of the 7 departmental proceeding. In this connection I may also refer to the letter dated 25.03.2004, whereunder petitioner has not stated that it is difficult for him to participate in the proceeding as he has no other source of income to meet his two ends and he continued to participate in the departmental proceeding. It is, thus, quite evident that inspite of non-payment of the subsistence allowance to the petitioner during the departmental proceeding he has not been prejudiced in conduction of the proceeding as he has participated in the departmental proceeding by filing show- cause and appearing before the conducting officer as also by filing second show-cause reply before the disciplinary authority. 6. Now, coming to the merits of the case learned counsel for the petitioner submitted that in order to bring home the charges levelled against the petitioner no witness was examined. True it is that oral evidence was not led in the departmental proceeding in view of documentary evidence i.e. Mutation Records of Case No. 126/1990-91 and 127/1990-91, whereunder proceedings were taken to create Jamabandi in favour of the beneficiary of the surplus land by the petitioner himself who having created the jamabandi in favour of the beneficiary i.e. landless persons did not reduce the surplus land from the Jamabandi of the land holder which enabled the land holder to obtain land revenue receipt until 31.03.2003 on the basis of which the land-holder raised dispute about title and possession over the surplus 8 land leading to the occurrence dated 11.08.2003. 7. In view of the documentary evidence in the nature of the case records of Jamabandi Case No. 126, 127/1990-91, whereunder Jamabandi with regard to the surplus land was already created in favour of the landless beneficiary it was incumbent upon the petitioner to have reduced the land for which Jamabandi was created in favour of the landless beneficiary from the Jamabandi of the land- holder. Had he reduced the Jamabandi of the land-holder with respect to the surplus land the land-holder could not have obtained land revenue receipt for the surplus land until 31.03.2003 and if he had not obtained those receipts there was no occasion for him to assert his possession over the surplus lands and had he not asserted his possession with the surplus land on the basis of those receipts the occurrence dated 11.08.2003 may not have taken place. In the facts of the case the examination of the oral evidence, in my opinion was not at all necessary. In view of my finding above, I do not find any error in the order passed by the disciplinary, appellate authority. 8. The writ petition is, accordingly, dismissed. A.F.R. P.K.P. (V.N.Sinha,J.)