IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3743 of 2009 Ranjit Prasad Yadav, son of Late Ram Lagan Rai resident of village-Ishopur, P.S. Phulwarisharif, Town and District- Patna ………..petitioner. Versus 1. The State Of Bihar through Secretary, Home Department, Government of Bihar, Main Secretariat, Patna. 2. Deputy Secretary, Home Department, Government of Bihar, Main Secretariat, Patna. 3. Inspector General (Prison), Home Department, Government of Bihar, Main Secretariat, Patna. 4. Superintendent, Sub-Jail, Rosera. ……….. Respondents. ----------- 02. 15.07.2011 Heard learned counsel for the petitioner and the State. The present is yet another case in which despite passage of nearly two and half years no counter affidavit has been filed. The Court is not inclined to adjourn the matter for that purpose in view of the nature of the order to be passed. The petitioner is stated to have been a Warder in the Camp Jail, Phulwarisharif. He was served with a memo of charge for having permitted entry of unauthorized food and drugged items into the Jail premises on 19.01.1999, when he was on duty. On the same day later in the night certain prisoners are stated to have escaped. Departmental proceedings were drawn up against the Head Warder Sri Gauri Ram and others. In the two separate departmental proceedings, both the petitioner and Gauri Ram were punished. The appeal preferred by the petitioner has been rejected. He has been visited with the final punishment of stoppage of three annual increments with non- cumulative effect, that no promotion was to be considered for two years and that nothing beyond subsistence allowance shall be paid for 2 the period of suspension. Learned counsel for the petitioner submits that the allegations against the petitioner and the Head Warder were in continuity for an occurrence of the same date within hours. The allegations against the Head Warder were much more serious. The Head Warder was likewise punished by imposition of similar punishment but the Inspector General, Prison cell has exonerated him from all the charges and ordered payment of arrears for the period of suspension. If the respondents had filed a counter affidavit, the controversy may have been brought to an end either ways. There can be no two opinions that Head Warder is a person senior in rank to the petitioner. On the same day within hours, the petitioner is alleged to have allowed entry of food items and liquor while the Head Warder was alleged to have allowed prisoners to escape. The allegations against the latter appear to be far more serious. Learned counsel for the petitioner also urges that at the time the petitioner was on duty the Head Warder was also on duty. There can be no two opinions that the responsibilities and answerabilities of a Head Warder are higher than that of a Warder unless there be specific attributes of the allegations not being at par with each other. Presently from the enquiry report annexed of the two that does not appear to be the case. Considering the question of discrimination in punishment pursuant to a departmental proceeding, it has been held 3 that the principle of Article 14 of the Constitute shall apply and there could be no disparity and/or discrimination in punishment except for justifiable reasons. There had to be parity in punishment. This principle has been considered in (2010) 5 SCC 783 (State of Uttar Pradesh V. Raj Pal Singh) at paragraph 5 as follows:- 5. Though, on principle the ratio in aforesaid cases would ordinarily apply, but in the case in hand, the High Court appears to have considered the nature of charges leveled against the five employees who stood charged on account of the incident that happened on the same day and then the High Court came to the conclusion that since the gravity of charges was the same, it was not open for the disciplinary authority to impose different punishments for different delinquents. The reasoning given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees. If what the petitioner contends is correct, and the Head Warder has been exonerated and paid full salary for the period of suspension, prima facie there appears no justification in the action of the respondents in denying the same treatment to the petitioner. Let the respondent Secretary, Home Department, Government of Bihar, consider the claims of the petitioner for parity in treatment with the Head Warder when the impugned order dated 27.02.2009 shall be no impediment in such reconsideration under the 4 directions of the Court. Let the order be complied with in consideration for parity afresh within two months from the date of receipt/production of a copy of this order. The court further directs that if the respondents find justification in the case of the petitioner, all necessary consequential orders shall be issued simultaneously and the actual physical benefits, if any, of the order shall also be made available within the same period. The application stands disposed. Devendra ( Navin Sinha,J.)