IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.872 of 2007 Murli Dhar Mishra, son of Late R.M Mishra, aged about 46 years, resident of Village Kusurupa, P.S. Rajpur, District- Buxar. ...... Petitioner. Versus 1. Bihar State Financial Corporation, Fraser Road, Patna through its Managing Director. 2. The Board of Directors of Bihar State Financial Corporation, Fraser Road, Patna through its Chairman. 3. Sri Subhash Sharma, son of name not known, presently posted as Chairman, Bihar School Examination Board, Sinha Library Road, Patna. 4. Sri Ashok Kumar, son of name not known, Assistant General Manager, Bihar State Financial Corporation, Fraser Road, Patna. ..... Respondents. ----------- 08- 1.12.2008 Heard Mr. Alok Kumar Verma for the petitioner, and Mr. Y.V. Giri for the respondents. It arises out of a disciplinary proceeding, whereby the petitioner has been given the punishment of compulsory retirement. 2. A brief narration of facts essential for disposal of the writ petition may be indicated. The petitioner had joined the services of the Bihar State Financial Corporation (hereinafter referred to as the “Corporation”), on 1.2.1982, as a daily-rated Class-III employee at its Bokaro Branch office, and was absorbed in the permanent services of the Corporation as a Clerk in 1988. One Naresh 2 Prasad Sinha had submitted an application for financial accommodation to set up business in wooden furniture at Balidih, Bokaro Steel City. His application was rejected on 20.11.1986 (Annexure-8), perhaps because of the location of the proposed business premises. It appears that the loanee offered another business premises situate at Sevandih, Bokaro Steel City. The petitioner was thereafter directed to make a local inspection of the land. He inspected the site and submitted his local inspection report dated 26.11.1986 (Annexure-8), which is reproduced in paragraph 6 hereinbelow. 3. The Corporation ultimately sanctioned a loan of Rs.12,000/-, and a sum of Rs.9,000/- was actually disbursed to him. It appears that the loanee fell in arrears leading to departmental proceeding against the present petitioner, and three others who are not petitioners herein. Shri P.K. Jha, Deputy Manager, Grievances Cell of the Head Office, conducted a local inspection of the site in the presence of the Branch Manager and the petitioner, and submitted his report dated 27.5.1996. Charge-sheet dated 2.7.1996 (Annexure-1) was served on the petitioner 3 wherein allegations were levelled against the petitioner of submitting a misleading site inspection report. This was followed by a detailed enquiry. The petitioner participated in the enquiry proceedings. The report was submitted on 29.1.1997 (Annexure-6), followed by the second show-cause notice. He had shown cause. On a consideration of the materials on record, the learned disciplinary authority passed the impugned order of punishment on 22.8.2001 (Annexure-11), whereby the petitioner has been awarded the punishment of compulsory retirement. The departmental appeal was also dismissed by a laconic order. The same was set aside by this Court by its order dated 17.12.2003, passed in C.W.J.C. No.11941 of 2003, and the matter was remitted back to the learned appellate authority to pass a fresh order in accordance with law and the observations made therein. The Board of Directors considered the petitioner’s appeal and rejected the same by a reasoned order passed at its meeting held on 30.9.2005 (Annexure-16), and impugned herein. 4. While assailing the validity of the impugned action, learned counsel for the petitioner submits that no enquiry in the eye 4 of law was held and the petitioner was denied the opportunity of presenting his case. The enquiry report is based on the local inspection report submitted by P.K. Jha on 27.5.1996, copy of which was not made available to the petitioner. He next submits that the relevant materials on record were not considered in the perspective. He also submits that the order of punishment was passed by the learned disciplinary authority who was functioning as Managing Director in officiating capacity which is impermissible in terms of section-17(b) of the State Financial Corporation Act 1951. He relies on a Division Bench judgment of the Himachal Pradesh High Court, reported in 1977 (2) Services Law Reporter 447 (Sat Paul v. The Himachal Pradesh Financial Corporation and others). The submission of the alleged misleading report and non-existence of room thereupon has been raised after a lapse of ten years when the nature, character and user of the land had changed beyond recognition. The business did flourish on that plot of land and the very charges are chimerical. He lastly submits that the punishment meted out to the petitioner is grossly disproportionate to the 5 gravity of the proven charges, in a situation where the entire loan amount has been recovered. 5. Learned counsel for the respondents has supported the impugned action. He submits that the petitioner was in collusion with the loanee and had purposely submitted a misleading site enquiry report. He submitted the report about a non-existent plot and tried to cover it up by stating that the particulars may be verified from the original document. He also committed a grave error of purposely omitting to mention the existence or otherwise of the civil construction thereon. He lastly submits that the three other persons with respect to the same transaction were also proceeded against and have been similarly treated. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. Following is the petitioner’s inspection report: Dy. Manager. As per order dated 26.11.86 I had visited the site of Shri Naresh Prasad Sinha at Sevandih, B.S. City. The details of land and Room Size is here as under:- Khata No.- 7 Joint Plot No. - 202 Area- 5 Dismals Mohalla- Sevandih (near Singh 6 Hotel). The said Khata No. and Plot may be verified from original deed before legal documentation. This is for your information and n.a. Sd/-illegible (Murlidhar Mishra) Dated 26.11.86 (Emphasis added) In my opinion, two defects are discernible in the inspection report. The petitioner does not seem to have made the requisite effort to connect the details of land with the title deed and abdicated this part of the duty in favour of the superiors. Secondly, he purposely omitted to mention the description of the civil construction or the absence of it. It is thus manifest that the petitioner was surely guilty of submitting a defective report. I, therefore, hold that that he was guilty of the charge and deserves punishment. 7. The quantum of punishment needs serious consideration. Learned counsel for the petitioner has rightly relied on the judgment of the Supreme Court, reported in (2007)4 S.C.C. 669 (Coimbatore District Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Association and another) which on all fours is applicable to the facts and 7 circumstances of the present case. The punishment of compulsory retirement meted out to the petitioner seems to me to be disproportionate to the gravity of the proven charges. The petitioner has placed on record a supplementary affidavit, paragraph 3 of which is reproduced hereinbelow for the facility of quick reference: “3. That it is respectfully stated and submitted that for giving quietus to the on going litigation the petitioner, if reinstated back in the service of Bihar State Financial Corporation, would forego back wages.” 8. Learned counsel for the respondents submits that the punishment meted out to the petitioner is justified, and is consistent with the approach of the Corporation in relation to its similarly circumstanced employees whose details are given in the supplementary counter affidavit. A few factors, however, operate in favour of the petitioner. He had started working in the Corporation on 1.2.1982 as a Class-III employee on daily-wages, and was working in the same capacity on 26.11.1986 (Annexure-8), the date on which he has submitted his report. How much can be expected from a daily-wager needs consideration. Secondly, in so far as the first 8 part of the report is concerned, relating to details of land, he did not make attempt to mislead the Corporation which is distinct from abdication of functions. Indeed he did state in the report that the details may be verified from the original documents. In so far as the second part of the report is concerned, the petitioner has purposely failed to provide the description of the civil construction which really weighs against him. Its existence at that point of time seems to be in doubt. Thirdly, a sum of Rs.12,000/- as loan amount was sanctioned in favour of the loanee, but he had availed of a sum of Rs.9,000/-, which even in 1986-87 were small amounts. In the hind-sight, the entire loan amount has later on been recovered. 9. I would, therefore, prefer to accept the petitioner’s offer and partly allow this writ petition. The order of compulsory retirement is hereby replaced by reinstatement in service without arrears of salary. He shall henceforth be entitled to the salary/pay-scale he had last drawn with the replacement salary/pay-scale. There shall be no break in service and the period so far shall be counted for the purposes of post-retirement benefits. 9 The orders of the learned disciplinary authority (Annexue-11), as well as the appellate authority (Annexure-16), are accordingly modified. 10. The writ petition is accordingly allowed in part. (S K Katriar, J.) S.K.Pathak/