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2005 DIGILAW 883 (PAT)

Jayada Khatoon v. State Of Bihar

2005-09-26

NARAYAN ROY

body2005
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. Petitioners are duly substituted heirs and legal representatives of deceased petitioner, Md. Khalil, who had filed the present writ application. 3. This writ application is directed against the orders, as contained in annexures 6 and 10, respectively, whereby and whereunder the deceased petitioner has been dismissed from service and his appeal has been dismissed. 4. It appears from the article of charges that the deceased petitioner was proceeded against for temporary defalcation of the toll realised by him amounting to Rs. 147/- and also for his absence from duties. In course of inquiry, the deceased petitioner submitted his explanation stating therein that a sum of Rs. 147/- which was collected by him, could not be deposited, as he met with an accident, which, subsequently, was deposited after 18 days of its realisation. The inquiry officer in course of inquiry considered the explanation filed by the deceased petitioner and submitted an inquiry report suggesting certain punishments other than his dismissal from services and on the basis of the inquiry report the disciplinary authority passed the order, as contained in annexure 6, dismissing the deceased petitioner form services. However, the order impugned, as contained in annexure 6, has been affirmed, in appeal vide order, as contained in annexure 10. 5. It is submitted by learned counsel for the deceased petitioner that the deceased petitioner has fully explained the charges levelled against him in his explanation, which was taken into consideration by the inquiry officer, but no evidence, whatsoever, was led against him to prove the charges. It is further submitted that the inquiry officer, regard being had to the fact that the deceased petitioner was alleged to have misappropriated a sum of Rs. 147/- temporarily, recommended for some punishment other than dismissal from services, but the authorities passed the order of dismissal, which, prima facie, appears to be disproportionate to the guilt. It is also submitted that it is evident from the inquiry report that other materials were also brought on record that the deceased petitioner deposited Rs. 147/- in the Nazarai much before initiation of the departmental proceeding, and, thus, he had no intention to retain the money or to misappropriate the same. 6. It is also submitted that it is evident from the inquiry report that other materials were also brought on record that the deceased petitioner deposited Rs. 147/- in the Nazarai much before initiation of the departmental proceeding, and, thus, he had no intention to retain the money or to misappropriate the same. 6. From the inquiry report, prima facie, it appears that charges were not fully proved against the deceased petitioner, rather an attempt was made to make out a case of temporary defalcation and his absence from duties. No witness has turned up to prove the charge that the deceased petitioner was absent from duties. However, from the materials on record, it appears that there was dereliction of duty on the part of the deceased petitioner, as he could not deposit the collected amount in the Nazarat, but at the same time, it appears that he had no intention to defalcate the Government Money, as he deposited the same much before initiation of the proceeding. 7. Taking into consideration the facts and circumstances of the case, as referred to above, the order of dismissal of the deceased petitioner from services appears to be disproportionate to the guilt and harsh. The suggestion given by the inquiry officer could have been considered by the disciplinary authority in light of the charges and evidence against him. 8. Besides all these questions, it appears that the disciplinary authority had not even assigned any reason as to why stringent view of the matter should be taken by passing an order of punishment of dismissal of the deceased petitioner from services. A delinquent employee may be dismissed from services for dereliction of duty, but at the same time, it should be the duty of the disciplinary authority to impose punishment proportionate to the guilt. 9. From the materials on record, it appears that it is not even a case of misconduct, inasmuch as the deceased petitioner deposited the amount collected by him within 18 days without any reminder being given to him for the same. It simply appears that certain omissions and commissions on the part of the deceased petitioner were found. 10. Regard being had to the facts and circumstances of the case, the orders impugned, as contained in annexures 6 and 10. are not sustainable in law. 11. It simply appears that certain omissions and commissions on the part of the deceased petitioner were found. 10. Regard being had to the facts and circumstances of the case, the orders impugned, as contained in annexures 6 and 10. are not sustainable in law. 11. In the result, this application succeeds and orders impugned, as contained in annexures 6 and 10, are set aside. The matter, however, is remitted to the disciplinary authority to pass an order commensurate with the guilt, as indicated above. No order as to costs.