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2007 DIGILAW 398 (PAT)

Ashok Kumar Das v. State Of Bihar

2007-02-22

AJAY KUMAR TRIPATHI

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner was an employee of Bihar State Electricity Board and was working as Head Clerk at Madhubani. At the relevant time one Amar Nath Jha, Choukidar was posted in the office. In the service book of Amar Nath Jha an interpolation was made and his date of birth was changed from 4.1.1929 to 4.1.1939. By virtue of this interpolation the said Amar Nath Jha continued in service for ten extra years. 3. Complaint about large scale interpolation in service books of various employees was pouring in at the headquarter. There was also report with regard to the office where the present petitioner was posted as head clerk. By virtue of his post, he was in complete control of the records, more so of the service books of the employees posted in the office under him. It is alleged that various correspondence were made by competent authorities but the petitioner intentionally avoided the issue and for more than two years, it is said, that he sat over the file, thereby enabling the said Amar Nath Jha to superannuate after almost ten years of service. 4. When the various communications did not get any response or cooperation from the petitioner, a team had to be sent to the concerned office and the team after enquiry did corroborate that there was interpolation in the service book and it was palpable on the very first look. On question being put to him as to his non-response or non-cooperation he avoided the issue. 5. The respondents, in this background, decided to initiate a departmental enquiry against him and the charges were served upon the delinquent i.e. the petitioner. During the course of enquiry it is recorded that he did not cooperate but kept avoiding the issue on the ground that relevant records have not been furnished to him, thereby not allowing him to defend himself properly. It is nowhere indicated in the writ application as to what actually were the documents which the petitioner wanted to see for his response. Non-furnishing of documents at times is used as standard defence for prolonging the enquiry and at times is also used as one of the grounds at a subsequent stage. It is nowhere indicated in the writ application as to what actually were the documents which the petitioner wanted to see for his response. Non-furnishing of documents at times is used as standard defence for prolonging the enquiry and at times is also used as one of the grounds at a subsequent stage. Courts therefore in recent time have taken a view that such pleading about non-furnishing of documents must be specific and not only that the petitioner must establish the prejudice which has been caused to him due to non-supply of those documents. In any view of the matter the enquiry was conducted in his presence and the enquiry officer recorded a finding of guilt with regard to the fact that the petitioner sat over the matter for almost two years and that enabled the employee who had interpolated his service book to continue in service and retire after ten years. 6. One thing however is clear from perusal of the enquiry reports, the order of disciplinary authority as well as the appellate authority that they have not found any act or complicity of the petitioner in the said interpolation of the service book, in fact, no effort of finding that out was also made. What was however recorded was that the petitioner avoided the issue and sat over the matter for two years and ignored the direction issued from the headquarters in this regard. This act of the petitioner surely did cause problem for the administration since it had to continue with the service of a dead wood when otherwise he would have retired ten years ago. 7. However, another aspect of the matter is that though the petitioner was found guilty of dereliction of duty and may be indiscipline, but the question is whether the charge or the allegation was so serious so as to impose punishment of dismissal against him. The order of dismissal is like a death sentence imposed upon an employee and more so if he had served the organisation for a very long time. This dismissal was not only supposed to an end his regular source of income which sustained him or his family but would also deprive him of all his retiral benefits which got accumulated by virtue of long period of service. 8. This dismissal was not only supposed to an end his regular source of income which sustained him or his family but would also deprive him of all his retiral benefits which got accumulated by virtue of long period of service. 8. The Court have to look into this aspect whether the gravity of the offence or the charges which have been brought and also proved against a delinquent is high enough to pass the ultimate sentence or punishment of dismissal. The Courts in recent times have held that excessive punishment also amounts to violation of Article 14 of the Constitution of India because disproportionate punishment on the face of it, is an arbitrary exercise of power. 9. In the background of the above legal proposition now it has to be examined whether the petitioners conduct or the charges were such that no other punishment except dismissal could be imposed. From perusal of the impugned order, as already recorded above there is no allegation that the petitioner was instrumental in interpolation of the service book of the employee in question though the petitioner was the head clerk of the organisation and the service books were under his custody and non-production and non-furnishing the details of the same on being demanded by superior authority does amount to misconduct on his part. But it cannot be said to be of such a higher order that no other punishment except dismissal could be imposed. The petitioner could be inefficient, the petitioner could be indifferent or he could be incompetent by virtue of which he has landed himself in the present situation. But what is the price he has to pay for such act. The question is whether for such omission could his family be deprived of retirement benefits as well as punished for the said act on the part of the petitioner. 10. This Court feels looking at the nature of the charges and evidence which has come against him, that the disciplinary authority has been excessively harsh and the order of dismissal is shocking to the conscious. But looking at the findings and materials recorded against him he cannot be exonerated of his conduct totally also. This Court feels that for end of justice an order of compulsory retirement may be more than appropriate/sufficient in the present case instead of order of dismissal. 11. But looking at the findings and materials recorded against him he cannot be exonerated of his conduct totally also. This Court feels that for end of justice an order of compulsory retirement may be more than appropriate/sufficient in the present case instead of order of dismissal. 11. Accordingly on the ground that the punishment is excessive, this Court is of the opinion that respondent would consider the matter of the petitioner afresh and may convert the order of dismissal into one of compulsory retirement. In view of the discussions made above, the order of dismissal contained in annexures 11 and 13 to that extent stands quashed. This writ application is allowed to the extent indicated above.