NAGENDRA UPADHAYAY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner has been dismissed from service by impugned order no. 3682/93 dated 1. 12. 1993, as contained irr annexure-11, the same is under challenge. The petitioner has also challenged the appellate order dated 9. 8. 94 (Annexure-13), by which the appeal petition of the petitioner has been rejected.

(2.) A departmental proceeding was conducted against the petitioner vide order dated 8. 12. 82 (Annexure-5), three charges were levelled against the petitioner While charge no. 1 was relating to unauthorised absence of the petitioner for a period of 62 days, the other two charges that is charge nos. 2, 3 and 4 were relating to certain acts of omission and commission for which a separate criminal case was also lodged against the petitioner. Day to day proceeding was conducted, in which the petitioner took part and he denied the allegations. The Enquiring Officer submitted his enquiry report as contained in Annexure-6. While the Enquring Officer held that the petitioner is guilty of charge no. 1 (unauthorised absence from duty for 62 days), no finding was given with respect to charge nos. 2 to 4 on the ground that for similar charges criminal case is pending against the petitioner and the matter is subjudice. Thereafter the respondents have come out with the impugned order of dismissal dated 1. 12. 1993 (Annexure-1) punishing the petitioner on the basis of the sole proved charge (charge no. 1 ). The petitioner filed an appeal petition against the same, which has also been rejected by the impugned appellate order dated 9. 8. 94 (Annexure- 13)

(3.) THE counsel for the petitioner submitted that the petitioner having been dismissed from service on the ground that he was absent from duty for 62 days, such punishment is harsh and not proportionate to the gravity of the charges. He referred to one unreported decision of this Court given in the case of Bishwanath Ram vrs. State of Bihar and others passed in C. W. J. C no. 701 of 1995, disposed of on 25. 8. 1995. It is submitted that another person, namely, vishwanath Singh, who was unauthorisedly absent from duty for about 195 days for which one black mark inflicted on him for such absence, which was taken into note in cw. J. C no. 3428 of 1992 as well as in c. W. J. C. no. 701/95. Taking into note the aforesaid punishment inflicted on another constable that of one black mark, this Court by judgment dated 25. 8. 1995 passed in the case of Bishwanath Ram (supra) observed that order of dismissal for lesser period of absence from duty is harsh and the said petitioner was discriminated with. It is contended by the Counsel for the petitioner that if the Constable namely, Vishwanath Singh was inflicted with the punishment of one black mark for unauthorised absence for 195 days, there was no occasion to punish the petitioner with more harsh punishment. He was absent from duty unauthorisedly for 62 days, when the petitioner was holding the post of literate Constable.