JUDGMENT
R.S. Garg, J.
1. Heard learned counsel for the parties.
2. The petitioner being aggrieved by Memo No. 1784 dated 6.10.1997 issued by the Managing Director, Bihar State Financial Corporation, Patna preferred an appeal and as the said appeal also has been dismissed awarding enhanced punishment, the petitioner now has come to this Court.
3. The facts in nutshell are that on 2.2.1995 the petitioner was posted at the site of a takeover unit M/s. Bharat Briquette Industries, Industrial Area, Gaya to safeguard the mortgaged assets. He was issued notice that during inspection of the unit on 1.6.1986 he was found absent from duty in an unauthorised manner. That during inspection on 1.8.1996 it was found that doors, window frames, asbestos of the roofs of the shed and some machines were stolen from the mortgaged site but Sri Das (the petitioner) did not inform the Branch Office about the theft of the above items. That during posting of the petitioner as Guard in the above named unit theft of machines had occurred earlier also for which an FIR was lodged but even then he did not take any care to protect the assets of the unit and thereby grossly neglected his duties causing huge loss to the Corporation. That he was seldom found at the factory site of the above unit and did not perform his duties honestly and faithfully. That on another visit on 20.8.1996 he was again found absent unauthorisedly and it was found that all the mortgage assets were removed from the site. That the petitioner for his wrongful gain by his above acts of omission and commission caused wrongful toss to the Corporation to the tune of Rs. 2.84 lacs i.e. the value of the stolen assets.
4. In his reply the petitioner submitted that the factory is situated at the God’s forsaken place, when he was as posted as a Guard, the factory was in shambles, the window and the door panels were missing asbestos roof sheets were also missing and it was not possible to take proper care of the assets. His further explanation was that his wife was a patient of cancer and as he was to look after her, he made an application to the said Branch Manager but the said application was not considered and necessitated by the circumstances he had to leave to attend his ailing wife. His further explanation was that even if the items had been stolen from the undertaken unit, the petitioner cannot be held liable because there are no lapses on his part. The matter was put into enquiry. The department in its wisdom did not propose to examine any witness but the enquiry officer gave proper opportunity to the petitioner to place his defence and justify his stand. On conclusion of the enquiry, notice to show cause was issued to him and thereafter the punishment of compulsory retirement was issued against him. The petitioner preferred an appeal. The order was confirmed but in the meanwhile the petitioner was acquitted by the criminal Court, therefore, this Court set aside the appellate order and remitted the matter back to the appellate authority to pass a fresh order after taking into consideration the impact and effect of the order passed by the criminal Court. This time vide Annexure-20, the communication dated 25.9.2003, the petitioner informed that the Board of Directors in its meeting held on 29.8.2003 have revised the punishment and have converted the same from compulsory retirement to dismissal. Being aggrieved by the said order, the petitioner has again come to this Court.
5. Submissions of the learned counsel for the petitioner are that as time and again the petitioner was submitting his applications for leave so that he could go to attend his ailing wife and leave was not granted to him, he was forced to leave and in any case if any mishap took place in his absence he could not be held liable. It is also his say that on an earlier occasion he had informed the Branch Office that the properties were in shambles and the door panels were missing. It is submitted by the learned counsel for the petitioner that unless the charges are initially proved by the Department, the petitioner could not be called upto submit his explanation. It is also submitted by him that the punishment of compulsory retirement could not be enhanced to the punishment of dismissal from service.
6. On the other hand learned counsel for the respondents submits that petitioner’s unauthorised absence is not a fact in dispute. According to him, the material facts have been admitted by him, therefore, burden of proof was upon the petitioner to prove his explanations and justify the same. Regarding enhancement of punishment it is submitted that that part of the appellate order may be modified by this Court.
7. It is also contended at this stage that the petitioner was posted as a Guard all alone for round the clock duty. As he had to go to the Branch for collecting his salary and for taking daily food etc., if some wrong has taken place, for that the petitioner cannot be held liable. So far as the appointment of the petitioner as a Gaurd is concerned, the fact is not in dispute. The petitioner when was appointed at the place/site and he knew that he would be required to be there round the clock then he himself was required to make provisions for his food etc. A guard cannot be allowed to say that as and when he wants he would leave the premises, go to other place and return back to the posted place after some time. If such things are allowed to happen then the purpose of appointing a Guard would stand nullified. In any case the petitioner’s own say is that after submitting the application which was not granted, the petitioner left the site of his posting. If this was the conduct of a Guard, who was required to protect the property round the clock then the authorities shall be justified in taking an action against him. In the present matter, examination of the witnesses by the Department was not necessary because the factual aspect of the matter was admitted by the petitioner and he was simply submitting his justifications and explanations. Under such circumstances, the burden of proof was on the petitioner and if he failed to discharge the burden then on his own admission the finding into his guilt can be recorded.
8. According to the petitioner, certain past happenings have also been taken into consideration without giving any opportunity to the petitioner to meet the same. In the opinion of this Court, that would not make much difference because the Enquiry Officer’s report is that on the date of inspection the petitioner was found absent, he absented himself unauthorisedly and during his posting as a Gaurd not only one or two but all the articles lying at the site were removed. If that be so, the authority would certainly be justified in recording a finding into the guilt of the petitioner.
9. So far as the award of punishment is concerned, it was well within the jurisdiction of the authority. If a Guard remains absent then he certainly is not entitled to continue in the services. His discontinuance in form of compulsory retirement was absolutely justified.
10. So far as the enhanced punishment of dismissal is concerned, the same could not be awarded to the petitioner in the appeal filed by the petitioner especially when he was given no opportunity of hearing in relation to enhancement of punishment. That part of the appellate order deserves to and is accordingly quashed. It is hereby observed that instead of being dismissed from services, the petitioner would stand compulsory retired from the services.
11. With the modifications above in the appellate order, this petition is
disposed of.