Dhanushdhari Prasad Yadav vs The State Of Bihar &Amp; Ors on 9 August, 2010

Patna High Court – Orders
Dhanushdhari Prasad Yadav vs The State Of Bihar &Amp; Ors on 9 August, 2010
                 IN THE HIGH COURT OF JUDICATURE AT PATNA
                                   CWJC No.1848 of 2010
         1. DHANUSHDHARI PRASAD YADAV S/O LATE JAGESHWAR
         PRASAD YADAV R/O VILL.- KANAUDI, P.S. WAZIRGANJ, DISTT.-
         GAYA
                                 Versus
         1. THE STATE OF BIHAR THROUGH THE HOME SECRETARY
         GOVT. OF BIHAR, PATNA
         2. THE DIRECTOR GENERAL OF PRISON, GOVT. OF BIHAR,
         PATNA
         3. THE SUPERINTENDENT OF SUB.DIVISIONAL JAIL
         AURANGABAD
         4. THE SUPERINTENDENT OF SUB-DIVISIONAL JAIL NAWADA
         5. THE SUPERINTENDENT OF CENTRAL JAIL GAYA
         6. THE SUPERINTENDENT OF AADRAS CENTRAL JAIL BEUR,
         PATNA
                                             -----------

For the petitioner:- Mr. Khurshid Alam, Adv.
For the State:- Mr. R.C.P. Bharti, Adv.

Mr. Md. Aslam Ansari, Adv.

—————-

2. 9.8.2010 Heard learned counsel for the petitioner and the

State.

The petitioner was proceeded with

departmentally in his capacity as a Warder in the Sub-

Divisional Jail at Nawada when two under trial prisoners

escaped on 4/5th July 1998. He has been visited with

punishment inter alia that nothing beyond subsistence

allowance was payable for the period of suspension.

Counsel for the petitioner contended from the

enquiry report that the enquiry officer has opined that the

window grill through which the prisoners escaped had been

weakened over a period of time. The petitioner therefore

cannot be held guilty for their escape. The punishment
2

imposed is thus excessive in the nature of the findings of the

enquiry officer.

Counsel for the State submitted that in his reply

to the charges and during the proceeding the petitioner had

not denied or disputed that he was on duty when the escape

had taken place.

The charge was that two prisoners escaped

when the petitioner was on duty as the Warder in the Jail. If

he acknowledges that their escape took place during his

duty hours, the charge has been admitted. If the charge

stands admitted, all alleged procedural lapses, if any, in the

departmental proceeding automatically loose their relevance.

The petitioner cannot absolve himself of the liability if the

escape took place during his duty hours and the explanation

given by him has not been found acceptable. This Court

cannot act as an appellate authority to sit over the view of

the enquiry officer and substitute its own view only because

another view may be possible on the same facts.

In view of the Division Bench judgment of this

Court in 2006(4) PLJR 514 (Dinesh Prasad Vs. State of Bihar

& Ors.), the punishment that nothing beyond subsistence

allowance shall be payable for the period of suspension

stands vitiated in absence of prior show cause notice as held

in Paragraph-9 of the aforesaid judgment which reads as

follows:-

3

“9. Apart from these question, so
far the main question for which this matter
has been referred, is concerned, it appears
that for imposing the punishment no. (iii) that
the petitioner shall not get anything for the
period of suspension save and except the
subsistence allowance, the disciplinary
authority was required to give separate show
cause notice to the delinquent in terms of
Rule 97(3) of the Code. This part of the order,
therefore, is not permissible in absence of any
such notice to the delinquent employee”

The punishment to that extent only is quashed.

This Court had held that the charge has been

admitted by the petitioner. The quantum of punishment is

the jurisdiction of the employer normally. This Court is not

satisfied that the nature of punishment imposed calls for

interference by this Court on the aspect of quantum. If the

petitioner represents with regard to the quantum of

punishment and seeks to rely upon any findings during the

enquiry that is a matter to be considered appropriately by

the disciplinary authority itself.

Any such representation is expected to be considered

and disposed off in accordance with law within a maximum

period of three months from the date of receipt and/or

presentation of such representation.

The application stands allowed only to the extent

indicated.

P. Kumar                                        (Navin Sinha, J.)
 

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