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
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
imposed is thus excessive in the nature of the findings of the
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
“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
P. Kumar (Navin Sinha, J.)