PANPATI DEVI vs STATE OF BIHAR THROUGH CHAIRMAN, BIHAR STATE ELECTRICITY BOARD, BAILY ROAD, PATNA

After the death of the writ-petitionerParmeshwar Lohar, an application for substitution was filed which was dismissed in default on 12.05.2010. A

second application for substitution vide, I.A. No.8927 of 2017 was filed, in which by an order dated 29.l1.2017 wife of the writ-petitioner namely,

Panpati Devi has been substituted in his place.Â

The petitioner has challenged the penalty order dated 15.03.1999 and the appellate order dated 13.03.2000. He has also questioned legality of order

dated 08.03.1996 by which he was placed under suspension. Â

Briefly stated, husband of the petitioner was appointed as Sectional Clerk under Bihar State Electricity Board on 23.05.1966 and he was promoted

to the post of Head Clerk on 09.03.1991. On the allegation of dereliction of duty, violation of Board’s rules, conspiracy, forgery etc. he was

suspended on 08.03.1996. By an order dated 04.11.1996 departmental proceeding against the husband of the petitioner for misconduct under

Clause-29B of the Certified Standing Order was started and he was served charge-memo dated 02.11.1996. He submitted his representation in which

grievance raised by him pertains to non-supply of preliminary enquiry report, list of money receipt books and denial of permission to inspect the

documents. An enquiry report was submitted on 01.09.1998 and the delinquent employee was issued second show-cause notice on 22.12.1998, in

response thereof, he has submitted reply on 18.01.1999. By the penalty order dated 15.03.1999 husband of the petitioner was dismissed from

service. After filing the appeal against the dismissal order dated 15.03.1999, husband of the petitioner approached the Patna High Court in

C.W.J.C. No.659 of 1999. The writ petition was disposed of by an order dated 19.07.1999 with a direction to the appellate authority to dispose of

his appeal within three months. By order dated 13.03.2000 the appeal preferred by him was dismissed.   Â

By an order dated 29.06.2004 the writ petition was confined to the question of proportionality of punishment. Â

Contending that husband of the petitioner has suffered serious prejudice during the departmental enquiry on account of non-supply of documents,

Ms. Khalida Haya Rashmi, the learned counsel for the petitioner submits that the penalty of dismissal from service is definitely disproportionate to the

charges framed and found proved against the husband of the petitioner.Â

The learned counsel for the respondentJUVNL, however, submits that quantum of punishment falls exclusively within the domain of the

departmental authorities and once charges framed against the delinquent employee have been found proved it is not open to the delinquent employee

to question the legality of quantum of punishment in the writ proceeding. Â

Charge against the husband of the petitioner is, that without approval of Electrical Executive Engineer and Assistant Electrical Engineer he has

issued ten money receipt books to Surendra Kumar, un-skilled Khalasi, who alongwith Vijay Kumar, Junior Clerk defalcated Rs.1,05,061.26. In his

reply to second show-cause notice, husband of the petitioner has asserted that the money receipt books which were issued to Surendra Kumar were

not used for defalcation of Rs.1, 05,061.26 rather, money receipt book no.398 which was received by Vijay Kumar on 17.01.1995 was used for issuing

receipt to the consumers. In his reply, the delinquent employee, narrating the procedure of collection of electric charges and issue of money

receipts, has asserted that Assistant Electrical Engineer, Sub-divisional Cashier, Electrical Executive Engineer, Bill Clerk, Bill Superintendent all are

involved in the process, however, they have failed to detect defalcation by Surendra Kumar. Stand of the delinquent employee in paragraph no.(1)

(page-3) of the appeal preferred by him would reflect that he was not supplied a copy of preliminary enquiry report, list of money receipt book and the

copy of D.C.R. which has been mentioned in the charge-sheet. The witness-Ram Nath Prasad who was Treasure Guard was not produced for

cross-examination and co-accused namely, A. K. Sinha and Tara Nand Deo Arvind were examined as witnesses of the department to prove the

charge framed against the petitioner. Several judgments of the Supreme Court have been cited in this appeal-memo, however, the appellate order

does not refer to any of the legal issues raised by the husband of the petitioner. The penalty order dated 15.03.1999 merely records that reply of the

employee to the second show-cause notice has been found not satisfactory, and the appellate authority, observing that leniency in these matters is not

warranted rather the delinquent employee deserves stringent punishment, dismissed the appeal preferred by the husband of the petitioner.  Â

In “Rajit Thakur Vs. Union of India & Ors.†reported in (1987) 4 SCC 611, the Hon’ble Supreme Court has held,  “Judicial review

generally speaking, is not directed against a decision, but is directed against the “decision-making processâ€. The question of the choice and

quantum of punishment is within the jurisdiction and discretion of the courtmartial. But the sentence has to suit the offence and the offender. It

should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to

conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even an aspect which is,

otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then

the sentence would not be immune from correction. Irrationality and perversity are recognized grounds of judicial review.â€​

In “Bhagat Ram Vs. State of Himachal Pradeshâ€, reported in (1983) 2 SCC 442, the Hon’ble Supreme Court has held that the penalty

imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be

violative of Article 14 of the Constitution.

Though inspite of orders passed by this Court copies of enquiry report and second show-cause notice dated 22.12.1998 have not been produced by

the respondents, once the charge framed against the petitioner’s husband is read carefully, it becomes apparent that primary charge against him

was of negligence in discharge of duty, more particularly, in breach of Board’s rules. It is the case of the department that due to negligence of the

delinquent employee in issuing money receipt book, Surendra Kumar and Vijay Kumar succeeded in defalcating Rs.1,05,061.26,

“Jh  ds mi;ZqDr d`R; ls Jh fot; dqekj] duh; ys[kk fyfid@Jh lqjsUnz dqekj] vn{k [kyklh }kjk dh jkf'k 1]05]061-26 :i;s xcu djus dk

ekxZ iz'kLr gqvk vkSj dks mDr jkf'k dh foÙkh; {kfr gqbZAâ€​

Neither the penalty order nor the appellate order records that the delinquent employee was in collusion with the said Surendra Kumar and Vijay

Kumar. It is not the charge framed against the delinquent employee that he was a partner in the crime and he has shared the booty. He has not been

found guilty of defalcation/ misappropriation of money. While examining the quantum of punishment imposed upon a delinquent employee it is the

misconduct committed by the employee which has to be seen and a farfetched consequence of such misconduct, in this case negligence, is not the

determinative factor which would decide the quantum of punishment. May be, the Board has suffered loss of Rs.1,05,061.26, in view of the primary

charge of negligence in discharge of duty framed against the petitioner’s husband, penalty of dismissal from service is definitely disproportionate to

the charge framed and found proved against him and accordingly, the appellate order dated 13.03.2000 is quashed; consequently, the penalty order

dated 15.03.1999 stands quashed.Â

Now, in view of prejudice caused to the delinquent employee due to non-supply of documents,   non-consideration of his defence and the

issues in law raised by him, the matter can be remanded to the disciplinary authority, however, after lapse of about 20 years, in my opinion, it would

serve the interest of justice if the penalty of dismissal from service is converted into compulsory retirement. Ordered accordingly. Â

On account of the penalty of compulsory retirement from service with pension and other post-retiral benefits to the employee, the petitioner shall

be paid family pension and other post-retiral benefits accrued to her husband as on 15.03.1999. During pendency of this writ petition, provident fund

and group insurance amounts have been paid to the petitioner by the respondent-JUVNL.Â

Accordingly, it is ordered that family pension and other post-retiral benefits, if any, shall be paid to the petitioner by the respondent-JUVNL.

The writ petition stands allowed, in the above terms.Â