@JUDGMENTTAG-ORDER
Ajay Kr. Tripathi, J.@mdashHeard learned Counsel for the parties.
2. The order of punishment has come to visit the Petitioner which he has decided to challenge in the present writ application. The order of
punishment is dated 7.10.1987 which has been annexed as Annexure-2 to the writ application.
3. Two kinds of punishment has been imposed upon the Petitioner one, reversion to the post of literate constable for a period of three years and
the second is non-payment of salary and other allowances to the Petitioner for the period of suspension except the subsistence allowance.
4. The punishment order has come to be challenged now in the present writ application because the Petitioner had earlier challenged the two
orders of punishment which came to visit him in a common writ application. In the earlier writ application learned Single Judge quashed one of the
orders of punishment and remanded the matter for fresh enquiry. But so far the present order of punishment contained in Annexure-2 is concerned,
Petitioner was given liberty to file or challenge it in yet another writ application. The order of learned Single Judge passed in the earlier writ
application is dated 3.9.2004 and that is the reason why 1987 order of punishment is being challenged now.
5. There are two submissions made assailing the order, both on the count of quantum and the manner in which the punishment has been imposed.
Submission of learned Counsel is that the Petitioner was charged on five counts. Enquiry was held by the enquiry officer and, on those charges, he
opined that the Petitioner was not guilty on any of the counts. Except one count i.e. misbehaviour with his colleague, other charges related to
unauthorized absence of the Petitioner from duty.
6. The enquiry officer in so far as the charge of absence is concerned has categorically recorded that all the absence of the Petitioner has been
regularized by grant of various kinds of leave which was available to him and once the competent authority allowed those leaves to be adjusted
against his absence it no longer remained unauthorized. If he was not covered by those sanctioned leave then the question would have been
otherwise.
7. On the count of misbehaviour there was no clear evidence against the Petitioner and the witness did not support the matter to the extent where
the Petitioner could be held to be guilty of that charge.
8. The disciplinary authority however disagreed with the findings and he gave a notice of disagreement with the reason for disagreement. The
primary reason given in the notice of disagreement is that merely because leave was authorized it does not make the absence of the Petitioner to be
without the sanction of the authority concerned. The authorization of leave was a subsequent event but absence of the Petitioner was an issue,
against which he can be proceeded. The exoneration of the Petitioner by the enquiry officer therefore was wrong. He also held that there is
evidence that there was exchange of words between the Petitioner and the colleague. But what actually transpired ought to have been thoroughly
examined by the enquiry officer. Since it was not done it cannot be presumed that the Petitioner had not misbehaved.
9. Learned Counsel for the Petitioner is correct in saying that disagreement is based more on inference and perverse logic rather than actual
material for disagreement. The issue of the Petitioner being unauthorisedly absent no longer remained an issue if the competent authority had
regularized that period by grant of leave to the Petitioner. It was open for the concerned authority not to authorise that leave later, on the ground
that the Petitioner was habitual in absenting and disappearing from duty and that he was not entitled for the benefit of regularization of the period of
absence. But to hold after regularization of leave that the period of absence to be without authority would be doing violence to a benefit which had
already accrued in favour of the Petitioner, by action of the Respondents themselves. A charge cannot be proved on the basis of inference. There
has to be categorical evidence to pronounce a person guilty of what he had been charged with.
10. Obviously the above element and components are missing from the order of disagreement or the notice issued by the disciplinary authority. If it
is so then the punishment cannot be based merely because the disciplinary authority chose to disagree with the finding recorded by the enquiry
officer. This part of the reasoning will be available for both the punishments which came to be imposed against the Petitioner.
11. Learned Counsel brings to my notice a Division Bench decision rendered in the case of Dinesh Prasad Vs. State of Bihar and Others, for the
proposition that the second punishment of withholding the payment of salary and other allowances for the period of suspension except the
subsistence allowance cannot be passed without taking recourse to Rule 97 (3) of the Bihar Service Code. There is no evidence on record to
show that the provision of Rule 97 (3) was pressed into service before imposing the second punishment upon the Petitioner. Non-compliance of
the procedure laid down in Rule 97 (3) of the Bihar Service Code would require interference with such an order.
12. Learned Counsel representing the Respondents submits that in a short span of time of service nine kinds of punishments have came to be
imposed upon the Petitioner for similar kind of indiscretion in the past and the disciplinary authority has taken note of such a fact before imposing
the punishment. The punishment order has been based taking into consideration the service record of the Petitioner which is not complementary to
the Petitioner in any manner.
13. The Petitioner is not being punished for earning nine punishments in the past. The punishment is for the current set of charges. Once a
punishment is imposed the matter comes to rest. Past punishment cannot be made a ground to impose punishment in the present proceeding. The
Petitioner has been punished for a new set of charges for which enquiry was held. There was no finding of guilt by the enquiry officer and so-called
material for disagreement and reason given by the disciplinary authority is erroneous and misplaced.
14. For the reasons as above this writ application is allowed and the order of punishment contained in Annexure-2 dated 7.10.1987 stands
quashed.