Dr. Suresh Prasad v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNALetters Patent Appeal No.208 of 2011 In Civil Writ Jurisdiction Case No. 15531 of 2004 ====================================================== Dr. Suresh Prasad S/O Late Narsingh Prasad, R/O Mohalla- Gopeshwar Nagar, Near Income Tax Office, Chapra, P.S.- Town, District- Saran At Chapra .... .... Appellant Versus 1. The State of Bihar through the Commissioner-Cum-Secretary Department of Health, Government of Bihar, Patna 2. The Additional Secretary-Cum-Conducting Officer, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 3. The Joint Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 4. The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna 5. The Under Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna .... .... Respondents ====================================================== Appearance : For the Appellant : Mr. Rajendra Prasad Singh, Sr. Advocate M/s Durga Nand Jha, Onkar Kumar & Rama Kant Singh, Advocates For the Respondents : Mr. Devendra Kr Sinha AAG2 Mr. Alok Kumar Rahi, AC to AAG 2 ====================================================== CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA VERMA And HONOURABLE MR. JUSTICE JAYANANDAN SINGH ORAL ORDER (Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA VERMA) 7 30-10-2012 This letters patent appeal has been filed by the petitioner-appellant against the judgment dated 21.12.2010 passed by the learned Single Judge in CWJC No. 15531 of 2004. The appeal has been filed challenging only part of the judgment by which the learned Single Judge has upheld the order of deduction of 10% pension in view of the enquiry report submitted by the Enquiry Officer and the order passed by the Punishing Authority. The petitioner-appellant was holding the post of Civil Surgeon and in the last three months before his retirement he was chargesheeted and thereafter he retired. After three months show cause notice was given to the petitioner and thereafter punishment was inflicted upon him. The learned Single Judge set aside the punishment of withholding of salary of suspension period but upheld the punishment of withholding of 10% pension. It appears that, after retirement of petitioner, enquiry was continued under Rule 43 (b) of the Bihar Pension Rules. Clause (b) of Rule 43 reads as under:- “…(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement : –Providedthat(a)such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment ; (i) shall not be instituted save with the sanction of the State Government ; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment ; (i) shall not be instituted save with the sanction of the State Government ; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission, shall be consulted before final orders are passed.” From clause (b) of the Rules it is evident that pension can be withheld only when a delinquent officer is found guilty of grave misconduct or is said to have caused pecuniary loss to the Government by misconduct or negligence, during his service including service rendered on re-employment after retirement. The charge against the petitioner was that due to negligence of the petitioner, a huge quantity of medicines expired. This was caused due to non-distribution of medicines timely. The negligence of petitioner deprived a large number of the poor to receive the medicines and expired medicines caused pecuniary loss to the Government in lakhs and lakhs. After considering the entire materials on record, the Enquiry Officer held in sub-para (a) of paragraph 6 that along with petitioner, Dr. Suresh Prasad, his predecessors-in-office were also responsible and there was lapse on the part of the petitioner also as he did not inspect the stores properly and hence found this charge partly proved against him. In sub-para (b) of paragraph 6 of the enquiry report, the Enquiry Officer has held that charge relating to non-distribution of medicines in primary health centres of the District was not found proved as the concerned Medical Officers, who were Deputy Chief Medical Officers, were responsible for the same. In sub-para (c) of paragraph 6 of the enquiry report, the charge of negligence by the petitioner causing pecuniary loss to the Government worth rupees lakhs and lakhs has not been found proved. Thus, from narration of the finding of the Enquiry Officer in sub-paras (a) (b) and (c) of paragraph 6 of the enquiry report it is clear that charge against the petitioner found proved was not grave and no pecuniary loss appears to have been caused by him intentionally on account of any grave misconduct on his part. Thus, order withholding of 10% pension of the petitioner-appellant cannot be sustained. Accordingly, the appeal is allowed. The order withholding of 10% pension of the petitioner is hereby quashed. There shall be no order as to costs. (Prakash Chandra Verma, J) B.T/- (Jayanandan Singh, J)