IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12100 of 2007 Rajendra Choudhary, son of late Lakshmi Choudhary, resident of Jai Kishan Road, Haziganj, P.S. Chowk, Dist. Patna, at present posted as Clerk in Guru Govind Singh Hospital, Patnacity, P.S. Khajekala, Dist. Patna. -------- Petitioner Versus 1. The State of Bihar. 2. Director-in-Chief, Health Services, Govt. of Bihar. 3. Regional Deputy Director, Health Services, Patna Division, Patna. 4. Superintendent, Patnacity Hospital, Patnacity, Dist. Patna. 5. Niren Kumar, Clerk, posted in Patnacity Hospital, Patna City, P.S. Khajekala, Dist. Patna. ---------- Respondents ----------- For the Petitioner :- Mr. Amitesh Kumar, Adv. For the State :- Mr. Satish Kr. Sinha, AC to SC-1 2 04.11.2011 Heard learned counsel for the parties. The petitioner in this writ application has assailed an order passed by the Superintendent of Patna City Hospital dated 17.8.2007, whereby and whereunder, a total recovery of Rs. 1,56,160.12 paise is sought to be made from him in easy installment of Rs. 5,385/- per month from September, 2007 onwards. Learned counsel for the petitioner would submit that the quantification of Rs. 1,56,160.12 paise is wholly irrational and in fact also includes such period in which the petitioner was not even the Incharge of the stores. 2 Counsel for the State, on the other hand, had explained that the impugned order is only by way of execution of an earlier order of punishment against the petitioner passed on 18.8.2003 and that such order of punishment dated 18.8.2003, having already become final, the petitioner cannot question it indirectly by assailing the impugned order dated 17.8.2007. In the considered opinion of this Court, the petitioner cannot altogether claim immunity from recovery of amount, inasmuch as, a departmental proceeding was initiated against him by framing memo of charge on 5.12.2002 as with regard to his act of omission and commission while holding the post of Store Keeper in Guru Govind Singh Hospital, Patnacity. In the said departmental proceeding, the enquiry officer had submitted his report on 21.2.2003 whereafter a final order of punishment was passed on 18.8.2003, relevant portion whereof reads as follows:- ^^lapkyu inkf/kdkjh ds i=kad 73 fnukad 21&2&03 ds }kjk izfrosfnr tkWp izfrosnu ds vkyksd esa Jh jktsUnz pkS/kjh Hk.Mkjiky] Jh xq: xksfoUn flag vLirky iVuk flVh dks bl dk;kZy; ds vkns'k Kkikad 656 fnukad 01&12&02 dks fujLr djrs gq;s rRdkfyu izHkko ls fuEufyf[kr fu.kZ; ysrs gq;s fuyacu ls eqDr fd;k tkrk gSA ¼1½ fuyacu vof/k dks dk;kZof/k ekurs gq;s osru dk “ks’k jkf”k ns; gksxkA ¼2½ fuyacu ls eqfDr ds i'pkr Jh pkS/kjh Hk.Mkjiky@ys[kk dk;Z ls oafpr jgsaxsA 3 ¼3½ Jh pkS/kjh dks mik/kh{kd] iVuk flVh vLirky vius Lrj ls fyfid ds in ds fo:/k lek;ksftr djsaxsA ¼4½ frfFk okn nokvksa dh dher dh clwyh dk vadyu ds laca/k esa mik/kh{kd ls izkIr izfrosnu ds vk/kkj ij Jh pkS/kjh ,oa izHkkjh Hk.Mkj inkf/kdkjh ls cjkcj&cjkcj dh olwyh dh dkjokbZ mudh lsok vof/k dks ns[krs gq;s fdLrokj fu/kkZj.k vlSfud “kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] iVuk vius Lrj ls djsaxsA g0@& {ks=h; mifuns'kd LokLF; lsok;sa iVuk izeaMy] iVukA Kkikad 840@ iVuk] fnukad 18-8-2003** It has to be noted that the said order dated 18.8.2003 even after being sought to be reviewed at the instance of the petitioner did not lead to its being totally obliterated save and except that punishment no.2 of the petitioner being divested from the work of Store Keeper/ Accounts for all the time in future was only sought to be recalled by the order of the Regional Deputy Director of Health, Patna Division dated 18.1.2007 (Annexure-6). In other words, the order for recovery of the amount of expired medicine was upheld and has become final. Learned Counsel for the State therefore seems to be correct that even the audit objection was also partly to the same effect that the petitioner was responsible in not properly accounting and handing-over charge of the amount inasmuch as, the auditors had recorded as follows:- ^^¼3½ nok HkaMkj iath ds laoj.k 'ks"k dks vxys o"kZ izkjEHk.k ds :i esa ys 4 tkus tkus dkj.k :0 1]07]688¾43 dk nqfoZfu;ksx %& bl vLirky ds nok HkaMkj iath o"kZ 02¾03 ls 04¾05 rd ds nokvksa ds forj.k vkfn dh tkWp dze esa ik;k x;k fd lkekU; nok HkaMkj iath o’kZ 01¾02 dk vUr% 'ks"k dh nok tks o’kZ 02¾03 ds nok HkaMkj iath esa izk0”ks’k esa vkuk pkfg, Fkk] tks ugha yk;k x;k Fkk] mlh rjg fnukad ¾11¾02 ls izkjaHk dh xbZ nok HkaMkj iath esa “ks’k nok dks 03¾04 ds nok HkaMkj iath esa ugh yk;k x;kA blh izdkj ih0ih0 nok HkaMkj iath ds 31¾3¾03 ds lEoj.k “ks’k dks Hkh 03¾04 ds nok HkaMkj iath esa ugha ykk x;k Fkk ftldh fooj.kh ,oa ewY; ifjf”k’V ^^o** ij fn;k x;k gSA iz”kklh foHkkx vko”;d dkjZokbZ dj bldh lwpuk foRr ¼vads{k.k½ foHkkx dks Hkh nh tk;A ¼4½ nok dk izHkkj de ;k u nsdj nok dk ewY; 41628¾00 dk nqfoZfu;ksx%& eq[; nok HkaMkj iath ds tkWp dze esa ik;k x;k fd Jh jktsUnz pkS/kjh HkaMkj iky fnukad 20¾12¾02 dks Jh ykyckcw lksuh] fyfid dks HkaMkj dk izHkkj lkSaik Fkk fdUrq izHkkj izfrosnu ,oa mDr frfFk dks nokvksa ds rqyukRed tkWp esa ik;k x;k fd Jh pkS/kjh }kjk izHkkj esa cgqr lh nokvksa dh ek=k de nh xbZ ;k ugha nh xbZ Fkh ftldk fooj.kh ifjf'k’V ^^N** ij nh xbZ gSA iz”kklh foHkkx bl ij vko”;d dkjZokbZ dj bldh lwpuk foRr ¼vads{k.k½ foHkkx dks Hkh nh tk;A ¼6½ nok dh izkfIr de fn[kkdj 6843¾69 :0 nqfcZfu;ksx vLirky ds eq[; nok Hk.Mkj iath o"kZ 2002&03 ls 2004&05 esa fuxZr fn[kk;s x;s nokvksa ds tkWp dze esa ik;k x;k fd eq[; nok Hk.Mkj iath ls fuxZr fn[kk;s nokvksa dh ek=k] ftls fuxZr fd;k x;k gS] muds nok Hk.Mkj iath esa de ek=k fn[kkbZ xbZ gSA vFkok ugha fn[kkbZ xbZ gS ftlds dkj.k ifjf”k’V ^^>** ij vafdr ewY; dk nok HkaMkj iath esa izfo’V ugha fd;k x;k FkkA vr% ifjf”k’V ^^>** ij fn[kkbZ xbZ nokvksa dk dqy ewY; jkf'k 6843¾69 :i;s ds nqfoZfu;ksx ij iz'kklh foHkkx vko”;d dkjZokbZ dj bldh lwpuk foRr ¼vads{k.k½ foHkkx dks nh tk;A** There is however one snag in the submission of the learned counsel for the State, inasmuch as, the order of punishment is only with regard to the recovery of the cost of expired medicine. The order of punishment is not with regard to the other items for which the auditors had subsequently found certain discrepancy in the stores 5 either relating to the period of the petitioner or thereafter. Learned counsel for the petitioner, therefore, seems to be correct that the quantification of the amount in the impugned order to the tune of Rs. 1,56,160/- is beyond the scope of the order of punishment dated 18.8.2003. Nonetheless, as the said order dated 17.8.2007 was passed after issuance of a show-cause notice to the petitioner and filing of the show-cause reply by him, copy of which has not been enclosed by the petitioner in this writ application, it would be wholly unsafe for this Court to reach to a definite conclusion as with regard to the alleged excess recovery being made from the petitioner. Considering all these aspects, this Court would give liberty to the petitioner to approach the Regional Deputy Director of Health Services, Patna Division, Patna who may after calling for relevant information and records from the office of the Superintendent of Patna City Hospital would pass his final order as to whether the recovery of a sum of Rs. 1,56,160.12 paise is in keeping with the order of punishment 6 passed by him on 18.8.2003. If he finds that certain recovery was not permissible in terms of the order of punishment passed by him on 18.8.2003, he would revise such order and reduce the amount but, in the event he would find that the petitioner was liable to pay such amount in terms of the order of punishment, he would reaffirm it by giving his own reasons. Such an exercise, however, must be completed by the Regional Deputy Director of Health, Patna Division within a period of six months from the date of receipt/production of a copy of this order. It would be also open for the petitioner to also file his documentary evidence in support of his claim of the alleged excess recovery. It is, however, made clear that neither the petitioner will be allowed to question the order of punishment already passed against him in the year 2003 nor the authorities will in any way vary with the order of punishment as contained in Annexure- 5 to the writ application. The whole exercise in fact will be kept confined to examination of the quantification of amount of recovery from the petitioner and its ambit in terms of 7 the order of punishment already passed against him in on 18.8.2003. In the event the Regional Deputy Director of Health, Patna would find that certain amount of recovery is beyond the purview of the order of punishment dated 18.8.2003 but is recoverable from the petitioners in view of the audit objection, he would issue fresh show cause notice to the petitioner for necessary of such amount from him and would pass his final reasoned order in this regard after considering the reply of the petitioner. If thereafter any amount is found recoverable from the petitioner the same could be recovered from his payable salary and/or retirement benefit in easy installments. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)