IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.15531 OF 2004 DR.SURESH PRASAD, SON OF LATE NARSINGH PRASAD, RESIDENT OF MOHALLA GOPESHWAR NAGAR, NEAR INCOME TAX OFFICE, CHAPRA, POLICE STATION TOWN, DISTRICT SARAN AT CHAPRA ……PETITIONER 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 ******* 3 21/12/2010 The petitioner has challenged the order of punishment as contained in Annexure-9 dated 06.09.2004 by which 10 per cent of the pension of the petitioner has been withheld. Apart from which, the appellate authority has also held that the petitioner would not be entitled to payment of his salary during the period of his suspension. The said proceeding has been conducted under Section 43 (b) of the Bihar Pension Rules. The petitioner was posted as a Civil Surgeon at Munger at the time when the said misconduct or negligence etc. has been attributed to him. The charges were served on the petitioner on 05.03.2003 which relate to the year 2002. The petitioner had joined at Purnea in 2 January, 2001. A show cause was issued to the petitioner and after considering his reply, an enquiry was held. The enquiry report is contained in Annexure-7, which would disclose that the Enquiry Officer has considered each of the charges against the petitioner and come to a finding that the petitioner would be held responsible for not inspecting the store of the medical centre as well as being responsible for not disturbing the medicines specially with respect to the medicines of Kalazar. Counsel for the petitioner submits that the enquiry report would disclose that the petitioner has not been found fully responsible for the said charges. Paragraph 6 of the enquiry report deals with the conclusions of the Enquiry Officer. The Enquiry Officer has found that the petitioner as well as the Civil Surgeon posted prior to the petitioner on the said post, namely, Dr. Shanti Kumar Banerjee and Dr. Md. Lukman Ali had also not distributed the medicines and inspected the store of the hospital in question and, therefore, held that the petitioner alone is not responsible for the fact that the medicines worth lacs had to be destroyed because they had expired, due to non-inspection of the medicines available at the store and due to non-distribution of the medicines to the needy. The second allegation which is specific against 3 the petitioner is that during his tenure, he did not inspect store in question. The petitioner has been found guilty of this charge. The next allegation is that the medicines were not distributed in the health centre. The Enquiry Officer has found that the Deputy Superintendent of the Hospital is the head and Incharge of the Centre in question, and therefore, the petitioner alone could not be held responsible for non-distribution of the medicines. With respect to the next allegation which is of negligence, it has been held that the major portion of the medicines were purchased by the Civil Surgeons, who were posted prior to the posting of the petitioner and therefore, the petitioner cannot be held to be guilty of negligence. In conclusion, the Enquiry Officer has recommended for deduction of 5 per cent of the pension by way of punishment. Learned Counsel for the petitioner relies on the decision of this Court in the case of Rajendra Singh vs. The Bihar State Electricity Board & others [2003 (4) PLJR 547] to substantiate his submission that when there are several persons responsible for the act of misconduct/negligence, the incumbent who faced the disciplinary proceedings cannot alone be held responsible and be punished for the said misconduct. On perusal of 4 the aforesaid judgment, I find that the decision of this case is mainly on the question whether the pension could have been withheld under Section 139 (a) (b) of the Bihar Pension Rules. Further, at paragraph 18, this Court has considered the fact that several persons had faced proceedings under Section 43 (b) of the Bihar Pension Rules for alleged misconduct. Some of those have been given a lesser punishment whereas others have been exonerated. In this context, the Court has held that in view of the fact that for the same act, two persons were let off, the petitioner could not have been held to be guilty of ‘grave misconduct’. The principles laid down in the case aforesaid does not cover the case of the petitioner. The petitioner cannot be exonerated on the ground that others were also responsible for some part of the loss caused to the State Government due to their acts of omission. The fact remains that as far as the petitioner is concerned, the Enquiry Officer has found that he was partly responsible for the misconduct, and also directly and solely responsible for not performing his duties and inspecting the medical store or distributing the medicines during his tenure as Civil Surgeon –cum- Chief Medical Officer. I find no reason to differ with the findings of the Enquiry Officer. The next point raised on behalf of the petitioner 5 is that no show cause notice was issued to the petitioner before passing an order of withholding his salary for the period for which he was put under suspension. I find merit in the contention raised on behalf of the petitioner. It has now been well settled by the decision rendered in the case of Shri Mahabir Prasad vs. The State of Bihar & Others (1988 PLJR 82) that it is necessary to issue a show cause before inflicting the punishment of withholding of the salary during the suspension period. Moreover, the Full Bench Judgment in the case of Shambhu Saran vs. The State of Bihar & Others [2000 (1) PLJR 665] is quite clear on this aspect of the matter, that no other punishment could be inflicted upon a retired person, who is facing proceeding under Section 43 (b) of the Bihar Pension Rules except the punishment as provided under Section 43 (b) of the Bihar Pension Rules. For the reasons aforesaid, I quash the order dated 06.04.2009 as far as the infliction of punishment of withholding the salary for the suspension period is concerned. Lastly, learned Counsel for the petitioner submits that before infliction of punishment, the petitioner was issued second show cause, to which he filed a reply as contained in Annexure-8 to the writ 6 application. Counsel for the petitioner submits that the impugned order as contained in Annexure-9 does not disclose any application of mind as the concerned authority appears to have not considered the second show cause reply or even referred to it while passing the impugned order. This Court has basically upheld the finding of the Enquiry Officer as would be apparent from perusal of the order of the Court. Therefore, it would be really an exercise in futility if the matter is remitted back for reconsideration as all the facts have been placed before this Court and argued in great details by the Counsel for the petitioner. In the result, part of the order contained in memo no. 1521 (9) dated 06.09.2004 as indicated above is quashed. As a result, the authority would have to pay the salary of the petitioner during the suspension period and recalculate the retiral benefits on the basis of the aforesaid facts. The authorities are required to complete the procedure within a period of four months from the date of receipt/production of a copy of this order. Anand ( Sheema Ali Khan, J. )