IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12584 of 2007 Dr. Bhubneshwar Singh, son of late Nanku Prasad Singh, resident of Village Henija, P.O. Rampur Dumara, P.S. Maranchi, Dist. Patna. ---------- Petitioner Versus 1. The State of Bihar through the Commissioner-cum-Secretary, Department of Health Medical Education and Family Welfare, Govt. of Bihar, Patna. 2. The Director-in-Chief, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 3. The Under Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 4. The Deputy Secretary, Department of Health Medical Education and Family Welfare, Govt. of Bihar, Patna. 5. The Accountant General, Govt. of Bihar, Patna. --------- Respondents ----------- For the Petitioner :- Mr. Rajendra Narayan, Adv. For the State :- Mr. Shatrughna Pandey, AC to SC 23 For the Respondent No.5 :- Mr. Sudhir Singh, Adv. PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (11.11.2011) Mihir Kumar Jha, J. Heard learned counsel for the parties. Questioning the correctness of the impugned order dated 3.9.2003, whereby and whereunder, the petitioner, a retired Civil Surgeon, has been subjected to both recovery of Rs. 1,07,365/- along with interest at the rate of 10% per annum as also withholding of 20% of pension, Mr. Rajendra Narayan, learned counsel for the petitioner has submitted that the impugned order cannot be sustained in view of the fact that the petitioner had already retired on 30.6.1999, whereafter, only the memo of charge was issued on 9.7.1999 for initiating a departmental proceeding 2 under Rule 55 of the Civil Service (Classification Control and Appeal) Rules, 1930 treating the petitioner to be still continuing in service. He has further submitted that the petitioner was also given no opportunity and in fact no enquiry in terms of Rule 43(b) of Bihar Pension Rules was ever held and, therefore, the impugned order cannot be even otherwise sustained either on fact or in law. Counsel for the State, on the other hand, would submit that the memo of charge was already signed by the competent authority on 28.6.1999 but could be issued by the dispatch Clerk on 9.7.1999 and as such, a proceeding under Rule 55 was very much maintainable in view of the judgment of Full Bench in the case of Shambhu Saran Vs. State of Bihar & Ors. Reported in 2000(1)PLJR 665. He has further submitted that it was for the petitioner to collect the memo of charge specially, when he had already come to know of it in the pending writ application filed by him for payment of his retirement benefit being CWJC No. 79 of 2002. He has also submitted that the writ application suffers from the vice of delay and laches, inasmuch as, the impugned order of punishment was passed on 3.9.2003 but the present writ application has been filed after four years on 3 24.9.2007 and that too after partly accepting one of the two punishments inflicted on the petitioner. Learned counsel for the State has also highlighted that the charges against the petitioner were quite serious, inasmuch as, he in capacity of Civil Surgeon had made unauthorized charges of medicine as also was negligent in performance of his official duty. In this context, he has referred to different reports of his supervision officer including the Cabinet Minister as also the Collector of the district which went to show that various programmes of the Health Department could not be completed on account of repeated absence and continued absence of the petitioner. In the considered opinion of this Court, there would be no difficulty in accepting the submission of the Mr. Narayan that the memo of charge even though it may have been singed by the concerned departmental authority on 28.6.1999 but, if the same was not issued to the petitioner prior to his retirement on 30.6.1999, the proceeding under Rule 55 of Civil Services (Classification Control and Appeal) Rules, 1930 would not be maintainable, inasmuch as, the petitioner had already retired from service on 30.6.1999 whereas the memo of charge was admittedly issued by the 4 department only on 9.7.1999. Way back in the case of Bachhittar Singh Vs. State of Punjab & Anr. reported in AIR 1963 SC 395 it has been laid down that a formal decision of the Government unless communicated cannot take a form of an effective order. Here in this case though a formal decision may have been taken for initiating a departmental proceeding against the petitioner under Rule 55 of the Civil Services (Classification Control and Appeal) Rules and even memo of charge was also signed by the competent authority on 28.6.1999, but the fact remains that the concerned officers/clerks were still lethargic in not issuing the same on or before 30.6.1999 which would be sufficient to hold that a departmental proceeding in terms of Rule 55 of the Rule in view of the memo of charge ultimately issued to the petitioner on 9.7.1999, was impermissible. In this regard, Rule 43(b) of the Bihar Pension Rules itself contains a clear safeguard wherein it has been provided that a departmental proceeding against a retired Government servant can be initiated subject to certain conditions, one of them being that the event in question for which such proceeding is initiated will not be beyond the period of four years. Admittedly, on 9.7.1999, the petitioner was a retired person and, 5 therefore, for him the aforesaid safeguard under Rule 43(b) was applicable and, as such, when the memo of charge contained an allegation relating to the period of 1997-98 i.e. well within a period of four years of issuance of memo of charge, a proceeding under Rule 43(b) was permissible as in the case of Sudheshwar Nath Vs. The State of Bihar & Ors. reported in 2003(3)PLJR 49 wherein it was held:- “1. Rule 43(b) of the Bihar Pension Rules provides for withholdment or withdrawal of pension or recovery from the pension of a Government servant the amount of pecuniary loss suffered by the Government if the pensioner is found to be guilty of gross misconduct or to have caused pecuniary loss to the Government by misconduct or negligence during the service period, in a departmental or judicial proceeding. Such departmental or judicial proceeding if not pending while the pensioner was on duty before retirement, may be instituted but subject to certain limitations. As regards the departmental proceeding with which we are concerned in this case, the rule lays down that it can be initiated with the sanction of the State Government with respect to an event which had taken place not more than four years before the institution of such proceeding. The explanation appended to the rule lays down that the departmental proceeding will be deemed to be instituted when the charges framed against the pensioner are issued to him. The point for 6 consideration in this writ petition is whether the memo of charges must also be served within the period of four years. 12. In view of the above discussions I have no hesitation in holding that expiry of period of four years, starting from the date of event, has to be reckoned with reference to the date of „issue‟ of the memo of charges and it is not necessary that the memo should also be served within that period itself.” Thus, there would be no difficulty in holding that the petitioner could have been punished on the basis of such memo of charge treating it to have been issued in terms of Rule 43(b) of the Bihar Pension Rules, inasmuch as, it is well settled that if there be source of power and authority to take an action, the same would not stand vitiated due to incorrect mentioning of source of such power. In this regard, the petitioner in paragraph no.4 of the writ application has submitted that he was posted as Additional Chief Medical Officer, Banka in 1997 and had continued till 30.6.1999 as Civil Surgeon, Banka and, therefore, when the charges related to that period which was within four years from 9.7.1999, such memo of charge and the proceedings can still be treated to be under Rule 43(b) of Bihar Pension Rules, which reads as follows:- “43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of 7 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 reemployment after retirement: Provided that- (a) such departmental proceedings, if not instituted while the Government servant was on duly 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 that 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.” 8 From the reading of the provisions of Rule 43(b) of the Bihar Pension Rules, it becomes clear that if a proceeding has not been initiated prior to retirement of the Government employee, the same can still be initiated on specified terms and conditions. This aspect of the matter has been considered by a Division Bench of this Court in the case of Ram Nandan Prasad Sinha Vs. State of Bihar reported in 2001(2)PLJR 826, wherein it has been held as follows:- “8. Rule 43(b) empowers the State Government to withhold or withdraw pension – whether permanently or for specified period- or recover from the pension whole or part of any pecuniary loss caused to it if the petitioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or to have caused pecuniary loss to the government by misconduct or negligence during his service including service rendered on re-employment after retirement. The main clause (b) it would appear, is in two parts. The rule refers to withholding or withdrawing of pension and recovery of pecuniary loss caused to the government. Either of the two can be done only if the government servant concerned is found, in a departmental or judicial proceeding, to be guilty of grave misconduct or to have caused pecuniary loss to the government by misconduct or negligence. There may be three situations. The departmental or judicial proceeding referred to in the Rule may have been held and concluded during tenure of service of the government servant i.e. before his superannuating. Second, where such 9 departmental or judicial proceeding was initiated during the employment or re- employment of the government servant but no concluded until his superannuation. Third, there may be cases in which the proceeding – whether departmental or judicial- could not be initiated before the superannuation of the government servant. So far as the first category of cases are concerned, where adverse finding as to grave misconduct or causing pecuniary loss to the government has been recorded in either departmental or judicial proceeding, that may be a ground to withhold/withdraw pension or recover the amount of pecuniary loss from the pension of the government servant after his superannuation. So far as the second category of cases are concerned, there is some divergence of opinion as to whether the proceeding survives the effect of superannuation, the preponderance of view is that a pending departmental proceeding can be continued under Rule 43(b) for the purpose of withholding etc. the pension of the concerned government servant. Indeed, a Full Bench of this Court has said so in the case of Shambhu Sharan vs. State of Bihar, 2000(1) PLJR 665. The proviso take care of the third category of cases where proceedings were not instituted before the superannuation of the government servant or during his reemployment. Proviso(a) refers to departmental proceeding while proviso (b) refers to judicial proceeding. In this case we are concerned with proviso(a).” In this regard, the respondents have also asserted that after issuance of memo of charge dated 9.7.1999, a modified memo of charge in terms of Rule 43(b) of the Bihar Pension Rule dated 10 16.11.2002 was also served on the petitioner and a departmental proceeding was conducted. Thereafter, in the light of the findings recorded by the enquiry officer, the petitioner was given second show-cause notice and after eliciting his comments/reaction in the findings recorded by the enquiry officer, the impugned order was passed. These statements made in the counter affidavit have also not been controverted by the petitioner and in such a situation, it cannot be held that no departmental enquiry after affording opportunity of personal hearing to the petitioner was held. True it is that the petitioner’s specific averments in the writ application as with regard to not holding such enquiry in terms of Rule 43(b) in paragraph no.7 has also not been specifically controverted but then the respondents have also explained reasons for not answering the aforesaid averments of the petitioner. In paragraph no.12 of the counter affidavit, it has been mentioned that on 11.5.2007, some unknown person has stolen a number of files from the Almirah of Health Department in which the concerned file of the petitioner was also stolen and a First Information Report in this regard was also lodged in the Secretariat Police Station vide departmental letter no. 419(9) dated 11.5.2007. Thus in absence 11 of the connected records, the respondents could not have specifically answered the allegation of there being no enquiry. It is equally interesting to note here that the writ application was itself filed on 24.9.2007 only after the petitioner became aware of the fact that such files were already stolen. In this regard, it is significant to note here that the petitioner on 22.5.2007 had filed an application under Right to Information Act for supply of the amended resolution, namely, memo of charge and the enquiry report and when it was intimated by the Health Department to the petitioner vide letter no. 625 dated 21.6.2007 through its Public Information Officer and some information was also made available to the petitioner vide letter no. 1059 dated 20.7.2007 as with regard to the theft of 35 files including the file of the petitioner, the present writ application was filed on 24.9.2007 complaining that no enquiry was conducted before passing of the impugned order of punishment. A question therefore would arise as to why the petitioner was waiting for a period over four years when he had already come to know of the order of punishment in course of pendency of his earlier writ application CWJC No. 79 of 2002 which was disposed of by an order dated 31.8.2004 with a 12 liberty to him challenge the order of his punishment. The Government or the officers of the Government are infact not supposed to maintain all the records for an indefinite period and in fact life of such documents/files is also fixed under Financial Rules as well as in Secretariat Instruction. The order of punishment against the petitioner was infact passed on 3.9.2003 and if within a period of three years, the petitioner had not filed the writ application, such documents were not even legally required to be preserved. It is here that the petitioner’s own conduct would itself disentitle him to press the point of there being no departmental proceeding and the impugned order of punishment thus being vitiated on account of infringement of Rule 43(b) of the Bihar Pension Rule. It has to be infact also kept in mind that after the petitioner was made aware of the impugned order of punishment dated 3.9.2003 and was also given leave by this Court on 31.8.2004 to file a fresh writ application, the petitioner did not file the writ application but had only filed a representation on 11.11.2004 to the Secretary of the Department wherein he had sought only relief that too by way of compassion for restoring his pension. In this regard it would be useful to 13 quote the whole representation of the petitioner dated 11.11.2004, which reads as follows:- ^^izs’kd] Mk0 Hkqous”oj flag] lsok fuo`r flfoy ltZu] ckWdkA lsok esa] vk;qDr] LokLF; ,oa ifjokj dY;k.k] fcgkj] iVukA fo’k;%& isa”ku ,oa xzsP;wVh esa dVkSrh ds laca/k esaA egk”k;k] mi;qZDr fo’k;d izlax esa vuqjks/k djuk gS fd eSa twu 1999 esa lsokfuo`r gqvk gwWA foHkkx us eq>s isa”ku] xzsP;wVh Hkqxrku dj pqdk gSA ijUrq isa”ku ls 20% dh dVkSrh vkSj xszP;wVh ls ,d yk[k lkr gtkj dh dVkSrh dh xbZ gSA bl lanHkZ esa eSa fofur Hkko ls vkxzg djuk pkgrk gwW vkilsA vki geyksxksa ds xkjth;u gSA xkjth;u vius v/khuLFk lnL;ksa dk ;ksx{kse ogu djus dk nkf;Ro vius mij ysrk gSA isa”ku flQZ eq>s gh ugha cfYd esjs ifjokj dk Hkj.k iks”ku ds fy;s nh tkrh gSA isa”ku ls 20% dh dVkSrh dj ysus ls eq>s dkQh vkfFkZd {kfr gqbZ gS ,oa ekufld larki ls xzflr jg jgk gWA ,d naM eSaus lg’kZ Lohdkj dj fy;k Fkk ijUrq nwljk naM vlguh; gS vr% Jheku ls vkxzg gS fd eq>s nwljk naM ls eqDr djds iwjk isa”ku Hkqxrku dh Lohd`fr iznku djus dh d`ik djuk pkgsaxsA vki ij iwjk Hkjkslk j[krs gq, eSa U;k;ky; ugha tk jgk gWA U;k;ky; tkuk esjh etcwjh gksxhA vr% Jheku ls fuosnu gS fd esjh izkFkZuk ij iqu% fopkj djds eq>s jkgr i= 15 fnu ds vUnj Hkstus dh d`ik djuk pkgsaxsA fo'oklHkktu g0@% 11-11-04 Hkokuh fDyfud Xksikyokn jksM Iks0 ojoh?kk ftyk& “ks[kiqjkA** (underlining for emphasis) From the perusal of content of aforesaid 14 representation of the petitioner and specially its underlined portion it would be amply clear that the petitioner had never raised the question of any infirmity in the impugned order of punishment on any ground whatsoever. In both the representations, the petitioner in fact had conveyed that he had gladly accepted the punishment of recovery of Rs. 1,07,365/- and that he would be satisfied if his withheld 20% of pension is only restored to him. The aforesaid conduct of the petitioner, therefore, would amount to both waiver of his right to challenge the order of punishment, inasmuch as, he had acquiesced to the same. The petitioner, therefore, could not have become wiser after he had come to know that the file, in question of his departmental proceeding had been stolen and as such, the delay in filing of the writ application after a period of four years from the date of order of punishment would by itself be good ground to dismiss the writ application. This Court, however would not like to dismiss the writ application on the ground of delay, inasmuch as, the petitioner’s writ application filed on 24.9.2007, for the first time has been taken up today after a lapse of four years. The complain of the petitioner also is not 15 on the merit of the allegation and when the petitioner himself has partly accepted the order of punishment to the extent of recovery of Rs. 1,07,365/, no useful purpose would be served if the matter is remitted back to the disciplinary authority for holding a fresh enquiry against the petitioner who has retired from service on 30.6.1999. As a matter of fact, when the petitioner himself has not enclosed his written statement of defence, admittedly filed by him has claimed in paragraph no.6 of the writ application, this Court would find it difficult to ignore the seriousness of the charge involving financial indiscipline and irregularities in the purchase of medicine by him. In that view of the matter, it also cannot be held that the order of recovery of Rs. 1,07,365/-, being the amount of loss caused to the Government, is either excessive or disproportionate to the charges framed and proved against him. After this portion of the order has been dictated, Mr. Rajendra Narayan, learned counsel for the petitioner, has submitted that the petitioner will have no difficulty in giving up his claim for refund of the amount of Rs. 1,07,365/- and the interest thereon, if his withheld 20% pension is restored to him from the 16 date of his retirement. The counsel for the State has also very fairly shown his willingness to accept the aforesaid offer of Mr. Rajendra Narayan, learned counsel for the petitioner. In the considered opinion of this Court, equity between the parties therefore would be balanced if the petitioner’s 20% pension withheld under the impugned order is restored to him, inasmuch as, he has himself voluntarily given up his claim for restoration of Rs. 1,07,365/- with interest thereon already recovered from him even before filing of this writ petition as is apparent from his own first representation dated 11.11.2004 (Annexure-4). As noted above, the main file of the departmental proceeding has been stolen away and the respondents also will now find it difficult to collect all those materials against the petitioner for holding fresh departmental proceeding and providing charges against him. This Court also cannot ignore that the petitioner also has suffered both monthly and/or financially during last twelve years on account of withholding/stoppage of his 20% monthly pension. In such a situation, this Court will have no difficulty in accepting the agreed submissions of both the parties that the order of punishment 17 should be modified to the extent that the petitioner will not claim refund of Rs. 1,07,365/- with interest thereon and the respondent shall restore the withheld amount of 20% of his pension. Thus, in the light of the aforesaid consent of the parties, this Court would dispose of the writ application with a direction to the petitioner to file an application giving an undertaking that on restoration of his 20% pension from the date of the impugned order, he would not claim refund of Rs. 1,07,365/- and the amount of interest paid thereon. If such an undertaking is given by the petitioner which would be actually in keeping with his earlier first representation dated 11.11.2004, the respondents would pass an order for restoring the withheld amount of 20% of pension within one month of filing of such application by the petitioner. The respondents shall thereafter also make payment of the deducted amount of 20% of his pension within next three months. In the light of the aforementioned observations and direction, this application is disposed of. Patna High Court Dated 11th November 2011 A.F.R./Rsh (Mihir Kumar Jha, J.)