IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6165 of 2005 Dr. Sheo Shankar Pd. Choudhary, S/o Late Ramawatar Choudhary, Resident of Mohalla Bishunpur, P.S. Begusarai, District Begusarai. -------- Petitioner Versus 1. The State of Bihar. 2. The Commissioner-cum-Secretary, Health Medicine, Education & Family Welfare, Bihar, Patna. 3. The Joint Secretary, Health Medicine, Education & Family Welfare, Bihar, Patna. 4. The Under Secretary, Health Medicine, Education & Family Welfare, Bihar, Patna. 5. The Assistant Secretary, Health Medicine, Education & Family Welfare, Bihar, Patna. 6. The Chief Surgeon-cum-Chief Medical Officer, Siwan. 7. The Accountant General, Bihar, Patna. --------- Respondents ----------- 7 30.09.2010 No one appears on behalf of the petitioner. Counsels for the State and Accountant General are present. In this writ application, which was originally filed on 12.5.2005, the prayer of the petitioner was as follows:- “1. That this is an application for issuance of a writ in the nature of certiorari to quash the enquiry report dated 25.3.2000 submitted to the respondent no.4 and has been served to the petitioner with the second show-cause notice vide letter no. 606(9) dated 15.5.04 issued under the signature of respondent no.5 as contained in Annexure 8 Series and further the 2 quash the notification issued vide no. 303(9) dated 10.3.05 issued under the signature of the respondent no.3 as contained in Annexure 10 whereby and where under 50% of the pension of the petitioner has been deducted and full salary during the period of the suspension period has been denied to the petitioner on the basis of alleged absence and for making obstruction in the official discharge of the duty and these allegations have been said to be proved against the petitioner and further for issuance of consequential writ in the nature of mandamus directing and commanding the respondents to make full payment of salary during the period of the suspension.” During pendency of the writ application, I.A. No. 4746 of 2005 was filed, wherein, the additional prayer was also sought to be added in the relief portion of the original writ application, which reads as follows:- “For issuance of a writ in the nature of certiorari to quash the order issued from the office of the Respondent no.7 vide no. Pen 3674 dated 12.8.05 whereby and whereunder the pension of the petitioner has been reduced to Rs. 2456/- P.M. in consequence to the notification issued vide no. 303(9) dated 10.3.05 as 3 contained in Annexure-10 to the main writ petition.” From the pleadings on record, it is clear that the petitioner was subjected to both the departmental proceeding and criminal proceeding and the criminal proceeding against the petitioner vide supplementary affidavit dated 17.7.2006 in Sessions Trial No. 122 of 2001 (State Vs. S.D. Pd. Choudhary) was shown to be still pending before the Fast Track Court- V, Begusarai. Further, the respondents have explained that the prayer of the petitioner in this writ application is not maintainable before this Court, inasmuch as, in the counter affidavit filed on 24th July 2006, an objection has been raised with regard to the maintainability of the writ application on the ground that the impugned order was only the second show-cause notice dated 15.5.2004 proposing to deduct 50% of the pension of the petitioner in the light of the findings arrived at by the enquiry officer in the enquiry report. It has to be however noted that even before the writ application was filed on 12.5.2005, an order of punishment 4 dated 10.3.2005 had already been passed against the petitioner on the basis of the said enquiry report and the second show-cause notice withholding of 50% of pension of the petitioner and as such the preliminary objection of the University has lost its significance. This Court, however, has also carefully perused the findings recorded in the enquiry report dated 25.3.2000, wherein, the charge on the petitioner of being unauthorizedly absent from duty, has been found to be proved. In that context, the defence of the petitioner had also been taken into account by also looking into the original document in shape of Outdoor Patient Register from which it was discovered that between November and December, 1998 the petitioner had performed his duty only on 1.11.1998, 2.12.1998 and 7.12.1998. Such clear findings recorded in the departmental proceeding would leave nothing for speculation that the charge against the petitioner of remaining unauthorizedly absent from duty was proved. 5 Similarly, the findings of the enquiry officer as with regard to the petitioner indulging in private practice during the period of his unauthorized absence was again looked into in the light of the defence and documents produced by the petitioner and the enquiry officer had found that the petitioner was indulging in private practice and to that extent, reference to the materials on record including the report of the Sub-divisional Officer, Begusarai as also certain clinching evidence with regard to the petitioner being involved in private practice at Begusarai in the house where he was living despite his posting at a different place were taken into consideration for holding the petitioner guilty of indulging in private practice. The question of sufficiency of evidence in the departmental proceeding cannot be gone into by this Court in exercise of its power under Section 226 of the Constitution of India as was held way back by the Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Ors. reported in 1995(6)SCC 6 749 and, therefore, the allegation of an untoward incident taking place on account of the petitioner indulging in private practice due to which there was also a criminal case leading to aforesaid sessions trial, cannot be altogether ignored only because the petitioner for part of the same misconduct is also facing a separate criminal prosecution. The scope and prospect of the criminal proceeding and the departmental proceeding, being altogether different, this Court would also not find any merit in the plea that has been taken in the writ application as with regard to the prejudice to the petitioner. The standard of proof in a criminal case, being one of proving the charge beyond reasonable doubt and the requirement in a departmental proceeding of proving the charge on preponderance of probability, would by itself give a death blow to the overemphasized plea of two parallel proceedings. In view of the fact that this Court has not found any error in the decision making process leading to punishment against 7 the petitioner in the departmental proceeding, the impugned order of punishment against him is approved. The respondents, in their counter affidavit, have explained that the petitioner has already been paid remaining amount of his retirement benefit restricted to 50% of his pension, and therefore, now nothing more remains to be adjudicated even on that score. That being so, this application is devoid of any merit and the same is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)