IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No. 937 of 2009 DR.SUBARN SHEKHAR JHA, S/o. late Sridhar Jha, r/o. Mohalla- Rajkumarganj, P.S. Darbhanga Sadar, District- Darbhanga. ------- Appellant. Versus 1. THE STATE OF BIHAR, 2. Addl. Secretary, Department of Health and Family Welfare, Govt. of Bihar, Patna. 3. Joint Secretary, Department of Health and Family Welfare, Govt. of Bihar, Patna. --------- Respondents. ----------- 04. 16.02.2010 Heard learned counsel for the appellant and learned counsel for the State. Petitioner was proceeded in a departmental enquiry under rule-43(b) of the Bihar Pension Rules for six charges extracted in the order of the writ Court under appeal. After enquiry report was submitted, a show cause notice was given to the petitioner and thereafter he was inflicted with a punishment by withholding 5 per cent of his pension permanently. Challenge to that order of punishment has failed and the writ petition preferred by the appellant has been dismissed by the order under appeal by recording that Charge Nos. 2 & 6 were found established in course of 2 enquiry as per the enquiry report and on considering those charges the writ Court found that the respondents were justified in treating those charges to be grave misconduct and awarding punishment under the Bihar Pension Rules. Before us learned counsel for the appellant has submitted that the enquiry report annexed with the writ petition would show that even Charge Nos. 2 & 6 have not been established. In order to appreciate this submission we have gone through the enquiry report contained in Annexure-4 to the writ petition. The enquiry report does indict the appellant/writ petitioner in respect of those two charges though in respect of Charge No. 2 the words used are that he was indirectly responsible for allowing the employee concerned to join service. The writ Court has dealt with the matter in detail and has concluded that as head of the office, holding the post of Civil Surgeon-cum-Chief Medical Officer of the concerned district the appellant had to look into all 3 the relevant matters and he cannot be permitted to take shelter of something missing in the notes of his sub-ordinate ministerial officials. Charge No. 6 relates to purchase of drugs and on careful reading of the enquiry report relating to Charge No. 6 as well as the second show-cause submitted by the appellant contained in Annexure-5 we come to the conclusion that the decision of the committee was to purchase the drugs from Karnataka Drug and Pharmaceutical Ltd as it was recognized by the government but purchase was made from some other firms, which were also recognized but even quotation was not obtained from Karnataka Drugs and Pharmaceutical Ltd and decision of the concerned purchase committee was disregarded. In respect of Charge No. 6 it has been pointed out that the learned writ Court has made an observation at page- 10 that the inquiry officer has given a finding that purchase was made from M/S. Karnataka Drugs and Pharmaceutical Ltd which was a blacklisted firm. This is clearly an error of 4 fact committed by the learned writ Court and the reason is not far to seek. The counter affidavit of respondents wrongly made such an averment in paragraph-5 of the counter affidavit. But fortunately such error was only in respect of a fact borne out by the inquiry report a document available before the writ Court and before this Court. That document read together with the show- cause of the appellant contained in Annexure-5 makes the matter clear and hence the error by the writ Court in noting the correct facts flowing from the inquiry report does not have any impact upon the merits and outcome of this case. In fact the error in the counter affidavit is also understandable inasmuch as something to this effect was considered in a preliminary enquiry held by the authorities wherein some officer had taken such a defence. That preliminary inquiry report is available in the writ petition as Annexure-3. It has been submitted that for awarding punishment under the Bihar Pension Rules there 5 must be a finding in a departmental or judicial proceeding that the procedee has been guilty of grave misconduct. In support of this proposition reliance has been placed upon a judgment by a learned Single Judge of this Court in the case of Rajendra Singh V. Bihar State Electricity Board, 2003(4) P.L.J.R. 547. There is no quarrel with the aforesaid submission. But as to what will constitute grave misconduct is not defined under the pension rules, however there is indication in Rule-43 (b) of the rules that the proceeding under the rule shall be in accordance with the procedure applicable to a proceedings in which an order of dismissal from service may be made. That indicates the procedure of the proceeding, it has to be the same which is prescribed for a proceeding initiated for awarding a major punishment. In the present case, the said procedure had been followed and from the discussions made by the writ Court it appears that while Charge No. 2 related to allowing an 6 employee to join after more than five years of staying away from duty without initiating any proceeding and by ignoring that the appointment of the concerned employee was in fact an appointment by one Dr. Malik, who had become notorious and such appointments had been cancelled by the health department of the State Government. With respect to Charge No. 6 it was noticed by the writ Court that the matter related to purchase of medicines having financial implications and the decision of the committee was ignored. In such circumstances it is difficult to hold that the misconduct found to have been proved will not amount to grave misconduct. On this score it is not possible to interfere with the findings and order of the writ Court. Lastly it was submitted that the order of punishment does not show due application of mind to the show-cause submitted by the appellant pursuant to second show cause notice. Since, the punishment has been imposed on the basis of 7 findings in the inquiry report and those facts were kept in mind and notice had been given, there is no material in this case to hold that the authority concerned has passed the impugned order of punishment without application of mind. In the aforesaid facts and circumstances, we are unable to interfere with the order of the writ Court. Hence, the appeal is dismissed. Mkr. (Shiva Kirti Singh, J.) ( C.M. Prasad, J.)