IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.733 of 2006 Dr. Subarn Shekhar Jha son of Late Sridhar Jha, resident of mohalla Rajkumarganj, P.S. Darbhanga Sadar, district Darbhanga. -:Versus:- 1. The State of Bihar through the Secretary, Department of Health and Family Welfare, Government of Bihar, Patna. 2. Additional Secretary, Department of Health and Family Welfare, Government of Bihar, Patna. 3. Joint Secretary, Department of Health and Family Welfare, Government of Bihar, Patna. For the Petitioner : Mr. Banwari Sharma, Advocate with Mr. Shiv Kumar, Advocate. For the State : Government Pleader No.-1 P R E S E N T THE HON’BLE JUSTICE MIHIR KUMAR JHA *********** Mihir Kr. Jha, J. By this writ application, the petitioner, a retired civil surgeon, has assailed the order of punishment pursuant to the departmental proceedings withholding his 5% of pension permanently. Facts which are not in dispute is that the petitioner at the relevant point of time was holding the post of Civil Surgeon-cum- Chief Medical Officer, Motihari and was subjected to a departmental proceeding in respect of following six charges:- 1- Jherh e/kq dqekjh fyfid dk QthZ cgkyh LFkkukUrj.k ds ek/;e ls fd;k tkukA 2- Jh v:.k dqekj JhokLro lax.kd dk yEcs vodk”k ds fcuk dksbZ dkjZokbZ ds ;ksxnku fy;k tkuk rFkk Mk0 efYyd }kjk fd;s x;s fu;qfDr dks jn~n djus laca/kh vkns”k ds ckotwn 2 ;ksxnku fy;k tkukA 3- QthZ :i esa fu;qDr Jh d`’.k dqekj dk LFkkukUrj.k ,oa fu;qfDr dh lEiqf’V fcuk rF;ksa dh tkWp fd;s lhrke<+h Hkst nsukA 4- jlksb;k ds in ij fu;qDr Jh cztHkw’k.k izlkn dks vU; ojh; deZpkfj;ksa dh mis{kk dj fyfid ds in ij izksUufr nsuk ftlesa Lok0 foHkkxh; vkns”k ds izfrca/k ,oa jksLVj foUnq dk vuqikyu ugha fd;k tkukA 5- Jh gfj”kadj izlkn] thi pkyd ds mez fu/kkZj.k vkB o’kZ c<+kus dh xM+cM+h djukA 6- nok dz; esa vfu;ferrk ojrukA Here it is not in dispute that the petitioner was accorded reasonable opportunity of hearing in course of departmental proceeding. Thereafter, the enquiry officer on 22.11.2004 had submitted his enquiry report holding that charge nos. 1, 3, 4 & 5 were not proved whereas charge nos. 2 & 6 were proved. The petitioner, thereafter, was not only given a copy of the enquiry report but was also subjected to a second show-cause notice dated 15.2.2005 to explain the findings as with regard to the aforementioned charge nos. 2 & 6. The petitioner had also submitted his show- cause reply on 16.3.2005 whereafter the aforementioned order of punishment dated 30.6.2005 has been passed withholding his 5% of pension permanently. 3 Counsel for the petitioner initially had raised the issue of proceedings being barred in terms of proviso to Rule 43-B of the Bihar Pension Rules but then realizing that the charges were framed against him within four years of the misconduct had himself given up this point. As a matter of fact, from the records it would be clear that whereas the petitioner had retired on 31.12.2001 while holding the post of Chief Medical Officer cum Civil Surgeon, Patna, an enquiry with regard to the misconduct alleged in the aforementioned six charges were initiated by the Government on 5.10.2002 and after an enquiry report was received on 8.12.2003 suggesting the complicity of the petitioner, a departmental proceeding was also initiated against him vide memo of charge dated 25.5.2004. In view of the fact that the period of four years were not completed from the date of retirement and the last period of posting being as a Civil Surgeon, Motihari, this Court even otherwise is satisfied that the proceeding is not barred in terms of proviso to Rule 43-B of the Bihar Pension Rules. 4 The next and in fact the only other submission of the learned counsel for the petitioner was that the two charges which were found to have been proved by the enquiry officer namely the charge nos. 2 & 6 even if accepted in totality with the findings thereon of the enquiry officer, they could not be construed to be a ‘grave misconduct’ within the meaning of Rule 43 of the Bihar Pension Rules. Counsel for the petitioner in this context has referred to the judgment of this Court in the case of Rajendra Singh Vs. The Bihar State Electricity Board & Ors. reported in 2003(4) PLJR 547. Counsel for the State on the other hand referring to the scheme of Rule 43 of the Bihar Pension Rules and Bihar Government Service Conduct Rules has submitted that the reduction/withholding of pension in terms of Bihar Pension Rules can always be made if the pensioner is found to be guilty of grave misconduct or to have been caused pecuniary loss to the Government. He has submitted that both the charges proved against the petitioner had not only the clear ingredient of grave 5 misconduct but had led to pecuniary loss to the Government and as such, the plea of the petitioner of not being guilty of grave misconduct is fit to be rejected. This Court upon considering the materials on record as also appreciating the aforementioned submissions is in an agreement with the views of the learned counsel for the State. Charge no.2 against the petitioner is with regard to the acceptance of joining of one Sri Arun Kumar Srivastava who had remained absent from duty for a period of almost eight years. It has to be noted that the services of Sri Arun Kumar Srivastava were terminated by the Directorate of Health on 30.4.1993 after being held an illegal appointee of Dr. Mallik, a notorious officer of the Health Department who had made a large number of illegal appointments. The Civil Surgeon admittedly is the head of the department of health at district level and is the appointing and controlling authority of the post of Sanganak, held by Mr. Srivastava. In that view of the matter, once Mr. Srivastava was found to be absent from duty for a period of almost eight 6 years and there was no order of his reinstatement in service, his joining could not have accepted specially when Rule 76 of the Bihar Service Code permits absence at best even by way of extraordinary leave for a period only up to five years. In that view of the matter, it cannot be said that charge no.2 is a mere misconduct and not a grave misconduct. All the appointments made by Mr. Mallik were found to be exfacie- illegal, arbitrary, capricious and null and void up to the Supreme Court vide judgment in the case of Ashwani Kumar Vs. State of Bihar reported in 1997(1) PLJR (S.C.) 59 and therefore, the petitioner was required to be more cautious in accepting the joining of Mr. Srivastava. His explanation in course of enquiry that he had obtained opinion of his subordinate in-charge medical officer, Sugauli or of the local Public Prosecutor can be hardly of any avail. The further clarification given by the learned counsel for the petitioner that even when the Directorate of Health had not cancelled/recalled the order of termination of Mr. Srivastava dated 30.4.1993 7 he had remained working on his post cannot be used as a defence by the petitioner because he was the person who ensured restoration of service of Mr. Srivastava by accepting his joining even when he had no such power or authority to accept joining of a terminated employee who had absconded on 14.5.1993 i.e. within fourteen days of his order of termination and had reported on duty on 5.5.2001 after a gap of eight years of his unauthorized absence and that too without taking recourse under Rule 76, Bihar Service Code, contemplating a departmental proceeding against an employee remaining absent from duty for a period of five years. There being infact no order of the Directorate of Health to accept the joining of Mr. Srivastava, the petitioner, being the head of the district, if he had accepted the joining of Mr. Srivastava after eight years of his unauthorisedly absent from duty for the period 14.5.1993 to 9.5.2001, he (petitioner) is as much responsible as Mr. Mallik in continuing a rank illegal appointment. The Civil Surgeon of the district was 8 supposed to be aware of the nature of appointment of an employees working under him and his explanation that there was nothing before him to suggest that Mr. Srivastava was appointed by Mr. Mallik or that he was not aware of the decision of the Government terminating the service of Mr. Mallik, would only be a lame explanation. The petitioner also cannot take shelter for defending his action of acceptance of joining of Mr. Srivastava on the ground that the Head Clerk of his office being Mr. Sudama Ram was single handedly responsible for acceptance of joining of Sri Srivastava. It is also not correct to say that in course of earlier enquiry, only Sudama Ram was held to be guilty for such misconduct rather a clear finding was recorded that it was the duty of all the authorities to identify the illegal appointment of the period of Dr. Mallik in view of the order of the Health Department dated 30th April, 1993. In such a situation, if the petitioner being the head of the office had accepted and allowed joining of Sri Srivastava who had remained absent from duty from 14.5.1993 to 4.5.2001 9 without being any sanctioned leave, it cannot be said that as the head of the office of the district, the petitioner, in capacity of Civil Surgeon had not committed a grave misconduct by violating not only the specific order of the Directorate dated 30th April, 1993 but also the provisions of Rule 76 of the Bihar Service Code. In the opinion of this Court, charge no.2, therefore, cannot be labelled as a mere misconduct and has all the ingredients of a grave misconduct. Proving of Charge no.6, against the petitioner in fact, would leave nothing for him to contend that he had not committed a grave misconduct inasmuch as the aforementioned charge was with regard to financial irregularity in purchase of medicine. The enquiry officer has found the explanation of the petitioner to be wholly unacceptable by looking into the proceedings of Medicine Purchase Committee which in its meeting dated 24.3.2001 had resolved to purchase medicine only from specifically named firms approved by the State Government and too 10 after obtaining quotations from them. In this regard there is a clear findings recorded by the Enquiry Officer with regard to irregularity in the purchase of medicine committed by the petitioner in capacity of Civil Surgeon of the district that such purchase of medicine was made from one M/s Karnataka Drug and Pharmaceutical Limited which was a blacklisted firm and the petitioner had placed orders for purchase of such medicines to the said firm despite an information to this effect given by the Collector of Motihari district. The Government instruction in this regard as also approved by the Medicine Purchase Committee was that only the Government approved medicine firms could have been given the order of purchase and a list of 10 such firms had already been circulated by the Government but the petitioner without inviting any tender and quotation from all these 10 firms, acting contrary to the Government directions and the decision of the purchase committee, had placed orders and purchased medicines from the aforementioned blacklisted firm. The accepted 11 Government norms of purchasing medicine from the firm with the lowest rate was also not followed by him and only one firm and its rates was held to be the lowest. All these aspects were carefully gone into by the enquiry officer in the light of the explanations furnished by the petitioner, and the enquiry officer had found the petitioner guilty for committing irregularity in purchase of medicines. The purchase of life saving drugs had to be made by the Civil Surgeon in terms of the decision taken by the Medicine Purchase Committee and the moment the petitioner in capacity of Civil Surgeon had violated the Government decision as approved by the Medicine Purchase Committee and that too without inviting quotations from the Government approved manufacturing suppliers, his direct complicity in committing irregularities in purchase of medicines gets fully confirmed. Irregularity in purchase of medicine by itself is an element of causing pecuniary loss to the Government and as such, when pecuniary loss has been put at the same 12 pedestal as that of a grave misconduct for the purpose of Rule 43 of the Bihar Pension Rule, the petitioner cannot be heard to say that charge no.6 was not pertaining to a grave misconduct. This Court would find that the judgment in the case of Rajendra Singh (supra) had basically proceeded on an admitted fact that for the same misconduct two other persons namely Subhash Chandra Jha and Vishwanath Prasad Singh were already exonerated and the charge of petitioner of that case namely Rajendra Singh and Vishwanath Prasad Singh was one and the same. It was in this context that this Court had held that when Vishwanath Prasad Singh was let off by punishment of censure, the charge against the petitioner Rajendra Singh could not be said to be a grave misconduct. It is thus apparent from the discussions in paragraph no.19 of the said judgment of the Rajendra Singh (supra) that this Court considering the peculiar facts and circumstances of that case had held the petitioner Rajendra Singh to be guilty of mere misconduct and not grave misconduct. 13 The expression ‘grave misconduct’ has not been defined in the Bihar Pension Rules but on account of use of expression ‘grave’, one has to assume that misconduct alleged against a delinquent has to be more serious than a mere misconduct. As noted above, when head of administration of the Health Department in a district holding the post of Civil Surgeon commits irregularity in purchase of medicine by not even inviting quotations from all eligible firms and violates the specific Government direction of purchasing medicine from a named agency, his such dereliction of duty and disobedience of the Government order and the decision of the Purchase Committee cannot be said to be a mere misconduct. Similarly as discussed above the acceptance of joining of Mr. Srivastava by the petitioner after his being from duty for almost eight years and whose services were already terminated under the orders of Directorate by holding it to be an illegal appointment of Dr. Mallik, cannot be said to a mere misconduct. Once, this Court comes to the conclusion that both the charge nos. 2 & 6 proved against 14 the petitioner were grave misconduct, there would be no difficulty in holding that the impugned order of punishment withholding 5% of his pension permanently is well within the parameters and scope of Rule 43 of the Bihar Pension Rules. That being so, this Court would find no error in the impugned order and accordingly, this writ application, being devoid of any merit, is hereby dismissed. Patna High Court Dated 29th April 2009 Rishi/ (Mihir Kumar Jha, J.)