Letters Patent Appeal No.673 OF 2008 (This appeal under Clause X of the Letter Patent Appeal of Patna High Court Rules against the judgment and order dated 24.8.2007 passed by learned Single Judge of this Court in writ petition bearing C.W.J.C. No. 483 of 2004). 1. THE STATE OF BIHAR 2. The Chief Secretary, Government of Bihar, Main Secretariat, Patna. 3. The Commissioner-cum-Secretary (Now Principal Secretary) Department of Health, Medical Education and Family Planning, Government of Bihar, Patna, Vikas Bhawan, new Secretariat, Patna. 4. Additional Secretary, Department of Health, Medical Education and Family Planning, Government of Bihar, Patna., Vikash Bhawan, New Secretariat, Patna. 5. The Deputy Secretary, Department of Health, Medical Education and Family Planning, Government of Bihar, Patna, Vikash Bhawan, New Secretariat, Patna. 6. The Joint Secretary, Dept. of Health, Medical Education and Family Welfare Planning, Government of Bihar, New Secretariat, Patna. ------------------- (Appellants) Versus DR.(CAPT.)AKHOURI RAMESH CHANDRA SINHA, Son of Late Akhouri Chandra Bhushan Singh, resident of village Churamanpur, post office- Churamanpur, police Station-Buxar Industrial Area, District- Buxar. -------------------- (Respondent) For the State :-A.A.G-2 Rajesh Kumar Singh,(J.C.to A.A.G.2) For the Respondent:-Shri Kant Pandeya No.1, Adv. Shailendra Kumar Jha, Adv. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE JYOTI SARAN ******** 2 Heard learned counsel appearing on behalf of the appellants and learned counsel appearing on behalf of the respondent. This appeal under Clause X of the Letters Patent of Patna High Court has been preferred against the judgment and order dated 24.8.2007 passed by learned Single Judge of this Court in writ petition bearing C.W.J.C. No. 483 of 2004. The writ Court has set aside the enquiry proceeding as well as impugned order of punishment dated 28th of February, 2004 whereby 100% pension of the writ petitioner (respondent herein) was withheld by way of punishment in terms of Rule, 43(b) of the Bihar Pension Rules (hereinafter referred to as the “Rules”). On behalf of the appellants it has been submitted that the limitation of four years for initiating a proceeding under Rule 43(b) of the Rules is not attracted in this case because even at the time of retirement of the writ petitioner on 30.6.2001, a memo of charges dated 27.7.1999 was issued to which the respondent had replied but the said proceeding could not conclude till the respondent superannuated and on that count under 3 legal advice, a fresh memorandum of charges dated 31.12.2001 was issued leading to the present proceeding under Rule 43(b) of the Rules. It is not in doubt that the memorandum of charges leading to the present proceeding contains several charges of the years 1995 and 1996 also but it appears that out of them only charge No.2 has been held by the enquiry officer to have been proved in part. According to the learned counsel for the appellant even if that charge is ignored for the sake of arguments, the finding of the Enquiry Officer holding the writ petitioner guilty of parts of charge No. 3 and charge No.5 are sufficient to sustain the order of punishment. Learned counsel for the appellants further submitted that if on account of the reason that some charges were of earlier period and beyond the period of four years, the writ Court was inclined to take a view in favour of the writ petitioner, only the quantum of punishment could have been reconsidered but the entire proceeding should not have been set aside along with the order of punishment. On going through the order under appeal it is found that relief has been granted to the writ petitioner not on the basis of bar of four 4 years found in proviso to Rule 43(b) but after considering the charges on merits the writ Court has come to the conclusion that findings given by the Enquiry Officer in respect of Charge Nos. 3 and 5 that they have been proved in part cannot be sustained on merits because there were no materials to support the finding. In order to appreciate the view taken by the writ Court, we perused the enquiry report available as Annexure-3 to the writ petition and also made inquiries as to what were the evidence or materials produced by the State in course of enquiry to prove the allegations of the charges. It has been submitted on behalf of the sole respondent and their statement is supported by materials on record that during the enquiry no evidence was produced or proved before the Enquiry Officer. The enquiry report itself confirms this factual position. The Enquiry Officer has first noted the charges then the defence put forward by the writ petitioner and has thereafter accorded his opinion and this exercise has been repeated in respect of all the five charges. The discussions made by the Enquiry Officer and the contents of the enquiry report shows that no detail enquiry was conducted 5 as is mandatory for awarding any major punishment. Rule 43(6) contends a clear proviso to the effect that departmental proceeding under this rule shall be in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made. The facts of the case clearly show that after the writ petitioner had submitted his reply or show cause on the set of charges, no further proceeding was conducted and only a report has been prepared by the Enquiry Officer on the basis of allegations and the show cause. This simple form of departmental proceeding is permissible under the relevant rules only for awarding of minor punishments. On going through the contents of the charge Nos. 3 and 5, it is clearly noticeable that the Enquiry Officer has not considered the defence of the writ petitioner, particularly, in response to charge No.3 which has been broken into various parts. Part 2 and 3 have been found to be proved holding that while appointing Dressers in the year 2001 no advertisement was issued, as required by the constitutional provisions nor the provisions of law relating to reservation in public employment for appointment 6 was followed. The defence of the writ petitioner was that the rules of recruitment had been so framed as to suit education mafia and appointments were required to be offered to those who completed training as Dresser after selection. There is no discussion of the relevant rule nor the Enquiry Officer has discussed the same. Those rules have been brought to our notice by the respondent by way of counter affidavit in the Letters Patent Appeal. The Enquiry Officer has also failed to notice that the department did not bring on record the detailed notings in the relevant file to meet the defence of the writ petitioner that the appointments were made in spite of his protest and on his protest, the Minister-in- charge had passed written orders for making the appointments in question. The 5th charge is to the effect that in a particular file, the writ petitioner had made a reference of Rajeev Gandhi Cancer Institute and Vidya Sagar Institute of Central Health and Neuro Science, New Delhi as governmental institutions which was incorrect and misleading. The defence of the writ petitioner was that he had not been given the context in which notings had been made 7 and such notings are usually on the basis of information furnished by the office and final decision making authority was a higher authority at the level of the State Government. We are of the view that this charge itself is vague and quite inconsequential inasmuch as nothing has been indicated in the charge that it was meant to benefit any one or to harm any one nor there is any materials to indicate the same. We find merit in the submission advanced on behalf of the sole respondent that power under Rule 43(b) for withholding of pension can be exercised only when there is a valid finding of grave misconduct against delinquent employee or that he was responsible for causing pecuniary loss to the Government. In this case, the materials disclose that there is no finding by the competent authority that the writ petitioner has been found guilty of grave misconduct or that he had caused any pecuniary loss to the State. We have carefully considered the entire facts and circumstances. We are of the view that the writ Court was justified in interfering with the opinion of the Enquiry Officer as well as with the order awarding punishment. We find no 8 merit in the appeal. It is accordingly, dismissed. Since the sole respondent has been kept deprived of his retiral benefits for long number of years and this appeal could be heard on an early date only on account of his moving the Apex Court for early hearing, we feel that ends of justice require award of further cost for the purpose of this appeal which is quantified as Rs. 10,000/-. This cost is in addition to the cost awarded in favour of the writ petitioner by the writ Court. If on account of pendency of this appeal, the appellants have not paid the retiral benefits to the sole respondent so far, the appellants are directed to ensure that all such benefits along with arrears and the cost are made available to the sole respondent without any delay and in any case, within three months from today. Patna High Court Date 15th of September, 2009 Bibhash AFR (Shiva Kirti Singh, J.) (Jyoti Saran, J.)