CIVIL WRIT JURISDICTION CASE No.10435 OF 2003 -------------- In the matter of an application under Article 226 of the Constitution of India. --------------- DR. DINESHWAR SINGH, S/O LATE RAGHUBIR SINGH, R/O MOHALLA-TAJ BAJ POKHRA, P.S.-HAZIPUR TOWN, DISTRICT-VAISHALI. ………………PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA-1. 2. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 3. THE DEPUTY SECRETARY TO THE GOVERNMENT, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 4. THE ADDITIONAL SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 5. SRI D.N.MANDAL, JOINT SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 6. SRI ANJANI KUMAR VERMA, THE THEN DEPUTY SECRETARY-CUM-ENQUIRY OFFICER, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 7. THE SECTIONAL OFFICER, SECTION NO.9, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE-CUM-PRESENTING OFFICER, GOVERNMENT OF BIHAR, NEW SECRETARIAT, PATNA. 8. THE ACCOUNTANT GENERAL (BIHAR), PATNA, BIR CHAND PATEL PATH, PATNA. …………………RESPONDENTS. -------------- For The Petitioner : Mr.Akashdeep, Adv. For The Respondents : A.C. to AAG-II P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J: Petitioner has filed this writ application for quashing of Annexure-13, a notification of the Department of Health, Medical Education and Family Welfare, contained in memo no. 651(9) dated 01.09.2003, by which, on conclusion of a proceeding, punishment of forfeiture of his full pension has been imposed. In addition to the said punishment, he has 2 also been ordered to deposit an amount of Rs.3,71,396/- in the Treasury, in terms of letter no. 779(3) dated 25.06.2002 (wrongly mentioned as 23.06.2002). This notification was issued pending concurrence of the Bihar Public Service Commission (hereinafter referred to as ‘the Commission’). During the pendency of this writ application, concurrence of the Commission was received by the Department and hence another notification, contained in Memo No. 1348(9) dated 17.08.2004, was issued on the same lines in continuation of the earlier notification. This notification was produced on record by the petitioner through I.A. No. 3666 of 2005 as Annexure- 14, praying for liberty to challenge the same also. The said I.A. was allowed by this Court by order dated 28.07.2005 and was ordered to be treated as part of the writ application. Petitioner was initially appointed as Civil Assistant Surgeon on 30.06.1966. He was granted Junior Selection Grade on 01.04.1979, Senior Selection Grade on 01.04.1989, Super Time Selection Grade on 01.09.1996, and was posted as Deputy Director (Training) Health, Bihar, Patna on 16.10.1998 from which post he superannuated with effect from 31.1.2000. During the service period, he was awarded Certificate of Appreciation for his work in connection with National Family Welfare Programme and was sent for training to National Tuberculosis Institute, Bangalore, twice. While the petitioner was posted as Child 3 Specialist-cum-Medical Officer Incharge, Referral Hospital, Sonepur, in the district of Saran, in course of implementation of the National Family Welfare Programme, he was involved in procurement of some medicines from Medical Stores Department, Calcutta (for short ‘MSD, Calcutta’), as per the guidelines of the Programme. In connection with some alleged lapses and irregularities committed by him in course of such procurement, he was put under suspension on 04.12.1998 in contemplation of a departmental proceeding. The departmental proceeding did not start and, therefore, petitioner moved this Court in CWJC No. 17 of 1999. The said writ application was disposed of by order dated 14.01.1999 (Annexure-1/1) with a direction to the respondents to serve charge-sheet on him by 28.02.1999, failing which the suspension was to stand quashed automatically with effect from 02.03.1999. Direction was also issued to conclude the departmental proceeding within six months, if initiated. As the charge-sheet was not served on the petitioner by the date fixed by the Court, the suspension order automatically stood quashed. However, notification to this effect was issued by the respondents only on 19.03.1999. Through memo dated 09.03.1999 (Annexure-2) a charge-sheet was served on the petitioner and a departmental proceeding was initiated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1935 (for short ‘the Rules’). In the 4 charge-sheet facts and charges were mentioned in four paragraphs. In the 1st paragraph it was stated that MSD, Calcutta through its letter no. 243 dated 04.04.1997, had informed that in the year 1992-93 and 1993-94 medicines were purchased from the MSD, Calcutta and payments were made. In the 2nd paragraph it was stated that petitioner, in the capacity of Incharge, Medical Officer, was not authorized to purchase the medicines from MSD, Calcutta directly, but by issuing the procurement orders, he had violated the Financial Rules. In the 3rd paragraph it was stated that the purchase policy, contained in Department’s letter no. 176(10) dated 27.01.1982, was not complied with and, even after issue of letter no. 549(10) dated 26.07.1991, the procedure was violated and medicines were purchased unauthorizedly. In the 4th paragraph it was stated that the amount involved was beyond the sanctioned amount for purchase of medicines which shows grave financial irregularity. In the charge-sheet certain documents were mentioned as evidence in support of the charges. By the resolution, accompanied with the charge-sheet, one Dr.D.K. Raman, Deputy Director, Health, Bihar, Patna was appointed as Conducting Officer and Section Officer of Section-9 was appointed as Presenting Officer. Petitioner was directed to submit his reply within three weeks. By subsequent memo dated 31.03.1999 (Annexure-3) the Conducting Officer was changed and respondent no.9 was appointed as Conducting Officer. 5 On receipt of the charge-sheet, petitioner found that the very letter which was the basis for initiation of the proceeding, i.e. the letter of the MSD, Calcutta, had not been supplied with the same. Hence, through his letter dated 10.05.1999 (Annexure- 4) he requested the Conducting Officer to furnish a copy of the said letter. He also requested that, if payment had been released to the MSD, Calcutta in respect of the procurement orders issued by him, details and copies of cheques and/or bank drafts with the dates of issue may also be made available to him. He also requested for a copy of the agreement between the State Government and MSD, Calcutta in respect of supply of medicines. The documents requested by the petitioner were not supplied to him. However, since the time granted for reply was expiring, petitioner submitted his reply to the charges on 19.05.1999 denying all the charges. In his reply, inter alia, he mentioned that suspecting some irregularities and fraud in the supply of medicines, he had informed the MSD, Calcutta, by registered letter no. 827 dated 21.09.1992, to stop supply of medicines and had requested for enquiry by Vigilance Department. In the reply, he had also taken a stand that, being the Incharge Medical Officer of the Referral Hospital, he was authorized to make purchases directly. He also took a stand that, in fact, he had not issued any purchase order and had only issued procurement order in respect of year 1992-93. In respect of the year 6 1993-94, he specifically denied to have issued any procurement order for supply of medicines to the Referral Hospital. He also took a stand that no payment was released by him in respect of the medicines and, therefore, no financial irregularity was committed by him. Even after submission of his reply and after initiation of the proceeding the documents requested by him through his letter dated 10.05.1999 were not supplied to him. However, on 21.06.1999, the date fixed in the enquiry, he submitted a written request (Annexure-6) to the Conducting Officer to call for and examine the representative of MSD, Calcutta and the representative of Health Ministry of Government of India. It was stated in the letter that on the earlier date, i.e. on 14.05.1999, for their examination in the proceeding, he had already made such a request, verbally. However, neither documents were supplied to him nor the said request made by him in writing was accepted and, as petitioner came to know later on, only two days after, i.e. on 23.06.1999 the enquiry officer submitted his report, finding him guilty of the charges. The proceeding stood still thereafter, and petitioner was allowed to superannuate with effect from 31.1.2000. After superannuation, petitioner approached the respondents and made several requests for release of his retiral benefits, which was not done by the respondents. Instead a resolution was issued on 15.12.2001 (Annexure-7) converting the 7 pending proceeding against the petitioner into one under Rule 43(b) of the Bihar Pension Rules (for short ‘the Pension Rules’). But no further orders were issued, nor retiral benefits of the petitioner were paid thereafter. Hence, he again moved this Court through CWJC No. 2278 of 2002 for payment of his retiral benefits. It is pleaded that on 15.05.2002 this Court directed the Joint Secretary, Health Services, to be personally present in Court on the next date. Accordingly, on 25.06.2002, i.e. on the next date in the case, she was present in Court and, in her presence, the writ application was disposed of with detailed directions for payments of retiral dues to the petitioner, noticing her stand that 90% pension had already been sanctioned to him and there was no criminal case pending against him. It is also pleaded that, getting annoyed by being compelled to appear in Court, the same Joint Director, the very same day in the evening, issued a cryptic order (Annexure-9), in one line, directing the petitioner to deposit an amount of Rs.3,71,369/-. No reason was mentioned for such a demand in the said letter. Hence, petitioner requested her, by his letter dated 08.07.2002 (Annexure-9/1), to let him know the reasons for demand of the said amount. Instead of responding to the said request of the petitioner, the same Joint Director issued a show cause notice dated 31.10.2002 (Annexure-10), enclosing a copy of the earlier enquiry report (Annexure-11), and informing him that the Government 8 had decided to forfeit his full pension in view of the proved charges and, accordingly, he was asked to show cause within one week, in terms of Rule 139 of the Pension Rules, as to why his full pension may not be forfeited. In the meanwhile, the respondents challenged the said order passed in CWJC No. 2278 of 2002 before a Division Bench in LPA no. 835 of 2002, and the Division Bench disposed of the LPA by order dated 07.02.2003 (Annexure-12), modifying the order with a direction to the respondents to pay 90% pension and Gratuity to the petitioner, which order was communicated to the respondents through his representation dated 24.03.2003 (Annexure-12/1). However, even 90% pension and gratuity was not paid to the petitioner and, by impugned notification dated 01.09.2003, punishment was awarded forfeiting his full pension, and directing him to deposit the said amount demanded by Annexure-9. As said earlier, this order was issued pending concurrence of the Commission, which was received and revised notification, as contained in impugned Annexure-14, was issued. Challenging the order of punishment, learned counsel for the petitioner submitted that the punishment order was vitiated on account of unexplained delay caused in the proceeding. It was submitted that the enquiry, for lapses in respect of the period 1992-93 and 1993-94, had been initiated only in 1998 i.e. six years after, and final punishment order was issued in 2004 i.e. 12 years 9 after the incident. He further submitted that, at different stages, the respondents committed gross violation of Principles of Natural Justice. He submitted that the said letter of the MSD, Calcutta dated 04.04.1997, which was the basis for initiation of the proceeding against the petitioner was never supplied to him inspite of specific request made by him in this regard. It was also submitted that he requested for other documents, namely, the proof of payment against the said supply etc., but the same were also not furnished to him. His request for examination of witnesses was not accepted and only two days after, the enquiry report was submitted without affording him full opportunity to prove his innocence. He submitted that the second show cause notice, issued to him, itself shows that the respondents had already taken a decision to forfeit his full pension and, therefore, this notice was issued to him with premeditated mind which shows that the respondents had developed bias and prejudice against the petitioner from before. He further submitted that, as per the enquiry report, it is admitted position that no payment was released by the petitioner in respect of any supply of medicines for the relevant period. The enquiry report also shows that the case of issue of purchase/procurement order by the petitioner for medicines in respect of the year 1993-94 was completely given up by the respondents at the stage of enquiry. The enquiry report also shows that in respect of the year 1992-93 10 the petitioner had already sent a registered letter dated 21.09.1992 to the MSD, Calcutta to stop supply. Therefore, it was MSD, Calcutta which was at fault in supplying the medicines, inspite of such communication received from the petitioner. He submitted that, in the light of these established facts, the only lapse of the petitioner, which was found established by the enquiry officer, was that he sent the procurement order in respect of 1992-93 to MSD, Calcutta directly, without sending a copy of the said letter to the Deputy Director, Health Services (Materials). Learned counsel for the petitioner submitted that, after superannuation and after conversion of the proceeding under Rule 43(b) of the Pension Rules, the scope of the proceeding stood narrowed down. In terms of the said Rule 43(b), in a pending proceeding, or in a proceeding initiated under the Rule, a retired Government servant can be imposed punishment of withholding of pension, full or in part, only if he is found, in a departmental or judicial proceeding, to have been guilty of grave misconduct or to have caused pecuniary loss to Government by mistake or negligence during his service. He submitted that, in view of the findings of the enquiry officer, the only lapse on the part of the petitioner was of not intimating the Deputy Director, Department of Health (Materials) about procurement order sent for supply of medicines in respect of the year 1992-93 and having not forwarded 11 a copy of the letter to him. He submitted that this was not a gross misconduct and, since admittedly petitioner had not released payments against those alleged supplies and had already intimated the MSD, Calcutta to stop supply, he obviously did not cause any pecuniary loss to the Government. He submitted that, in the circumstances, the act of the petitioner did not fall within the scope of the said Rule 43(b), so as to make the respondents entitled for withholding of his full pension permanently. Learned counsel for the petitioner also submitted that though the second show cause notice was issued to the petitioner in reference to Rule 139 of the Pension Rules, the punishment order has been issued to him purportedly in terms of Rule 43(b), as the proceeding stood converted under that Rule by specific order, as contained in Annexure-7, which also vitiates the entire proceeding and punishment order. It was also submitted that no notice under Rule 43(b) was issued to the petitioner before the impugned order was passed. In support of the submissions, learned counsel for the petitioner relied upon many decisions of this Court as well as of the Apex Court. Respondents have appeared in the case and have filed their counter affidavits. In the counter affidavit, it is stated that, after concurrence of the Commission, final orders were issued, as contained in Annexure-14. It is also contended that proper opportunity was given to the petitioner. In the counter affidavit, it is admitted that, by the 12 said letter no. 243 dated 04.04.1997, details of medicines and their vouchers and amount paid was communicated by the MSD, Calcutta to the respondents. It is also admitted that this letter was not supplied to the petitioner. The reasons assigned for non- supply of this document to the petitioner is that the same was not in any way helpful to the petitioner. In respect of the delay in the proceeding, it is stated that legal opinion was obtained and the file had to be processed due to which delay was caused in the final conclusion of the proceeding. It is also said in the counter affidavit that there was a pecuniary loss of Rs.3,71,396/- to the State Government in the matter. It is also stated that CBI enquiry was going on in the matter of medicine purchases from MSD, Calcutta on the orders of this Court. Perhaps to justify the notice issued to the petitioner under Rule 139 of Pension Rules, it is stated in the counter affidavit that there were a number of complaints in respect of petitioner’s style of working and activities and letters had been received from the ministers and other authorities and other complaints had also been received against the petitioner including the said letter of the MSD, Calcutta. With the supplementary counter affidavit, the policy and guidelines in respect of purchase of medicines by the Officers of the Health Department has been annexed. The respondents have also produced an order passed by this Court dated 11.05.2005 in CWJC No. 11908 of 2004, by which, according to their 13 stand, in identical situation, in respect of irregularities in purchase of medicines from MSD, Calcutta, a writ application was dismissed and the order of dismissal passed by the respondents against the concerned petitioner was upheld. As said earlier, learned counsel for the petitioner has relied upon a number of judgments in support of his submissions. However, in view of the facts and circumstances of the case as discussed hereinbelow, this Court does not find reference to the said decisions necessary. On the other hand, so far as judgment relied upon by the respondents is concerned, copy whereof is annexed with the supplementary counter affidavit, it appears that it was in respect of a person who was still in service. This Court found that, in respect of procurement and supply of medicines from MSD, Calcutta, he had grossly violated the guidelines of the Department, which was admitted by the said petitioner himself in his reply. This Court also found that there was no allegation by the writ petitioner of infraction of Rules of Natural Justice in the proceeding. Hence, this Court came to the conclusion that, in view of admission of the petitioner, and there being no allegation of any illegality committed or any breach of Principles of Natural Justice and fair play committed by the respondents in the decision making process, and the petitioner being still in service at the time of his dismissal, his order of dismissal, issued in terms of Rule 55 of the Rules, was valid. 14 So far as present case is concerned, petitioner superannuated before the proceeding could conclude. Therefore, the pending proceeding was converted into one under Rule 43(b) of the Pension Rules. It is well established that there is difference between the scope of a proceeding under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1935 and a proceeding under Rule 43(b) of the Pension Rules. Under Rule 43(b) of the Pension Rules any misconduct does not entitle and employer to impose punishment of withholding of part or full pension, temporarily or permanently. It is only in case of pecuniary loss caused to the Government or in case of gross misconduct such punishment can be awarded. Therefore, either of the said two pre-conditions must stand established in the enquiry by specific finding in this regard to enable the respondents to invoke their power under the said Rule and pass orders thereunder. The enquiry report submitted in respect of the petitioner does not contain any such finding. On the other hand it stands admitted that the petitioner did not release any payment in respect of supply of medicines for the period 1992-93. No other period or payment was under consideration before the enquiry officer. It also stands accepted that the petitioner had promptly intimated the MSD, Calcutta to stop supply of medicines as soon as he sensed some fraud in the supply of medicines. The only lapse on the part of the petitioner, for which he has been found 15 guilty of the charges, is that he did not forward a copy of the procurement order in respect of the year 1992-93 to the Deputy Director, Health Services (Materials). The said procurement order was promptly cancelled by the petitioner is also admitted. There is nothing on the record, nor has been discussed or noticed in the enquiry report, that in respect of the procurement order for the year 1992-93, supply was made and received by the petitioner before he sent the said cancellation letter through registered post dated 21.09.1992. This lapse of not forwarding the copy of the procurement order to the authorities of the Department, only of which petitioner was found guilty, cannot in any manner be termed as gross misconduct. Moreover, the same was cancelled and admittedly no payment was made by the petitioner. There is also nothing on record, nor has been discussed in the enquiry report that any payment was made at his behest by any other authority of the Government in respect of the alleged supply made by the MSD, Calcutta for the year 1992-93. Hence, question of pecuniary loss caused to the Government at the instance of the petitioner is also not established. In the circumstances, apparently, the order of punishment, purportedly to have been passed under Rule 43(b) of the Pension Rules, does not stand the test of law for a valid order under the said Rules. Another illegality committed in the decision making process, which vitiates the proceeding, is 16 that admittedly the document, which was sheet anchor for initiating the proceeding against the petitioner, was not supplied to him. The letter of the MSD, Calcutta which was sole basis for initiation of proceeding and which contained the details of the supply and payments was admittedly not made available to the petitioner at any point of time. Besides, other details in respect of payment released in respect of the supplies were also not made available to the petitioner inspite of having been specifically asked for by the petitioner through his letter to the Conducting Officer, as contained in Annexure-4. Even if it is accepted that the witnesses, whom the petitioner requested to be called for, were not necessary to be examined, as the charges against the petitioner was of violation of guidelines of the Department in respect of procurement and supply of medicines, which could be established by the documents itself, the fact remains that the documents which could establish the same and which were made the basis for initiation of proceeding against him were admittedly not supplied. Thus, it is established that there was a breach of Rules of Natural Justice and fair play in the decision making process adopted by the respondents which goes to the root of the matter. As a result, in view of the discussions and findings as above, this Court finds that the impugned orders, as contained in Annexures- 13 and 14, as well as Annexure-9, by which, without any rhyme or reason 17 the petitioner was directed to deposit a huge amount, even before conclusion of proceeding, and even before passing of any punishment order, as well as entire proceeding, are bad in law and unsustainable. Accordingly, the same are quashed. The respondents are directed to calculate and pay the entire remaining pensionary benefits under different heads at the rates admissible to the petitioner within a period of three months from the date of receipt/production of a copy of this order. It is made clear that, in case, the dues of the petitioner are not paid