1 IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.987 of 2008 1. THE STATE OF BIHAR, through its Chief Secretary, Old Secretariat Building, Patna 2. The Commissioner cum Secretary, Department of Health and Family Welfare, Govt. of Bihar, Vikas Bhawan, Patna 3. The Deputy Secretary, Department of Health and Family Welfare, Govt. of Bihar, Vikas Bhawan, Patna 4. The Director-in-Chief, Health Services, Department of Health and Family Welfare, Govt. of Bihar, Vikas Bhawan, Patna … Respondents/ Appellants. Versus 1. DR.RAMAVTAR PRASAD, son of late Gullela Ram, resident of village Narauli, P.S. Bakhtiarpur, District Patna … Petitioner/ Respondent 1st party. 2. The Accountant General, Bihar, Patna 3. The Bihar Public Service Commission, through its Secretary, 16 Jawahar Lal Nehru Marg, Bailey Road, Patna … Respondents/Respondent 2nd party ----------- For the Appellants : Sri Shashi Kant Singh, A.C. to G.A.-6 For the Respondent no. 1: Sri Janardhan Singh, Advocate Sri Ranjan Kr. Singh, Advocate For the Respondent no. 2: Sri J.P. Karn, Senior Advocate. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (2.2.2010) As per Mihir Kumar Jha,J. Heard counsel for the appellants and the respondents. 2. This appeal is directed against the order dated 11.7.2008 in C.W.J.C.No. 5034/2006 whereby and whereunder the writ application of respondent no.1 has been allowed by quashing an order of punishment passed 2 in a departmental proceeding against him forfeiting his entire pension by substituting the same for withholding only 5% of his pension. 3. The facts of this case lie in a very narrow compass. The writ petitioner-Respondent no.1 was appointed as Civil Assistant Surgeon on 3.10.1977 and while holding the post of Civil Surgeon he was placed under suspension on 4.7.1996. Subsequently a departmental proceeding was initiated against respondent no.1 by serving him a memo of charge dated 26.7.1996 wherein eight separate and distinct charges were framed against him. The aforesaid order of suspension of Respondent no. 1 was however quashed by this court by an order dated 3.9.1996 this Court in C.W.J.C.No. 3627/1996 primarily on the ground that the same was not passed by the competent appointing authority i.e. the Council of Ministers and consequently respondent no.1 was directed to assume charge of his post. The appellant State of Bihar and its authorities had, however, again placed respondent no.1 under suspension by an order dated 11.7.1998 and when the same was again assailed by him in C.W.J.C.No. 8287/1998, this Court by an order 3 dated 14.12.1998 had directed to complete the pending departmental proceeding against him by 28.2.1999 failing which the order of suspension was to stand revoked with effect from 1.3.1999. 4. It appears that in the meantime a supplementary memo of charge was also framed and served on respondent no.1 on 5.1.1999 adding seven more charges against him. The departmental proceeding against respondent no.1 could not be completed by 1st of March, 1999 and as such, the order of suspension of respondent no.1 stood automatically revoked in view of the order of this court dated 14.12.1998. Respondent no.1 thereafter had filed another writ petition C.W.J.C.No. 12110/2000 this time for quashing of the departmental proceeding itself but this Court by an order dated 9.5.2001 had declined to interfere with the departmental proceeding and had disposed of the same by fixing a period of six months for concluding the departmental proceeding. It appears that thereafter on 4.7.2001 the Enquiry Officer had submitted his enquiry report wherein charge nos. 2 and 8 was not found to be proved, charge nos. 1, 4, 5, 6, 12 and 13 were held to be 4 partly proved and the remaining charges no. 3, 7, 9, 10, 11, 14 and 15 were found to be proved. Respondent no.1 was thereafter served with the enquiry report on 8.1.2002 giving him an opportunity to submit has comment/ reaction to the said enquiry report and when the same was submitted by him on 22.1.2002, he was inflicted punishment of dismissal from service by an order dated 26.7.2002. 5. The aforesaid order of punishment was however quashed by this Court by an order dated 14.10.2003 in C.W.J.C. No. 13816 of 2002 wherein this Court had given a liberty for proceeding afresh with the departmental proceeding. Thereafter respondent no.1 was reinstated in service by the notification dated 16.12.2003 but was again placed under suspension and it was during the period of suspension that respondent no.1 had superannuated from service on 29.2.2004 and only after his superannuation a second show cause notice was issued on 5.8.2004/ 8.9.2004 directing respondent no.1 to submit his reply as to why his full pension should not be forfeited in terms of Rule 43(b) of the Bihar Pension Rules. Respondent no.1 had thereafter submitted his 5 tentative reply as also had requested for supply of documents for effective show cause reply but it appears that without serving such documents, respondent no.1 was visited with the order of punishment dated 27.2.2006 forfeiting his entire pension. This order dated 27.2.2006 was assailed in the connected writ petition, C.W.J.C.No. 5034/2006, which as noted above was allowed by quashing the order of punishment and substituting it by forfeiting of only 5% of his pension in the impugned order under this appeal in the following manner: “ In conclusion this Court holds that the impugned punishment is vitiated in so far as forfeiture of the entire pension vis a vis sub- charges 9 to 15 of Charge No.5 is concerned. However, in view of the Court having declined to interfere with the other proved charges, the question becomes one of proportionality on the quantum of punishment. Normally the Court does not enter in to that aspect which is the domain of the Disciplinary Authority. The matter is normally remanded for the purpose. Unless the punishment is grossly disproportionate or there are other circumstances surrounding justifying interference by the Court. In (2000) 3 SCC 450, U.P. State Road Transport Corporation vs. Mahesh Kumar Mishra & ors., the Tribunal rejected the challenge to 6 termination. The High Court interfered directing reinstatement with only 25% back wages. The Apex Court held that the Courts can interfere with the punishment inflicted if the penalty shocks the conscience of the Court. That there is no absolute bar on the Courts doing so. In (2007) 9 SCC 310, State of Gujrat vs. Anand Acharya, it has been held that the Court can on facts to shorten the litigation make an exception and impose appropriate punishment with cogent reasons in support thereof. The petitioner has retired on 29.2.2004. His entire pension has been forfeited. He is litigating since he was in service. The charges of financial misdemeanours causing revenue loss to the Government has not been upheld by the Court. The petitioner at the stage of life where he should be left in peace to enjoy his retirement unless circumstances be compelling. To subject him to a remand on the quantum of punishment shall only prolong his agony. The proved charges relate only to misconduct in discharge of duties. But at the same time these proved charges are sufficient for the Court to hold in totality that the petitioner cannot have the complete benefit of his retirement to be fully absolved of the same. In the circumstances, the impugned orders of punishment are held to be not wholly sustainable. Appropriately, a reduction of 5% of the pension shall meet the ends of justice in view of the findings of misconduct in discharge of 7 duties. The orders of punishment stands modified accordingly.” 6. It has to be however noted that the aforementioned order of the learned Single Judge was stayed by this Court by an order dated 10.2.2009, while admitting this appeal for final hearing. 7. Before us the learned counsel for the appellants has raised a number of issues but one to which we are impressed is with regard to direction of the learned Single Judge as with regard to quantum of punishment. The learned Single Judge infact having declined to interfere with the findings on the charges has proceeded to examine the proportionality of quantum of punishment. In this regard it has been held by him that normally the courts do not enter on the question of quantum of punishment which is in the domain of the disciplinary authority and the matter has to be invariably remanded for that purpose to the disciplinary authority. However, having held so, he by placing his reliance on the judgment of U.P. State Road Transport Corporation vs. Mahesh Kumar Mishra & ors., reported in (2000) 3 SCC 450 as also in the case of State of Gujrat vs. Anand 8 Acharya, reported in (2007) 9 SCC 310, has come to his conclusion that since respondent no.1- writ petitioner had retired on 29.2.2004 and since the charges of financial irregularities causing loss to the State exchequer had not been proved in the departmental enquiry it would not be prudent to remand the issue of the quantum of punishment as the same would only prolong his agony and has thus held that reduction/withholding 5% of his pension for the proved charges would meet the ends of justice. 8. That would, therefore, bring us to the core issue as to whether in the given facts and circumstances the substitution of punishment of forfeiting 5% pension of respondent no.1 is justified. In this respect it would be necessary to have a look of the charges which were framed against respondent no.1 in the departmental proceeding which on being translated in English would reads as follows : (i) The writ petitioner namely Dr. Ramautar Prasad never cared for the D.D.T. spray work and due to his negligence, there was substantial increase in cases of Kalazar. (2) He was also found absent from the headquarter. 9 (3) The writ petitioner has also used Govt. vehicle in his private tours at Patna, Dhanbad and Gaya. (4) Since last 14 years the writ petitioner was doing private practice and neglects the Government duty. (5) The writ petitioner used to avoid participating in District Level meeting relating to 20 point programme and disobeyed the Government directions. (6) The writ petitioner was found guilty for making of payment of arrears of salary to compounder namely, Sri Ganesh Sharma whose appointment was illegal. (7) The writ petitioner was also found guilty for purchasing medicines from M.S.D., Calcutta. (8) The writ petitioner was also involved in making several illegal appointments. (9) The writ petitioner made appointment of A.N.M. and Class IV employees with maintaining roster in the district of Sasaram violating reservation policy as well as without consent of the members establishment committee. (10) In course of an order dated 5.7.1995 passed in C.W.J.C.No. 4032/95 by the Hon’ble High Court the writ petitioner was directed to submit medical report to the District Magistrate but the writ petitioner did not obey or comply the order of the department. (11) The writ petitioner was nominated by designation as presenting officer in the case of 10 Dr. Awadh Agarwal, M.O. State Dispensary Gorari, Karakat (Rohtas) in the departmental proceeding case but the writ petitioner never presented himself before the conducting officer with relevant facts on the date fixed for the purpose of enquiry. In this regard an explanation was asked from the writ petitioner but the writ petitioner never bothered for submitting his explanation. (12) The writ petitioner was involved in Medical store Depo (in short M.S.D.) Scam and he had issued order/ indents for crores of rupees. In the said indent the writ petitioner had indicated that the cost deliberate to 2210 medical and public health of Rural H ealth Services Allopathy- 103, Primary Health Centre through A.G.Bihar, where there was no allotment at the disposal of the writ petitioner for purchasing such large amount of medicines such action of the writ petitioner resulted in heavy pecuniary loss to the State Government. (13) The department vide Memo No. 169 (10) dated 22.4.1994 had stopped taking medicines from MSD Calcutta but ignoring the aforesaid order the petitioner issued indent no. 2234 dated 27.7.1994. (14) The writ petitioner had also issued indent to MSD Mumbai amounting to Rs. 9,10,111/-. (15) For his personal gain from MSD the writ petitioner issue indent for supply of medicines without proper allotment which is violation of the financial rule 479 and also caused pecuniary 11 loss to the State Govt.” 9. This Court would find that the learned Single Judge in fact was not inclined to interfere with the finding of guilt as with regard to charge nos. 1, 3, 4, 6 and 7 and has only examined charge no.5 as also its split sub-charges 9 to 15 and has held the finding of the Enquiry Officer to be unsustainable only on the ground that the documents as demanded by respondent no.1, writ petitioner, were not supplied and thus, he was deprived of reasonable opportunity to defend himself. 10. It has to be kept in mind that even for charge no.5 involving financial abuse of power by the Respondent writ petitioner which was found to be proved by the Enquiry Officer and made basis for inflicting punishment of forfeiting/withholding full 100% of his pension it is not the finding of the learned Single Judge that they were not capable of being proved and were actually not proved and thus if non-supply of document causing prejudice to the respondent writ petitioner was the only ground for the purposes of reducing punishment of forfeiture of his entire 100% pension to only 5% of pension it was in the fitness of 12 thing that the matter had to be remitted back for holding further enquiry from the stage where the documents were demanded by the delinquent. It has however to be noted that initially when the charges were framed against respondent no.1- writ petitioner, no such prejudice was caused to him, inasmuch as he had filed his explanations in respect of all of them but it is only after the receipt of the enquiry report and the findings recorded therein proving charge no.5 with sub-charges no. 9 to 15 that the respondent writ petitioner had made a demand for supply of demand of documents by the delinquent Respondent writ petitioner at this belated stage is infact unknown to the procedure of departmental enquiry and service jurisprudence unless such documents were not referable to memo of charge and were utilized by the Enquiry Officer for proving the charges causing surprise and prejudice to him. 11. In fact it is not the finding of the learned Single Judge that there were no materials to prove those charges but what had really weighed upon him in holsing in favour of Respondent no. 1 is the discharge of onus with regard to proving those charges. In the opinion of 13 this Court once the learned Single Judge was satisfied that some of the charges against respondent no.1 had stood proved, there was no scope for any interference by this Court under Article 226 of the Constitution and the only recourse open to him was to remit the matter back to the disciplinary authority for a reconsideration on the question of quantum of punishment. In this regard the learned Single Judge seems to have ignored the statutory provisions of Rule 43(b) of the Bihar Pension Rules which itself lays that pension of a retired employee can be withheld forfeited not only in case of causing loss to the Government exchequer but also on account of the gross misconduct as would be evident from the reading of Rule 43 of the Bihar Pension Rules which reads as follows: “ 43(a) Future good conduct is an implied condition of every grant of a pension. The Provincial Government reserved to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner is convicted of serious crime or be guilty of grave misconduct. The decision of Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.” 14 (b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement. Provided that ......................" (underlined by us for emphasis) 12. Thus in view of the aforementioned unambiguous statutory provisions clearly stipulating withholding/withdrawing pension on the ground of proven misconduct in a departmental proceeding, it would not be correct to hold in law much less a sound exercise of discretion to hold that merely because one of the charges regarding financial irregularity was not proved due to lack of affording a reasonable opportunity to the respondent writ petitioner, that by itself would be sufficient to take away the quantum of 95% of the punishment by directing only forfeiting of his 5% 15 pension. It is well settled that if out of more than one charge the employee is found guilty of some but not all of them, the authority may be entitled to impose a suitable punishment particularly when the charges were not dependent of each other. Reference in this connection may be made to the judgment of the Apex Court in the case of State of U.P. vs. O.P.Gupta, reported in A.I.R. 1970 S.C. 679. In fact the Apex Court in the case of State of U.P. & ors. vs. Nand Kishore Shukla & anor., reported in AIR (1996) 3 SCC 750, has gone to the extent of holding that there would be no interference with the punishment imposed if even one of the charges proved was sufficient to impose penalty. 13. It is in this backdrop that we have examined the whole matter and find ourselves not in a position to affirm the reasonings of the learned Single Judge holding that the order of punishment as a consequence of not being sustained on account of the charge of financial irregularity not proved against the Respondent-writ petitioner was itself sufficient to scale down the quantum of punishment from forfeiting of his entire 100% pension of the respondent to only 5% of his 16 pension. A mere mechanical approach by holding that an order of punishment is disproportionate can never be applied by way of rule of thumb by the writ court inasmuch as it is only the amount of money involved but other factors like mental set up, type of duty performed and other relevant consideration which would also weigh in awarding such punishment. The Apex Court in this context in the case of Regional Manager, U.P. SRTC, Etawah vs. Hoti Lal and another, reported in 2003(3) SCC 605, after referring to its earlier judgments in the case of (i) B.C. Chaturvedi Vs. Union of India reported in 1995(6) S.C.C. 749. (ii) Union of India Vs. G. Ganayutham reported in 1997 (7) S.C.C. 463. (iii) Om Kumar Vs. Union of India reported in 2001(2) S.C.C. 386. (iv) Karnataka SRTC Vs. B.S. Hullikatti reported in 2001(2) S.C.C. 574. and (v) Regional Manager, RSRTC Vs. Ghanshyam Sharma reported in 2002(10) S.C.C. 330 has laid down the law with regard to review of proportionality punishment in departmental proceedings in the following words:- "It needs to be emphasized that the court or tribunal while dealing with the quantum of 17 punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. A mere statement that it is disproportionate would not suffice. A party appearing before a court, as to what it is that the court is addressing its mind. It is not only the amount involved but the mental set-up, the type of duty performed and similar relevant circumstances which go into the decision- making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree 18 of integrity and trustworthiness is a must and unexceptionable. Judged in that background conclusion of the Division Bench of the High Court do not appear to be proper." 14. As a matter of fact the Apex Court again in the case of Chairman and Managing Director, United Commercial Bank & ors., reported in (2003) 4 SCC 364, has gone to hold that the nature of post held is an important factor to be considered by the court when judging the proportionality of punishment imposed upon the delinquent. The Supreme Court in fact in cases of charges of financial misconduct has altogether rejected the complaint of disproportionate punishment and in this connection reference may be made to the case of State of Tamil Nadu & ors. vs. K. Guruswamy, reported in (1996) 7 SCC 114, Jawahar Lal Wali vs. State of Jammu and Kashmir & ors., reported in (1993) 2 SCC 381, Municipal Committee, Bahadurgarh vs. Krishnan Behari & ors., reported in (1996) 2 SCC 714, Punjab State Civil Supplies Corporation ltd., Chandigarh vs. Narinder Singh Nirdosh, reported in (1997) 5 SCC 62 and Tara Chand Vyas vs. Chairman and Disciplinary authority & ors., reported in (1997) 4 SCC 565. 19 15. Thus on the basis of aforesaid long line of cases of the Apex Court on the subject of review of disproportionate punishment by a writ court exercising power under Article 226 this can safely hold that the punishment imposed by the disciplinary authority normally has to remain beyond the jurisdiction of judicial review of a court/tribunal and only in the event of a rare of the rarest case if it is satisfied that the order of punishment being shocking to conscience would require a reconsideration, the same for its specific reasons recorded in the order itself has to be remitted back to the disciplinary authority instead of reducing/scaling down the punishment. In this connection we may usefully refer to the following passage of judgment of Apex Court in the case of Secretary to the Govt., Home Department vs. Srivaikundathan, reported in (1998) 9 SCC 553, "The Tribunal was also not justified in interfering with the punishment which was imposed on the respondent. It is for the disciplinary authority to consider the punishment which should be imposed. The disciplinary authority in the present case, looking to the gravity of charges, and looking to 20 the fact that both the respondent as well as Joseph were entrusted with the custody of the two prisoners and has been guilty of total dereliction of duty, as a result of which a life convict escaped, has imposed a somewhat lesser punishment of removal from service on the respondent. The Tribunal was wrong in saying that since the respondent had served only for a short period, he should be given another chance. The Tribunal, in a serious matter involving proper discharge of duty by a member of the Police Force, ought not to