IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14112 of 2004 DR.RAM NARESH SINGH Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : M/S Banwari Sharma and Shiv Kumar For the State: Mr. Bibhakar Tiwary, J.C. to G.P.XIX For Accountant General : Mr. Umakant Singh ----------- 08 10.07.2008 Heard learned counsel for the petitioner and learned counsel for the State. 2. This petition has been filed for quashing order dated 10.07.2003 (Annexure 10 to the writ petition ), by which the learned Commissioner-cum-Secretary, Department of Health, Government of Bihar, ( Respondent no. 1 ) rejected the representation of the petitioner and also for a direction to the authorities to fix the pension and gratuity of the petitioner and to pay it to him along with dues of salary in lieu of earned leave and also to pay monetary benefits on account of the petitioner’s promotion vide Government memo no. 393(4) dated 11.07.1998 with effect from 1990. 3. However, learned counsel for the respondents submits that all the retrial dues have been paid to the petitioner except 10% of pension and full gratuity and also monetary benefits on account of his said promotion as departmental proceeding and C.B.I. enquiry are going on against the petitioner. 4. Claim of the respondents is that there were some irregularities in the Medical Store Depot of Naugachhia within the district of Bhagalpur in the year 1990-1991 and the same was detected - 2 - on 14.06.1997 ( Annexure `D’ to the second supplementary counter affidavit of respondents no.1 and 3), but the petitioner in the meantime retired on 31.01.1997. 5. It is not in dispute that in last couple of months of the year 1990-1991 the petitioner was working as Incharge Medical Officer, Sub-Divisional Hospital, Naugachhia, but no purchase order was given by the petitioner, whereas, Dr. J. P. Jha was posted as Deputy Superintendent in the said Hospital for major portion of the year 1990-91 when the purchase order was given for that year and another person Dr. Sheo Nandan Prasad was posted as Deputy Superintendent in the said Hospital when the purchase order was given for the year 1992-1993. In paragraph 5 of the second supplementary counter affidavit, the said fact is admitted and it is stated that above named Dr. J.P.Jha and Dr. Sheo Nandan Prasad were granted full pension and retrial dues as they had also retired on 28.02.1991 and 21.10.1995 , respectively. 6. Since the retrial dues of the petitioner were not paid he filed C.W.J.C. No. 9176 of 2001 before this Court and the said writ petition was disposed of on 20.07.2001 with following observation :- “ This writ application is disposed of with a liberty to the petitioner to file a fresh representation along with a copy of this order before the Secretary, Department of Health, Government of Bihar, Patna, as well as the Director-in- Chief, Health Services, Government of Bihar, Patna, respondent no.2. If such a representation is filed then a final decision in accordance with law must be taken with regard to all the claims of the petitioner within a period of three - 3 - months from the date of filing of such representation and the dues to which the petitioner is found entitled should be paid to him within a further period of two months thereafter.” 7. In compliance of the said order of this Court, the petitioner filed a representation before the Secretary and the Director- in-Chief on 25.08.2001 (Annexures 9 series). The said representation was disposed of by the authority concerned after about two years i.e. on 10.07.2003 (Annexure 10 to the writ petition) holding that although no proceeding is pending in the department against the petitioner but C.B.I. enquiry is pending against him and hence the relief claimed by him cannot be granted at this stage. The said order has been challenged in the instant writ petition. 8. It transpires that some financial irregularities, known as Medical Store Depot Scam, regarding purchase of medicines in the nineties drew public concern all over the State and on the basis of order of this Court dated 26.04.2000 (Annexure B to the counter- affidavit) passed in C.W.J.C. No. 2652 of 1999 C.B.I. enquiry was initiated. In the said order, the C.B.I. was specifically directed to investigate the matter in the entire State and submit a report after three months on 27.07.2000, but it transpires that no such report was submitted and the said writ petition was dismissed on 23.04.2001 ( Annexure C to the counter affidavit). 9. From the facts and circumstances of the case as well as from the specific statements made on behalf of the respondents in their respective counter-affidavits, it is quite apparent that the enquiry - 4 - of the C.B.I. has not gone any further in the district of Bhagalpur as neither any first information report has been lodged nor any charge- sheet has been submitted against any person concerned with respect to the alleged scam in Naugachhia Sub-Division of Bhagalpur district including the petitioner although more than eight years have elapsed. 10. From the averments made by the respondents in their respective counter-affidavits, it is also quite apparent that a departmental proceeding is said to have been started against the petitioner in the year 2001 but it is very surprising that while passing order dated 10.07.2003 the authority concerned, who is none else than the Secretary-cum-Commissioner of the department , had no knowledge or information about the said proceeding as he has specifically stated in that order that no proceeding is pending against the petitioner. It is also quite apparent that no notice of the said proceeding has yet been sent to the petitioner although almost seven years have elapsed. 11. It is claimed by the authorities themselves that the alleged irregularities are of the year 1990-1991, whereas, the petitioner has retired on 31.01.1997, but the departmental proceeding was initiated much later on 11.08.2001. In this regard a Division Bench of this Court in its decision dated 21.05.2007 passed in L.P.A. No. 446 of 1998 and L.P.A. No. 759 of 2005 ( Bihar State Electricity Board vrs. Sharda Prasad Sinha & Ors.) specifically held that the proceeding has to be initiated against the person within four years - 5 - from the date of the occurrence and not within four years of the date of knowledge. By the said judgment Division Bench of this Court overruled the decision of a Single Judge Bench in case of Ashok Kumar Mishra vs. State of Bihar, reported in 2003(1) P.L.J.R. 172. The said order of the Division Bench passed in two Letters Patent Appeals has been affirmed by the Hon’ble Apex Court by order dated 09.05.2008 passed in a Petition for Special Leave to Appeal (Civil) No…………./2008 12. In view of the aforesaid principle of law, it is quite apparent that the period envisaged under Rule 43-B of the Bihar Pension Rules 1957 (hereinafter referred to as `the Rules’ for the sake of brevity ) has to be calculated from the date of occurrence and not from the date of knowledge. However, it may be stated in this connection that in the instant case the occurrence is of the year 1990- 1991, whereas, the date of knowledge as per Annexure 1 is 14.06.1997, whereas, the departmental proceeding was initiated on 11.08.2001( Annexure- B to the supplementary counter affidavit), when resolution along with charge-sheet was issued, but not sent to the petitioner nor any step is shown to have been taken by the authorities in that regard for more than six year. Hence, in any view of the matter, the departmental proceeding has been initiated much after lapse of the period envisaged in the said Rules. In that view of the matter, the petitioner has also challenged the said departmental proceeding initiated on 11.08.2001 by way of interlocutory application bearing I.A. No. 2080 of 2006. - 6 - 13. Considering the aforesaid admitted facts and circumstances of the case, the proceeding having been initiated after much beyond the period prescribed in law is clearly barred by the provision of Rule 43-B of the Rules and this Court has no option but to quash the same and accordingly the said departmental proceeding is hereby quashed. 14. Furthermore, no step appears to have been taken even in the C.B.I. enquiry as neither any charge-sheet has been submitted nor any first information report has been lodged against the petitioner although more than a decade has lapsed since the retirement of the petitioner and seven years have lapsed since the initiation of the enquiry in the entire State of Bihar as per the direction of this Court. Moreover, the other two persons, namely Dr. J. P. Jha and Dr. Sheo Nandan Prasad, who were posted as Deputy Superintendents of Sub- Divisional Hospital, Naugachhia (Bhagalpur ) during the relevant period have already been paid their full retrial dues. 15. It may also be noted in this regard that although the respondent authorities claimed that on 14.06.1997 ( Annexure- 1 to the writ petition and Annexure-D to the supplementary counter- affidavit ), they had full knowledge of the alleged MSD irregularities at Naugachhia of 1990- 91, but they themselves by order dated 11.07.1998 vide Govt. Memo No. 393(4) promoted the petitioner with effect from the year 1990. Although these facts are admitted by the respondents authorities but no valid explanation for the same could be given. Hence, it is quite apparent that the authorities are themselves - 7 - not convinced about the complicity of the petitioner in the said scam. 16. In the said circumstances, order of respondent no.1 dated 10.07.2003 (Annexure 10) is hereby quashed and the authorities concerned are directed to pay all the balance of arrears of retrial dues including full pension and gratuity on the basis of monetary benefits payable to the petitioner in view of his promotion to the super time scale granted by the Government vide memo no. 393(4) dated 11.07.1998 with effect from the year 1990 and till the date of his superannuation. 16. This writ petition is accordingly allowed with the aforesaid direction. MPS/ ( S. N. Hussain, J. )