IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9116 of 2001 ---------- In the matter of an application under Article 226 of the Constitution of India. ---------- Dr. Kuldeep Prasad, son of late Dilip Prasad, Resident of Mohalla- Surkikal Tilkamanjhi, P.O.- khanjarpur, P.S.-Barai, District-Bhagalpur. ………………Petitioner. Versus 1.The State Of Bihar. 2.The Additional Secretary (Awar Sachiv), Health, Medical Education and Family Welfare Department, State of Bihar, Patna. 3.The Deputy Secretary (Up-Sachiv), Health Medical Education and Family Welfare Department, State of Bihar, Patna. ………………Respondents. ----------- For the petitioner : Mr. Tej Bahadur Singh, Sr. Adv., Mr. Krishna Mohan, Adv., Mr. Praveen Kumar, Adv., Mr. Gyan Shankar, Adv. and Mr. Brajesh Kumar, Adv. For the State : Mr. Amrendra Kumar, A.C. to G.P.-XI. P R E S E N T THE HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: Petitioner has filed this writ application for quashing of Memo No. 954 dated 16.6.1997 (Annexure-1), whereby, as per liberty granted by this Court in his earlier writ application, final orders have been passed again, approving the earlier order of punishment passed against the petitioner, and for quashing of the letter no. 317 dated 10.5.2001, whereby, rejecting his representation, petitioner has been directed to refund the amount of Rs.1,19,801/-, wrongly drawn as increment. Petitioner, while posted as Deputy - 2 - Superintendent of Sadar Hospital, Katihar, was served with show cause notice, vide letter no. 2599 dated 19.7.1990 (Annexure-9 with the supplementary affidavit), to show cause, within one week from the date of receipt of notice, as to why necessary action may not be taken against him due to lapses on his part in conduct of his duties in the capacity of the Deputy Superintendent of the Sadar Hospital. It was disclosed in the notice that, during the inspection, it was found that, out of 338 bottles of saline water, 30 bottles were found fungus infected. There was provision and procedure for destruction of expired, and otherwise useless, medicines, but since 2-3 years no action had been taken in this regard. Hence, it appeared that bottles of saline water had been deliberately retained since long, due to which fungus had developed in the same which could endanger the life of the patients. It was also disclosed in the notice that, during the inspection, out of 338 saline water bottles which were to be available in the Hospital, 68 bottles were found short. Besides this, on 12.7.1990, 254 bottles of dextrose saline water and 266 bottles of normal saline water had been received in the store of the Hospital, but no entry was found made in the store register. Therefore, it was alleged in the notice that the petitioner had been guilty of carelessness and irregularity in upkeep and storage of medicines which could cause danger to the life of the patients. It was also mentioned that, while entering about the medicines in the store register, the name - 3 - and address of the manufacturer and batch number of the medicines were also found not mentioned due to which black-marketing and misuse of the medicines could be possible. As asked for, petitioner filed his reply on 2.8.1990 (Annexure-10 to the supplementary affidavit). In his reply petitioner dealt with, in detail, the findings arrived at during the inspection, as mentioned in the show cause notice. In his reply, petitioner disclosed that the fungus infected bottles had been segregated and kept separately and, therefore, there was no risk of their use and supply to the patients. He also stated that since the 68 bottles which was fungus infected had been kept in the store room separately, the same could not be counted in stock at the time of inspection and, therefore, the impression got created about shortage of 68 bottles. Petitioner also disclosed that the bottles of dextrose saline water and normal saline water had been received on 12.7.1990 only which were shown to the Deputy Development Commissioner on 16.7.1990 during the inspection and same was entered into stock register. With regard to entry of the name and address of the manufacturer and batch number of the medicines, it was stated that necessary instructions have been issued to the store-keeper. It appears that this show cause did not satisfy the respondents and, therefore, petitioner was suspended with effect from 19.9.1990. Proceeding was initiated, charges were framed and Enquiry Officer was - 4 - appointed. The Enquiry Officer, after holding enquiry, submitted his report, vide his letter dated 26.7.1991 (Annexure-3). In his report the Enquiry Officer found that the allegation of shortage of bottles was not established and the fungus infected bottles had been kept separately and entry had been made in the store register. He also found that there were no lapses in the matter of distribution of medicines. In respect of charge no. 2, the Enquiry Officer found that there were no expired medicines in the store and the bottles of saline water which were fungus infected and unfit for use had been kept separately. The expiry date of those bottles had not crossed and, therefore, without permission of the Drug Inspector the same could not be destroyed. The Enquiry Officer also found that petitioner had joined as Deputy Superintendent only on 19.8.1989 and the process for destruction of unfit bottles of saline water should have been started by the predecessor of the petitioner himself and, therefore, petitioner can not be saddled with the responsibility of having not initiated steps for destruction of the said bottles. He also found that mostly medicines were received from the store of the Chief Medical Officer or Additional Chief Medical Officer and, in respect of the medicines which were procured directly, batch number and name of manufacturer, date of manufacturing and expiry date were entered in the store register. In the background of these findings the Enquiry Officer recommended that petitioner can be absolved of the charges framed - 5 - against him. The report of Enquiry Officer was considered by the Disciplinary Authority and, by a non-speaking order dated 4.11.1992 (Annexure-4), the proceeding was closed and suspension of the petitioner was revoked with punishment of censure and withholding of one increment with cumulative effect. It was also held that the petitioner will not be entitled for any other payment for the suspension period except subsistence allowance. Petitioner challenged this order of punishment before this Court in CWJC No. 12349 of 1993. This Court found that while disagreeing with the enquiry report and issuing punishment order, no prior notice was issued to the petitioner, recording reasons for proposed disagreement of the Disciplinary Authority with the findings of the Enquiry Officer, and giving an opportunity to the petitioner to show cause in the matter. Therefore, by order dated 6.3.1995 (Annexure- 5) this Court, quashed the impugned order of punishment as aforesaid, but left it open for the Disciplinary Authority to pass an appropriate reasoned order afresh after giving an opportunity to the petitioner to file show cause against proposed punishment. However, during the pendency of the writ application and before it was finally disposed of, petitioner superannuated with effect from 20.10.1994 while functioning as Civil Surgeon, Katihar. In view of the liberty granted by this Court, a fresh show cause notice was issued to the petitioner - 6 - by letter no. 121 dated 8.11.1995. In this show cause, it was specifically stated that Government was not agreeable with the findings of the Enquiry Officer report on two counts, namely, (i) There was a committee constituted under Chairmanship of Deputy Director, Health services which had already made recommendations for destruction of expired medicines. Inspite of the same, petitioner had not drawn the attention of Superintendent, Sadar Hospital, Katihar in respect of the same and, therefore, he could not be absolved of the charges of non-destruction of expired medicines and (ii) if the petitioner had ensured proper upkeep and maintenance of store register and would have held physical verification, the name of the manufacturer, batch number and date of expiry of the medicines would have been mentioned in the store register, and the medicines could have been used before their expiry. Therefore, there was lapses on the part of the petitioner in performance of his duties. In the circumstances, petitioner was asked to show cause within 15 days as to why in the proceeding initiated against him through resolution no. 1309 dated 9.11.1990 (Annexure-6) he should not be held guilty on account of proved charges. Petitioner filed his reply through letter dated 17.1.1996 (Annexure-7). In his reply petitioner specifically mentioned that the inspecting authority, namely, Deputy Development Commissioner, Katihar, and the Regional Deputy Director of Health, Koshi Division, who was Enquiry Officer, have not mentioned - 7 - at all about any expired medicines. It was also contended by the petitioner in his reply that no expired medicine was found during the inspection. Therefore, he requested the Disciplinary Authority to furnish him a list of expired medicines found in the store during inspection for an appropriate explanation about the same. It was also contended that there was always shortage of medicines in the Sadar Hospital and, therefore, there was no occasion for existence of any expiry medicine in the store. It was further stated that the store register was regularly checked and certified which was found by the Enquiry Officer also. Therefore, petitioner requested to exonerate him from all charges or, if any concrete proof of any lapses by him was available, he should be given an opportunity to give his explanation in that respect. After receipt of the said show cause reply from petitioner, the Disciplinary Authority passed fresh orders, vide notification no. 954 dated 16.6.1997 (Annexure-1), in which it was held that, after consideration of the show cause of the petitioner, Government had arrived at the conclusion that there was no need for any modification in the resolution no. 890 dated 4.1.1992 (Annexure-4) awarding punishment to the petitioner. In the said notification (Annexure-1) it was observed that, even if the stand of the petitioner, that there were no expired medicines in the store, is accepted, he could not be absolved of lapses on his part in not taking any step for destruction of fungus infected medicines. - 8 - This shows that for 2-3 years there was no physical verification by the petitioner of the store in the capacity of Deputy Superintendent which made it possible for the damaged medicines to be supplied to the patients. Therefore, it was held that the punishment order as contained in resolution no.890 dated 4.11.1992 (Annexure-4) shall continue to be in force. It was also ordered that any payment received by the petitioner on account of subsistence allowance or increment during the period shall be adjusted from the retiral benefits of the petitioner. Petitioner was therefore asked to deposit excess amount drawn by him. Petitioner filed a detailed representation (Annexure- 8) for re-consideration of the matter and for exonerating him from all charges, which was also rejected by the respondents and by letter no. 317 dated 10.5.2002 (Annexure-2) he was directed to deposit an excess amount of Rs.1,19,801/- in the treasury through challan, failing which, State Government would take steps for recovery of the said amount from his movable/immovable properties. Petitioner, aggrieved by the same, filed this writ application challenging the said two orders as contained in Annexures-1 and 2. Learned counsel for the petitioner submitted that, as the petitioner superannuated during the pendency of the earlier writ application, any proceeding could be continued and fresh final orders could be passed against the petitioner, even as per the liberty granted by this Court, only in terms of - 9 - Rule 43(b) of the Bihar Pension Rules and not otherwise. He further submitted that since charges levelled against the petitioner, even if accepted, do not amount to grave misconduct, or to have caused pecuniary loss to the Government by misconduct or negligence, no punishment order could be passed against the petitioner even in exercise of the powers under Rule 43(b) of the Bihar Pension Rules, by ordering for withholding or withdrawing any part of the pension of the petitioner or by ordering any recovery from his pension. He further submitted that, since the Enquiry Officer did not find any charge proved against the petitioner, it was not open for the Disciplinary Authority to travel beyond the charges, and beyond the findings of the Enquiry Officer, and hold him guilty for the same. He further submitted that, in the show cause issued to the petitioner by letter no. 121 dated 8.11.1995, in compliance of the orders of this Court, the Disciplinary Authority had indicated his points of difference, in respect of findings of the Enquiry Officer, on two counts, namely, in respect of failure on the part of the petitioner to take steps for destruction of the expired medicines and failure on his part to ensure proper upkeep and maintenance of store register and hold physical verification of store to rule out any risk of use of expired medicines. He submitted that the impugned order of the Disciplinary Authority shows that the explanation of the petitioner in his reply, in respect of these two points of - 10 - difference were not found wrong by the Disciplinary Authority, and were not rejected. In fact, the order shows that the Disciplinary Authority accepted the explanation of the petitioner that there were no expired medicines in the store. However, he has held the petitioner guilty of slackness in performance of his duties in respect of failure on his part to take steps for destruction of fungus infected medicines, which proves that he had not inspected the store for 2-3 years rendering the possibility of distribution of contaminated medicines among patients. Thus, he submits that the fact of existence of expired medicines in the store was not found proved, but the allegation of failure of the petitioner to take steps for destruction of fungus infected medicines was found established. He submits that apparently this allegation does not find mentioned in the 2nd show cause as contained in Annexure-6. Hence, the petitioner was not given any opportunity by the Disciplinary Authority to file his explanation in respect of the same before the said allegation against the petitioner was found established and, therefore, there was gross violation of Principles of Natural Justice. Learned counsel for the petitioner lastly submitted that, by reiterating the earlier order dated 4.11.1992, by the impugned order dated 16.6.1997, the respondents have, in effect, imposed punishment on the petitioner with retrospective effect and have revived an order passed under Rule 55 of the Civil Services - 11 - (Classification, control and Appeal) Rules, 1930 after the superannuation of the petitioner. Consequently, by Annexure-2, they have sought to recover an amount paid to the petitioner towards increments etc. in consequence to the quashing of the earlier order dated 4.11.1992 by this Court. Therefore, he submitted that, as the petitioner had superannuated during the pendency of the earlier writ application, the impugned order (Anneuxres-1 and 2) were without jurisdiction as they were not passed by the respondents under the powers as prescribed under Rule 43(b) of the Pension Rules and order passed under Rule 55 of the said Rule of 1930 was sought to be revived which they could not do. Respondents have filed counter affidavit in the case. It is contended in the counter affidavit that the charges against the petitioner were framed for his conduct which could affect human life and, there were sufficient materials on record to establish the charges. Therefore, the Disciplinary Authority did not agree with the report of the Enquiry Officer and passed order of punishment as Annexrue-4. It is also contended that, since no show cause was issued to the petitioner by the Disciplinary Authority earlier, on the points of difference with the findings of the Enquiry Officer, this Court allowed the earlier writ application of the petitioner on this technical ground. Therefore, the Disciplinary Authority issued Anneuxre-6, disclosing the grounds on which he proposed to differ with the findings of the Enquiry - 12 - Officer, and gave an opportunity to the petitioner to file his explanation in that respect. After the receipt of the explanation the same was considered by the Disciplinary Authority and it was found unsatisfactory and hence, the Disciplinary Authority held that there was no need to modify the punishment order passed against the petitioner earlier and, by Annexure-1, reiterated the punishment. Learned counsel for the respondents, in the backdrop of the facts of the case, submitted that no procedural irregularity was committed by the respondents in passing the impugned order as the petitioner was given full opportunity in terms of the earlier orders of this Court before the impugned order (Annexure-1) was passed. As the earlier order of punishment was approved and reiterated, the respondents were justified in passing the consequential orders of recovery of the amount paid to the petitioner during this period. As the charge-sheet served on the petitioner was not available on the record, this Court asked the learned counsel for the parties to produce the same on record through further affidavit. However, it was submitted by counsels for the parties that the copy of the original charge-sheet was not available in their records. Instead, learned counsel for the petitioner filed a supplementary affidavit annexing a copy of the first show cause dated 19.7.1990 issued to the petitioner as Annexure-9 by the Collector, and its reply to the same dated 2.10.1990 as Annexure-10. - 13 - Since, either of the parties were unable to produce the original charge-sheet issued to the petitioner, this Court made an endeavour to find out the exact charges framed against the petitioner in the proceeding. For this purpose, this Court referred to the earliest document available on record for some help, which was Annexure-9, a notice issued to the petitioner by the Collector in respect of the lapses found during the inspection of the store by the Deputy Development Commissioner. In the said document it was mentioned that during inspection, out of 338 saline bottles, 30 bottles were found fungus infected. It appears that steps for destruction of expired or unfit medicines were not taken in the last 2-3 years. The second lapse which was found in the inspection was shortage of 68 bottles of dextrose saline water and it was also found that the 254 bottles of dextrose saline water and 268 bottles of normal saline water which was received in the store were not entered in store register. It was also mentioned in the notice that while entering medicines in the store register the name of manufacturer and batch number were not mentioned. In respect of these alleged lapses, found during inspection, petitioner filed his reply (Annexure-10). Reply of petitioner was not found satisfactory and, therefore, inquiry was initiated against him and charges were framed and he was given liberty to file his further reply. After considering the reply, the Enquiry Officer submitted his report, - 14 - vide Annexure-3, in which he did not find the charges proved against petitioner and, without show cause, punishment was awarded to him, vide Annexure-4, which was set aside by this Court on the ground of violation of Principles of Natural Justice, vide Annexure-5. Thereafter, as liberty granted by this Court, a second show cause was issued to petitioner by the Disciplinary Authority indicating his proposed points of difference vide Annexure-6. As also noticed above, from Annexure-6 it is apparent that the Disciplinary Authority did not find the report of the Enquiry Officer satisfactory on only two counts. It clearly shows that the charge now subsisting against the petitioner was of not having taken steps for destruction of expired medicines. The petitioner‟s reply, that without permission of the Drug Controller he could not get the expired medicines destroyed, was not found acceptable to the Disciplinary Authority in the light of the fact that there was provision for destruction of expired medicines on the recommendation of a committee headed by the Regional Deputy Director, Health and the petitioner had not drawn the attention of the Superintendent of Sadar Hospital, Katihar, in respect of the same. Therefore, he could not be exonerated from this charge. The second charge, as subsisting on that date, mentioned in the show cause, was that the petitioner had not maintained the store register properly. In this respect it was mentioned in Annexure-6 that, had the petitioner inspected the - 15 - store from time to time and would have conducted physical verification of the medicines and would have got the name of manufacturer, the batch number and date of expiry of the medicines mentioned in the stock register, the expired medicines would have been used before their expiry. This was not done by the petitioner and, therefore, petitioner could not be exonerated from this responsibility. It is clear from Annexure-6, the second show cause issued to the petitioner, in terms of the orders of this Court, that there was absolutely no mention of availability of fungus infected medicines and their non-destruction. Therefore, it is clear that, in this respect the findings of the Enquiry Officer was found acceptable by the Disciplinary Authority and, therefore, so far as this issue is concerned it stood closed. However, Annexure-1 shows that the explanation of the petitioner with regard to the issues raised in Anneuxre-6 were not found acceptable by the Disciplinary Authority and the petitioner was held responsible for not making the efforts for destruction of fungus infected medicines and, therefore, punishment awarded against him by the order dated 4.11.1992 (Annexure-4) was found to be correct and was restored. Clearly there was no whisper in Annexure- 6 about the charge against petitioner of not having taken any step for destruction of fungus infected medicines. Therefore, no punishment could be passed against the petitioner on that account without giving - 16 - him an opportunity to file show cause in that respect. Obviously, if the second show cause notice talked only about „expired medicines‟ he could not be punished for not taking steps for destruction of „fungus infected medicines‟ without any specific notice to the petitioner in this respect. In the impugned order of punishment a presumption has been made that failure to take steps for destruction of fungus infected medicines showed that for 2-3 years there was no physical verification of store by the petitioner in the capacity of Deputy Superintendent. A total non-application of mind by the Disciplinary Authority is writ large here, inasmuch as, petitioner joined as Deputy Superintendent on 19.8.1989 and the inspection was held on 16.7.1990 i.e. within one year. How the petitioner could be held responsible for not holding verification in the past 2-3 years, is only within the competence of Disciplinary Authority to explain. It is not disputed that petitioner superannuated during the pendency of his earlier writ application. With his superannuation, relationship of master and servant between petitioner and respondents stood severed. Therefore, it was not open to the respondents to take steps against the petitioner in the proceeding or revive an order passed against him in terms of the said Civil Services (Classification, Control and Appeal) Rules, 1930. As the punishment order passed earlier was quashed by this Court, with liberty to the respondents to issue a fresh notice to - 17 - the petitioner and pass fresh orders, the proceeding may have stood revived. But, as per the law laid by this Court in a catena of decisions, upon superannuation of the petitioner, the said proceeding was to be treated as converted into one under Rule 43(b) of the Bihar Pension Rules. Therefore, respondents were constrained to take further steps against the petitioner only in terms of said Rule 43(b), and not otherwise. Hence, in terms of the limitations laid down under the said Rule 43(b), the respondents were at liberty to pass any further punishment order against the petitioner only if the petitioner was found guilty of any “grave misconduct” or was found “to