IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6383 of 2007 DILEEP NARAYAN CHOUDHARY, S/O LATE RAM LOBHIT CHOUDHARY, R/O VILLAGE AND P.O- SHAHPUR, P.S- TISIAUTTA, DISTRICT- VAISHALI. ……….. PETITONER. Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER- CUM-SECRETARY, HEALTH AND FAMILY WELFARE, BIHAR, PATNA. 2. DIRECTOR-IN-CHIEF, HEALTH SERVICES, BIHAR, PATNA. 3. REGIONAL DY. DIRECTOR HEALTH SERVICES, DARBHANGA DIVISION DARBHANGA. 4. CIVIL SURGEON-CUM-C.M.O SAMASTIPUR. 5. CIVIL SURGEON-CUM-C.M.O. VAISHALI, HAJIPUR. 6. DISTRICT MAGISTRATE, HAJIPUR. 7. TREASURY OFFICER, VAISHALI, HAJIPUR. ………RESPONDENTS. ----------- 3 28.10.2010 Having heard counsel for the petitioner and counsel for the State, this court, after recording its displeasure for not filing the counter affidavit despite its order dated 23.09.2010 in this very writ application which was filed in fact on 15.05.2007, would proceed to consider the following prayer of the petitioner:- “1. That this is an application for issuance of a writ of certiorari for quashing the Memo no 4/MSD/23/04/06 dated 02.02.07 of the Director-in-chief Health Services Bihar with which Resolution no. 1215(4) dt 11.8.03 has been converted into the proceeding under Section 43(b) of Bihar Pension Rules 1950 and the Regional Deputy Director of Health Services Darbhanga has been ordered to complete the enquiry and submit the report within 3 months. It is further prayed to quash the charges contained in 2 memo no. 4/MSD-23/2006 1215(4) H dt 11.8.03 levelled against the petitioner with resolution annexing memo of charges relating to 18.12.90 and 27.12.90 as per details of charges dt 10.2.2003 as they are more than 4 years old from the date the proceeding under Rule 43(b) was initiated on 2.02.07 about 4 years of superannuation and 17 years of incident”. From the pleading on record it is very much clear that the petitioner, holding the post of Bill Clerk, was subjected to a departmental enquiry way back in the year 1999 while vide memo no. 390, dated 31.08.2001 as with regard to the certain allegation of conniving in the purchase of medicine from M.S.D. Calcutta. The petitioner in fact had also filed his reply on 25.09.2001 and when the same was not found to be satisfactory, formal charge sheet was drawn against the petitioner on 10.04.2003 as contained in Annexure-3. In that view of the matter, it would be difficult for this court to quash the memo of charge nor even the departmental proceeding can be quashed on the alleged ground of the proceeding having been drawn after the date of retirement of the petitioner. Law in this regard settled by the Full Bench Judgment of this court in the case of Shambhu Saran Vs. The State of Bihar and Ors. reported in 2000 (1) PLJR 665. As the petitioner was placed under suspension and 3 was already subjected to departmental proceeding prior to his retirement and therefore the continuing proceeding against him in terms of rule 43-B shall require no further order of conversion as has been laid down by the Full Bench Judgment in the case of Shambhu Saran (supra). Counsel for the petitioner at this stage submits that the document enclosed in the writ application as contained in Annexure-3 containing the date of memo of charge dated 10.04.2003 needs to be verified. In the opinion of this court it was for the petitioner to produce more legible copy of the aforesaid document if he wanted to take any other date into consideration. The respondents also having not filed their counter affidavit have not explained the case of the petitioner. In any event when this Court has found that the issue with regard to allegation against the petitioner and made subject matter of inquiry was already continuing even on 31.08.2001 to which the petitioner has filed his reply on 25.09.2001 vide Annexure-3A of the writ application, it would be difficult to record that no enquiry was initiated against the petitioner prior to his retirement on 31.7.2003. The next grievance of the petitioner however, 4 seems to be correct inasmuch as even if a proceeding was drawn against the petitioner in the year-2001 and petitioner had retired with effect from 01.08.2003, such proceeding must come to an end at the early date. Therefore, if the petitioner would co-operate in the pending proceeding against him, the same must be concluded within a period of six months from the date of receipt/production of a copy of this order. It is made clear that even if the petitioner does not co- operate the respondents would be at liberty to conclude the proceeding ex parte and pass the final order. With the aforementioned observation and direction this application is disposed of. Ranjan/Anand Kr. (Mihir Kumar Jha, J.)