IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.597 of 2007. Ram Naresh Pd.Singh, son of late Klesh Haran Nath singh, resident of village- Pakaria, P.S. Nawada, Muffasil, Nawada. …..petitioner. Versus 1.The State Of Bihar, through the Secretary-cum-Commissioner, Department of Health, Govt., of Bihar. 2.Director in Chief, New Secretariat, Patna, Health Services, Bihar. 3.The Civil Surgeon-Cum-Chief Medical Officer, Nawada, District-Nawada. 4.The Secretary, Finance, New Secretariat, Govt. of Bihar, Patna. 5.The Accountant General, Audit and Accounts, Govt. of Bihar, Patna …..Respondents. For the petitioner: Mr. Sanjay Kumar, Adv. For the respondents:Mr. Shashi Bhushan Kumar, S.C 7. ----------------- 07/ 01.08.2011 Heard counsel for the parties. Pursuant to the previous order dated 11.07.2011 Dr. Surendra Prasad, Director in Chief and Dr. Sudhir Kumar Mahto, are present in person. Learned counsel for the State by filing supplementary counter affidavit has taken a plea that the records relating to suspension and departmental proceeding of the petitioner is missing along with his service- book and other corrected records both in the 2 Directorate as also in the Office of the Civil Surgeon, Nawada. He has also informed that the First Information Report which had already been lodged by the concerned Controlling Officer, at both places i.e. at Patna and Nawada.The concerned Superintendent of Police, is hereby directed to ensure that the investigation is taken up promptly and the real culprit(s) is brought to book at least by completing the investigation against such person(s) and file chargesheet, if any, within a period of six months from today. There would be no much difficulty in understanding the case of the petitioner, inasmuch as, in the last order this Court had already made a detailed observation as with regard to his grievance reading as follows:- There is a piquant situation in this case. As per the records produced by the petitioner who he was suspended on 25.08.1982 under the orders of the Director in chief of the Health Services. The petitioner thereafter is said to have continued under suspension till the date of his retirement i.e. 31.01.2000. It is also claimed by the petitioner that he was paid his subsistence allowance throughout the period of suspension but as he was neither subjected to any departmental proceeding nor visited with any order of punishment he would be entitled for payment of full salary for the period of suspension in 3 addition to retirement benefit. In the considered opinion of this Court even though the petitioner has taken seven years to approach this Court either claiming for the rest of salary beyond the subsistence allowance for the period from 25.08.1982 to 31.01.2000 or the post retirement benefit treating him to be continuing in service as on 31.01.2000, the Respondents owe a dutyto explain the facts of the case of the petitioner. This Court on the last occasion had directed the Civil Surgeon, Nawada to file an affidavit as with regard to the alleged claim of the petitioner of continuing in service under suspension for a period of 18 years and also disclose reasons for non payment of his post retirement benefit. The Civil Surgeon, Nawada today has taken a stand through his counsel Mr. Shashi Bhushan Kumar, S.C No. 7 that all the records relating to the petitioner in the Office of Civil Surgeon, Nawada are missing. He would also inform this Court that a First Information Report has been lodged recently as with regard to both the theft/loss of the record as also against the persons who had made the payment of subsistence allowance to the petitioner. He however, is not in a position to say that the actual period for which the petitioner had been paid such subsistence allowance. For this purpose he seeks time to enable the Civil Surgeon, Nawada to make inquiry from the treasury in order to give his firm reply as with regard to the payment of subsistence allowance to the petitioner. Learned counsel for the petitioner, on the other hand is quite emphatic that the petitioner had continued in service till the date of his superannuation on 31.01.2000, and he has drawn his subsistence allowance for the entire period of suspension. Counsel for the petitioner is prepared 4 to support this aspect with records showing payment of subsistence allowance to the petitioner. He further submits that the petitioner though has approached this Court after seven years of his superannuation but then he was always representing his case before the authorities for the payment of his balance salary for the period of suspension and also for post retirement benefit. Let the petitioner file a clear affidavit enclosing the documents to substantiate his aforementioned claim in a period of two weeks from today. At the same time as the order of suspension was passed by the Director in chief on 25.08.1982 vide Annexure-3 to the writ application , this court would direct the Director in chief of Health Department to file a clear affidavit as to what ultimately was donw on the basis of the aforementioned suspension of the petitioner. If he also finds that he cannot say anything as the connected records of his office are missing he would be under obligation to explain as to what action was taken by him with regard to the tracing of the aforementioned records. List this case on 1.8.2011 by which time both sides will file their respective affidavits as indicated above. It is however, made clear that on that day both the Director in chief and the Civil Surgeon, Nawada, shall personally remain present. Let a copy of this order be given to Mr. Shashi Bhushan Kumar, S.C.-7 for its strict compliance. As noted above the records are still missing but then one thing has been conveyed today by the Civil Surgeon, Nawada in presence of Director in Chief, Health 5 Services that the petitioner was paid his subsistence allowance till the month of January 2000. That would mean that the petitioner had continued in service till the date he could have superannuated under normal circumstances i.e. 31.01.2000. The petitioner however, was facing very serious charges in the departmental proceeding as would be evidenced from the memo of charge contained in Annexure-1 reading as follows:- 6 7 It is true that this order of suspension dated 05.12.1979 was revoked on 08.07.1981 but then the departmental proceeding initiated against him had still not been concluded. The petitioner in fact was again placed under suspension, this time by the order of the Directorate dated 25.08.1982, relevant portion whereof reads as follows:- The charge against the petitioner in the order of suspension issued by the Directorate again mentions of defalcation of 8 Government revenue and therefore, such charges and the resultant departmental proceeding is capable of being continued even after the retirement, inasmuch as, there would be no need to convert the pending proceeding into the proceeding under Rule 43(b) of the Bihar Pension Rules as has been held by the Full Bench of this Court in the case of Shambhu Saran vs The State of Bihar and Ors, reported in 2000(1) PLJR 665. As a matter of fact, Rule 43(b) of Bihar Pension Rules by itself in the case provides that the pending proceeding arising out of grave misconduct or negligence could be continued even after superannuation. While this Court is not aware as to the issue arising out of and the import of missing of the records, being the subject matter of charges against the petitioner both in the Directorate and in the Office of Civil Surgeon but then the beneficiary of such missing of records is none else but the petitioner, who could not be dealt even for serious charge of misappropriation/ embezzlement of Government fund. It is true 9 that the petitioner had suffered a lot, inasmuch as, he had remained suspended for a period of 18 years and had to settle with only by getting his subsistence allowance but then the manner in which things have surfaced, the interest of justice would require that the petitioner should get a clean chit as with regard to the charges pending against him on the date of his retirement. Considering all these aspects this court would direct that the charges against the petitioner for which departmental proceeding was initiated either by the Civil Surgeon or by the Directorate should be inquired into by a Senior Deputy Director of Health Department who would submit his inquiry report to the Director in Chief within a period of three months from the date of his being appointed as Inquiry Officer. It goes without saying that if the petitioner does not extend cooperation, in course of departmental proceeding, it would be open to the Inquiry Officer to conclude the departmental proceeding ex parte. Such 10 departmental proceeding would be conducted on a day to day basis and the petitioner’s presence will be secured either at Patna or at Nawada, whereafter the Inquiry is conducted by him. It is made clear that if the petitioner’s inquiry is held at Patna, he will be entitled to reimbursement of expenses for his journey to and fro from his place of residence. Such amount shall be paid to the petitioner by the Office of Director in Chief on verification and production of the Bus/Rail ticket. As has been noted above the petitioner has been paid subsistence allowance for the period from 25.08.1982 to 31.01.2000 in which he had remained under suspension. Thereafter he has neither been paid remaining salary of the period of suspension nor even the retirement benefits has been provided to him till date. The petitioner is facing serious charges of defalcation of Government revenue and therefore, when this Court has directed for completion of the departmental proceeding against him within a time frame of six 11 months, he would be deemed to be a retired Government servant who was under suspension and facing departmental proceeding on the date of his retirement. In view of the State Government circular dated 31.07.2000, Such persons are entitled to receive only 90 per cent of the provisional pension and therefore, the remaining retirement benefits can be paid only after the conclusion of the departmental proceeding and the result thereof. In that view of the matter, this court would direct the Civil Surgeon of Nawada district to pay both the arrears and current amount of provisional pension of the petitioner @ 90 per cent of his last emolument paid by way of subsistence allowance. Such amount must be paid to the petitioner within a period of one month from the dated of receipt/production of a copy of this order and such provisional pension thereafter as fixed by the Office of Civil Surgeon shall be continued to be paid to him till the completion of the departmental proceeding against him. The other financial 12 benefits however would remain dependant on the outcome of the departmental proceeding and the final order passed therein. With the aforementioned observation and direction, this application is disposed of. Personal appearance of Dr. Surendra Prasad, Director in Chief and Dr. Sudhir Kumar Mahto, Civil Surgeon, Nawada is dispensed with. Let a copy of this order be given to Mr. Shashi Bhushan, S.C no. 7. Ranjan (Mihir Kumar Jha, J)