IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.12295 OF 2003 ISHWAR CHANDRA JHA, SON OF PANDIT SHILA NATH JHA, RESIDENT OF TOWN AND POLICE STATION HAJIPUR, DISTRICT VAISHALI …PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE SECRETARY, DEPARTMENT OF HEALTH , FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA 3. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, GOVERNMENT OF BIHAR, PATNA 4. THE REGIONAL DEPUTY DIRECTOR OF HEALTH SERVICES, TIRHUT DIVISION, MUZAFFARPUR 5. THE CIVIL SURGEON, VAISHALI AT HAJIPUR ………………………………………………………………………………RESPONDENTS ********** 8 11/01/2011 The petitioner has filed this writ application challenging the initiation of the departmental proceeding against him on the ground that it is against the provisions of Rule 43 (b) of the Bihar Pension Rules, inasmuch as the petitioner retired on 31.03.1994 and the proceeding has been initiated on 10.06.2003 when charge sheet was served on the petitioner. The facts are that the petitioner while he was in service was suspended vide order dated 09.07.1990 for the alleged allegation that he had not maintained the Cash Register or the Stock Register while working as Clerk –cum- Store Keeper in the Health Centre while he was posted at Muzaffarpur. The petitioner’s suspension was revoked on 30.03.1994, just one day prior to his retirement on 31.03.1994. The submission made on behalf of the 2 petitioner is that the provisions of Rule 43 (b) of the Bihar Pension Rules would not apply in his case as no sanction has been taken by the State Government for initiation of the proceeding and that a proceeding has been initiated for an offence which took place four years prior to his retirement. It has been submitted that the charges as explained in Annexure-8 would indicate that the petitioner had not kept the accounts of stock and was responsible for forwarding the requisition of medicines beyond the sanctioned limit from the M.S.D., Kolkata. It also transpires that after his retirement, the petitioner filed CWJC No. 1579 of 1994 for payment of his retiral dues. This Court while considering the writ application directed that the Director-in-chief, Health Services should examine the grievances of the petitioner and make payment of all his legal dues. It has also been observed that during his service period, no departmental proceeding was actually initiated against the petitioner. On the basis of the aforesaid facts, the petitioner claims the initiation of the departmental proceeding is absolutely unwarranted. On behalf of the State, it has been argued that the matter with respect to purchase of medicines from M.S.D., Kolkata was a big scam involving several 3 hundred crores of rupees, which was under the enquiry of the Vigilance Department. It was only after sufficient materials were collected when the State had taken a decision to initiate proceedings against those persons who were said to be responsible or involved in the said transaction with M.S.D., Kolkata and, therefore, delay in the initiation of departmental proceeding is not because the State was not applying its mind to the problem at hand, but was because of the fact that it was after proper enquiry to the allegations, the State could take any action against its employees. It would be relevant to quote the provisions of rule 43 (b) (ii) and the explanation thereto of the Bihar Pension Rules, which reads as follows:- “43. (b) The State Government ………….. after retirement: Provided that – (a) ……………………………; (i) …………………………….; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) ………………………….; (b) …………………………; and (c) ……………………………. 4 Explanation.- For the purposes of the rule- (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted :- (i) in the case of criminal proceedings, on the date on which a complainant is made or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complainant is presented, or as the case may be, an application is made to a civil Court.” Referring to Section 43 (b) of the Bihar Pension Rules, the explanation thereto, would clearly indicate that for the purposes of initiation of a departmental proceeding, it would be deemed that it has been instituted (a) on the date on which the charges are framed: (b) if the Government servant has been placed under suspension from an earlier date on such date. Obviously, in this case the petitioner was placed under suspension from the year 1990 and he remained under suspension till one day prior to his retirement. It is argued on behalf of the petitioner that the revocation of 5 the suspension would automatically take the pinch out of the provisions of explanation to Rule 43 (b) of the Bihar Pension Rules. It is also argued that the departmental proceeding under Rule 43 (b) has been initiated without taking the consent of the State Government. Reference may be made to the case of Dr. A. A. Mallick and Another vs. State of Bihar and Others [2007 (3) PLJR 321], wherein this Court has dealt with both the aforesaid arguments of the petitioner. It has been held that revocation of suspension just before the superannuation is an incidence which takes place during service when master and servant relationship subsists, suspension automatically revokes on superannuation. It obviously means that the intention of the Government is not to absolve the incumbent from the allegations leveled against him, rather the suspension is revoked due to the operation of law. It has further been held in the aforesaid case that once an employee or an incumbent who is facing the departmental proceeding is put under suspension, it would not require any further sanction of the State Government to initiate a departmental proceeding. The question whether a departmental proceeding could have been initiated at all considering that the charges framed have been done so, after a delay, 6 for an incidence which occurred more than four years prior to the superannuation of an incumbent? For this proposition, I would like to rely on the judgment of this Court in the case of Tripurari Sharan Singh vs. The State of Bihar & Others [2006 (2) PLJR11]. This Court has considered the argument raised on behalf of the petitioner and held that there cannot be any bar or limitation to the departmental proceeding, if the Government servant had been placed under suspension from an earlier date to his retirement. The language of Rule 43 (b) is quite clear on this aspect of the matter. The provisions of Rule 43 (b) (ii) state that the departmental proceeding shall be deemed to be instituted when the charges are framed or issued to the incumbent with a rider, that if the Government servant has been placed under suspension from an earlier date, the departmental proceeding would be counted to have been initiated from the date on which the person has been put under suspension. In the present case, the petitioner was put under suspension from the year 1990 and the suspension was only revoked on 30.03.1994, one day prior to his retirement. As such, the date of departmental proceeding would be counted from the date on which the petitioner was put under suspension. 7 Lastly, Counsel for the petitioner argues that the order of suspension indicates that the charges are different to those contained in Annexure-8. I may explain this by saying that the order of suspension is not an encyclopedia of the charges that are to be framed against an incumbent. In any event of the matter, it appears that the reasons for putting the petitioner under suspension as contained as Annexure-1 are that the Cash Register and the Stock Register were not properly maintained by the petitioner. The charges would at least indicate that the Stock Register which contains the stock of the medicines ordered and the medicines received in the godown are to be maintained by the person Incharge of the godown. The requisition for the medicines required actually is also forwarded by the person concerned. Therefore, I find that the charges as contained in Annexure-8 are covered by the allegations leveled in Annexure-1. The argument of the petitioner on this score is, therefore, not maintainable. In the result, I do not find any merit in the points raised in this writ application. This writ application is thus dismissed. AFR/Anand ( Sheema Ali Khan, J. )