IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.73 of 2005 Dr.Madan Mohan Dubey, son of Shri Krishna Kumar Dubey, resident of 67 M.I.G., Kankarbagh Colony, Patna- 800 023. ---Petitioner Versus 1. The State Of Bihar. 2. The Chief Secretary, Govt. of Bihar, Old Secretariat, Patna. 3. The Commissioner-cum-Secretary, Department of Health, Medical and Family Welfare, Government of Bihar, Patna. 4. Deputy Secretary, Department of Health and Family Welfare, Government of Bihar, Patna. ---Respondents ---------------------------------- For the Petitioner : Dr. Madan Mohan Dubey (in person) For the S t a t e : Mr Pushkar Narayan Shahi, Additional Advocate General no.14 --------- 13. 16.9.2011 Heard the petitioner, who has appeared in person, and Mr. Pushkar Narayan Shahi, learned Additional Advocate General no.14 appearing for the State. Counter affidavit and supplementary counter affidavit have been filed on behalf of the State. The petitioner through this writ application prays for quashing the notification bearing Memo No.50(9) dated 13th of January, 2004, as contained in Annexure 8, whereby the respondent-authority has ordered for forfeiture of his pension to the extent of 15% in a departmental proceeding initiated under rule 43(b) of the Bihar Pension Rules (hereinafter referred to as “the Rules”) as also letter No.996 dated 5th of July, 2004, as contained in Annexure 9, whereby he was communicated that the appeal filed by him against the aforesaid order of punishment has - 2 - been rejected. The petitioner while working as an Incharge Medical Officer at Referral Hospital, Bohre, District Gopalganj was proceeded departmentally for allegedly making an indent for purchase of medicines worth Rs.1,48,595/- in excess of the allotment provided by the State during the material period. The petitioner was accordingly chargesheeted, vide Annexure 3, for purchase of the medicines/indent to the firm M.S.D., Calcutta and also for receiving those medicines. The petitioner on receipt of the charge sheet submitted his show cause denying the charges. The basic stand of the petitioner was that although indent was made as a common practice as the allotment used to come from the State from time to time. Further stand is that before the medicines could be receipted by the petitioner, he was transferred to a different Centre and, as such, no medicine was received by him. As a matter of fact, the medicines were not receipted even by his successor-in-office. An enquiry was held in the matter and the enquiry officer has submitted his enquiry report dated 28th of March, 2001, as contained in Annexure 4. During the enquiry, the charges of purchase of medicines and also the receipts could not be established. As such, it was also established that no loss was caused to the Government by the aforesaid acts of the petitioner in making the indent. The competent authority upon considering the enquiry report, the second show cause and the reply to the second show cause notice was of the view that the charges against the petitioner - 3 - was partly proved and as such, awarded the punishment of withholding of 15% of his pension. The appeal of the petitioner was rejected by order dated 5.7.2004, as contained in Annexure 9. The petitioner, who appeared in person, submits that the basic charge against him of purchase and receipt of the medicines was not proved. It was also submitted that it is an admitted fact that no loss was caused to the State Government on account of the action of the petitioner, who has served the State for about 31 years and at no point of time he was visited with any punishment or show cause notice for any misconduct or any action warranting any disciplinary action so much so that the petitioner got his second Assured Career Progression (ACP) with effect from 9.8.1999 vide notification dated 23.6.2010, as contained in Annexure 14 . In support of the above submissions, the petitioner has placed reliance on a decision of this Court in the case of Asha Sinha v. State of Bihar, reported in 2005(1) PLJR 68, for the proposition that in absence of any loss caused to the Government, no pension can be withheld under rule 43(b) of the Rules. In the above circumstances, the petitioner prays for quashing of the aforesaid orders, as contained in Annexures 8 and 9 to the writ application. Mr Shahi, learned Additional Advocate General no.14 appearing for the State submits that although no pecuniary loss has been caused to the State Government, which also finds support from the information furnished to the petitioner under the Rights to Information Act vide letter dated 22nd of April, 2008, as - 4 - contained in Annexure 12. However, it was submitted that the conduct of the petitioner in making the indent was contrary to the rules, which amounts to misconduct. Considering the submissions of the parties and on perusal of their respective pleadings, it is not in dispute that firstly, no loss was caused to the Government and secondly, although the petitioner has not followed the rules in making the indent, the Government has sustained no loss on account of misconduct/negligence on his part. This Court in the decision in the case of Asha Sinha v. State of Bihar (Supra), considering the decision of the Hon’ble Supreme Court in the case of Chandreshwar Prasad Sinha v. State of Bihar and another, reported in 2001(9) SCC 369, has held as follows : For initiating a proceeding under Rule 43(b) of the Bihar Pension Rules, there must be charge alleging pecuniary loss to the government and the same must be proved unless the employee concerned is found guilty of misconduct and to have caused pecuniary loss to the government, no order of punishment for withholding or withdrawing pension or any part of it permanently or for specified period or for recovery from the pension of whole or part of pecuniary loss can be passed.” In this view of the matter, I find that the order imposing the punishment of withholding of pension of the petitioner to the extent of 15% vide notification dated 13.1.2004, as contained in - 5 - Annexure 8, as also the rejection of his appeal against the above order vide letter dated 5.7.2004, as contained in Annexure 9, cannot be sustained in law. Accordingly, for the reasons stated above, the aforesaid orders, as contained in Annexures 8 and 9, are hereby quashed. Consequently, the amount of pension withheld be released in favour of the petitioner expeditiously, preferably within a period of three months on receipt/production of the certified copy of the present order/judgment. In the result, the writ application is allowed. No costs. PNM (Shailesh Kumar Sinha, J.)