IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6936 of 2003 DR.MANORANJAN KUMAR SHRIVASTAV, son of Late Mangal Kumar Shrivastava, resident of Mohalla Chandmari Road, C/o Dr.M. N. Sinha, Police Station Kankarbagh, District- Patna. … Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary, Medical Education and Family Welfare Department, Government of Bihar, having his office in Vikas Bhawan, New Secretariat, Police Station Sachivalaya, District- Patna. 2. The Director in Chief, Health Department, having his office in Vikas Bhawan New Secretariat, Police Station Sachivalaya, District Patna. 3. The Additional Director, Medical Education and Family Welfare Department, Government of Bihar, having his office in Vikas Bhawan, New Secretariat, Police Station Sachivalaya, District- Patna. 4. The Principal, Sri Krishna Medical College, Muzaffapur, District- Muzaffapur. 5. The Account General (Accounts and Entitlement) II, Bihar, Patna having his office in Birchand Patel Path Police Station Kotwali, District- Patna. … Respondents. ----------- 9. 19.08.2010 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ petition reads as follows;- “1. That this is an application for issuance of writ in the nature of mandamus commanding the respondents to sanction full pension as only 90% provisional pension has been sanctioned and only 90% pension is being paid. The respondents be directed to sanction full amount of gratuity and paid in the same aforesaid amount of 10% arrears of pension and gratuity may be paid along with interest at the rate of 12% per annum from due date apart from interest mention in Government circular from due date till the actual payment is made. The respondents be directed to 2 commute the 40% pension without appearing the petitioner in the medical Board with interest upon the commuted amount.” Counsel for the petitioner has drawn attention of this Court towards I. A. No. 3419 of 2005 which was allowed by this Court vide order dated 20.7.2005 wherein the petitioner by way of an amendment to the aforementioned relief has also sought to challenge the order of punishment of stoppage of 10 % of pension dated 28.2.2000 and the consequential order by way of intimation to the Accountant General dated 21.12.2004 as with regard to final approval of 90% of the gratuity amount leaving 10 % of gratuity to be paid only after the judgment in criminal cases in which the petitioner had submitted his post mortem/ injury reports. Counsel for the petitioner has contended and in the opinion of this Court rightly so, that if a departmental proceeding was drawn against the petitioner prior to his superannuation and was sought to be continued in terms of Rule 43 of Bihar Pension Rules, even then the basic requirement of principles of natural justice could not have been waived. In this context, he has submitted that in the departmental proceeding drawn against the petitioner, the 3 Enquiry Officer had fully exonerated him from all the charges by making an observation that any further action against the petitioner could be taken if there was any adverse order/ stricture against him in the trial of criminal cases in which post-mortem / injury reports prepared by him were under consideration. Counsel for the petitioner therefore would submit that the order of punishment by differing from the finding of the Enquiry Report in favour of the petitioner without notice to him was wholly impermissible and therefore the impugned order cannot be sustained on this ground alone. Counsel for the State with the help of the counter affidavit as also supplementary counter affidavit has made an attempt to justify the impugned order of punishment against the petitioner or the authorization of payment of 90% of pension and gratuity on the ground that Bihar Pension Rules includes gratuity and therefore when there was order of punishment of withholding 10 % of pension till the conclusion of different criminal cases in which the petitioner had submitted false post mortem / injury reports, he would not be entitled for payment of 10% of pension and 10% of gratuity. 4 In the opinion of this Court, even when the petitioner had retired and the authorities had continued with the departmental proceeding drawn against the petitioner during his service tenure, he could not have been punished by way of reduction of pension unless there were materials which could have shown either gross misconduct or pecuniary loss to the Government on his part. Preparation of false medical report by way of injury report and/or post mortem report would definitely fall within the category of gross misconduct under Rule 43 of the Bihar Pension Rules inasmuch as the entire base of the criminal prosecution is squarely dependent on the medico- legal evidence and therefore a government doctor preparing false injury report and/or postmortem report can easily held to have committed gross misconduct but then for passing any order of punishment for such gross misconduct, the authorities in terms of proviso to Rule 43 (B) of Bihar Pension Rules were required to follow the same procedure meant for awarding the major punishment under Rule 49 read with Rule 55 of Civil Services (Classification, Control and Appeal) Rules. Admittedly, in this present case the copy of the 5 enquiry report was not served on the petitioner and the order of punishment of withholding 10% of his pension came to be passed even without notice and/or affording an opportunity of hearing to the petitioner. Such lapses by themselves would become fatal in the case of the petitioner because the Enquiry Officer had fully exonerated the petitioner from all the charges. Thus, if the Disciplinary Authority of the petitioner had chosen to differ with the report of the Enquiry Officer for inflicting punishment by way of stoppage of 10 % of his pension, the petitioner was required to be given not only the copy of the enquiry report but also the tentative reasons for holding that the petitioner was still guilty despite his being exonerated by the Enquiry Officer. That is how the law stands settled by the Apex Court in the case of Punjab National Bank & ors. vs. Kunj Behari Mishra, reported in 1998(7) SCC 84. In view of the aforementioned discussion, it becomes clear that the order of punishment against the petitioner is wholly illegal and cannot be sustained. Thus, the impugned orders as contained in Annexure-3 and 4 are, accordingly, quashed. 6 As noted above, the charges against the petitioner are quite serious in nature and therefore if the Disciplinary Authority would still choose to differ with the findings of the Enquiry Officer he must give a fresh show-cause notice to the petitioner within a period of two months from the date of receipt/production of a copy of this order. If the petitioner is given such show-cause notice and he would submit his reply within four weeks whereafter the concerned authority must take his final decision within a period of three months from the date of filing of the show- cause reply by the petitioner. The whole exercise must be completed within a period of six months from the date of receipt of production of a copy of this order, where after necessary order for release of 10% balance pension and gratuity will be taken in the light of the order of punishment, if any, passed by the authorities. If no order of punishment is passed against the petitioner solely on account of laches on the part of the authorities of the Health Department, the petitioner will become entitled for full gratuity and full pension upon completion of the aforementioned of six months subject to the condition that the petitioner himself would file his reply to the second 7 show-cause notice containing the reasons of the Disciplinary Authority for recording difference of opinion with the findings of the Enquiry Officer within a period of four weeks from the date of service of notice on him. With the aforementioned observations and directions, this writ application is disposed of. kanchan/- (Mihir Kumar Jha, J.)