ORAL JUDGMENT

Date : 06-02-2024 Heard learned counsel for the petitioners and learned counsel for the State.

2. The present writ petition has been filed for the following reliefs:

i. For setting aside the enquiry report contained in letter no. 233 dated 4-8-2016 submitted by the Enquiry Officer cum Additional Chief Medical Officer, Purnea, whereby the charges of misconduct has been found to be proved.

ii. For setting aside the order of punishment contained in memo No. 2027 dated 3-8-2017 passed by the Civil Surgeon cum Chief Medical Officer, Purnea, whereby 100% pension and gratuity of the petitioners’ father has been withheld permanently and further the petitioners’father has been found entitled only for subsistence allowance for the period remained under suspension.

iii. The petitioners further prays that after setting aside the aforementioned punishment his 100% pension with interest and gratuity with statutory interest may be directed to be paid immediately.

iv. For any other relief for which the petitioners may be deemed entitled to.

v. For setting aside the reasoned order contained in Memo No.1295(4) dated 25.10.2018, passed by the Director- In-Chief (Disease Control) Health Services, Bihar, Patna, whereby the service appeal filed by the petitioners’ father was rejected.

3. Learned counsel for the petitioners submits that the petitioners’ father was posted as clerk in the office of Superintendent of Sadar Hospital, Purnea, in additional charge of clerk in the office of Licensing Officer, Sadar Hospital, Purnea. Counsel submits that a Vigilance Case No.076 of 2014 was registered against him under the Prevention of Corruption Act and petitioners’ father was arrested on 21.10.2014. He was subsequently allowed bail on 04.03.2015. Counsel submits that during his custody in jail he retired on 31.01.2015, when he came out then a departmental proceeding has been initiated against him and in this regard a letter in the form of order has been issued vide Memo No.1686 dated 02.06.2015 by the Civil Surgeon-cum-Chief Medical Officer. Counsel submits that from the said letter it transpires that the Director-in-Chief, Health Services, Department of Health, Government of Bihar, Patna, has ordered vide letter No.559(4) dated 22.05.2015 to initiate the departmental proceeding and prior to that different letters were communicated to the Principal Secretary for initiation of proceeding under Rule 43(b) of the Bihar Pension Rules, 1950, as the petitioner has already been retired. Counsel for the petitioners further submits that vide order dated 18.12.2023 this Hon’ble Court has pleased to direct to produce the original copy of the disciplinary proceeding before this Court. The original copy of the record is available and he submits that the order of initiation of the departmental proceeding has been taken after his retirement, i.e., on 25.05.2015 and, therefore, the true compliance of Rule 43(b) of the Bihar Pension Rule, 1950 is a necessary ingredient under which the State Government has to take a decision for initiation of the departmental proceeding but here in the present case the decision has not been taken by the State Government and, as such, the said order for initiation of the departmental proceeding is bad in law and, therefore, all other subsequent decisions, i.e., enquiry report, the original order passed by the disciplinary authority as well as the appellate authority are also bad-in-law and not fit to be sustained.

4. Learned counsel for the State, on the other hand, submits that the writ petition of the petitioners is not maintainable due to the reason that petitioners’ father was apprehended in a vigilance case and he has been caught red handed by taking bribe money, on the basis of which vigilance case was initiated against him and he was arrested by the Vigilance team on 20.10.2014. Learned counsel for the State further submits that the petitioners’ father was suspended on 21.10.2014 just after one day of the arrest by the police