BHUBNESHWAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) Questioning the correctness of the impugned order dated 3.9.2003, whereby and whereunder, the petitioner, a retired Civil Surgeon, has been subjected to both recovery of Rs. 1,07,365/- alongwith interest at the rate of 10% per annum as also withholding of 20% of pension, Mr. Rajendra Narayan, learned counsel for the petitioner has submitted that the impugned order cannot be sustained in view of the fact that the petitioner had already retired on 30.6.1999, whereafter, only the memo of charge was issued on 9.7.1999 for initiating a departmental proceeding under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 treating the petitioner to be still continuing in service. He has further submitted that the petitioner was also given no opportunity and in fact no enquiry in terms of Rule 43(b) of Bihar Pension Rules was ever held and, therefore, the impugned order cannot be even otherwise sustained either on fact or in law.

(3.) Counsel for the State, on the other hand, would submit that the memo of charge was already signed by the competent authority on 28.6.1999 but could be issued by the Dispatch Clerk on 9.7.1999 and as such, a proceeding under Rule 55 was very much maintainable in view of the judgment of Full Bench in the case of Shambhu Saran V/s. State of Bihar & Ors.,2000 1 PLJR 665. He has further submitted that it was for the petitioner to collect the memo of charge specially, when he had already come to know of it in the pending writ application filed by him for payment of his retirement benefit being CWJC No. 79 of 2002. He has also submitted that the writ application suffers from the vice of delay and laches, inasmuch as, the impugned order of punishment was passed on 3.9.2003 but the present writ application has been filed after four years on 24.9.2007 and that too after partly accepting one of the two punishments inflicted on the petitioner. Learned counsel for the State has also highlighted that the charges against the petitioner were quite serious, inasmuch as, he in capacity of Civil Surgeon had made unauthorized charges of medicine as also Was negligent in performance of his official duty. In this context, he has referred to different reports of his supervision officer including the Cabinet Minister as also the Collector of the district which went to show that various programmes of the Health Department could not be completed on account of repeated absence and continued absence of the petitioner.