Oral Judgment:

1. Heard the parties.

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

                  “(i) For quashing of the notification inflicting punishment of forfeiter of 20% pension and gratuity contained in memo no. 1245 dated 23.9.2013 for alleged violation of the government direction in issuing indent for medicine from MSD, Kolkata.

                  (ii) For appropriate order/direction/writ directing the respondents to act upon the notification contained in memo no. 1245 dated 23.9.2013 whereby in purported exercise of Rule 43 (b) of the Bihar Pension Rule 20% of the Pension and gratuity have been permanently forfeited.

                  (iii) For appropriate declaration:-

                  (a) That the entire departmental proceeding under Rule 43 (b) of the Bihar Pension Rule is nullity and perverse proceeding as the charges are vague and contrary to record.

                  (b) That the disciplinary authority as well as enquiry officer has not applied his mind for forfeiture of pension and gratuity is illegal and arbitrary exercise of power.

                  (c) That issuing of indent for medicine by the petitioner was the accordance with the guidelines of the state government and within the allotment and as such no misconduct was committed by the petitioner.

                  (d) That as per purchase policy the deputy director (material), Health Department was obliged to monitor the indent order from the MSD, Kolkata and any indent of medicines on account of necessity due to epidemic cannot be considered as lapse on the part of the petitioner.

                  (e) That admittedly no payment was made by the petitioner for purchase of medicine from MSD, Kolkata and there is no allegation of irregular or wrong utilization of medicine or non receipt of medicine from MSD, Kolkata as per the indent.

                  (f) That necessity for additional medicine considering the epidemic and emergency/exigency cannot be construed as misconduct and can be a ground for forfeiting 20% pension and gratuity.

                  (iv) For a direction to the respondents to pay the full pension and gratuity as if the notification contained in memo no. 1245 dated 23.9.2013 is not existed.

                  (v) Any other relief or reliefs for which the petitioner be found entitled in law be granted to him.”

3. The brief facts giving rise to the present writ petition are that while the petitioner was posted as Civil Surgeon-cum-Superintendent, Sadar Hospital, Gumla from 03.12.1990 to 23.05.1995, wherein he had issued indent for supply of medicine in accordance with the existing purchase policy of the government within the allotment. After the petitioner was transferred from Gumla, an enquiry was conducted by the Regional Deputy Director (hereinafter referred to as RDD), Health, Chota Nagpur, Ranchi with regard to supply order of medicine from MSD, Kolkata. The RDD after conducting an enquiry, submitted his report, copy whereof was also served upon the petitioner. The report so submitted stated that the order for supply of medicine was within the allotment. After six years of the submission of the report, vide notification contained in memo no. 1075 (3) dated 21.08.2002 issued under the signature of the Joint Secretary to the Government, Department of Health, Government of Bihar, Patna the petitioner was put under suspension and his headquarter was fixed in the office of the Regional Deputy Director, Health Service, Muzaffarpur. Subsequently, vide letter no. 702 (9) dated 12.09.2003 issued under the signature of the Deputy Secretary to the Government, Department of Health, Government of Bihar, Patna, memo of charge was issued against the petitioner and he was directed to submit his reply to the show cause notice. After suspension, since the subsistence allowance was not being paid to the petitioner, the petitioner filed a writ petition before this Court, which was numbered as C.W.J.C. No. 2702 of 2005. The said writ petition was heard by a learned Co-ordinate Bench of the Court and vide order dated 24.05.2006, the learned Co-ordinate Bench proceeded to allow the writ petition, preferred by the petitioner. After passing of the order dated 24.05.2006 in C.W.J.C. No. 2702 of 2005, vide memo no. 605 (9) dated 13.05.2006 issued under the signature of the Deputy Secretary to the Government, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna, a decision was taken to initiate departmental proceeding against the petitioner on the charges which were served upon the petitioner vide letter no. 702 (9) dated 12.09.2003. It was further mentioned in the said letter dated 13.05.2006 that the Presenting Officer and the Enquiry Officer/Conducing Officer would be appointed later on. It was further ordered to serve the letter dated 13.05.2006 upon the petitioner along with the memo of charge, which was issued vide letter dated 12.09.2003. The petitioner was directed to submit his show cause reply. In compliance thereof, the petitioner vide his letter dated 07.07.2006, submitted his reply to the show cause notice, wherein he gave a detailed para-wise reply to the charges levelled against him. During pendency of the departmental proceeding vide memo no. 746 (3) dated 25.06.2008 issued under the signature of the Deputy Secretary to the Government, Department of Health, Government of Bihar, Patna, the suspension of the petitioner was revoked and he was posted in the office of the Deputy Director, Health Services (Headquarter), Government of Bihar, Patna. The petitioner asked for certain documents vide his letter dated 06.11.2009. Vide letter no. 156 (9) issued under the signature of the Under-Secretary to the Government, Department of Health, Government of Bihar, Patna, addressed to the petitioner, it was informed that the documents asked for by the petitioner are not relevant in the proceeding against the petitioner and with regard to certain documents, it was stated that the same have been asked for, from the concerned place and after receipt of the same, the petitioner will be served/supplied with the said documents. Again vide his letter dated 08.02.2010, the petitioner submitted a supplementary show cause reply before the Under-Secretary to the Government, Department of Health, Government of Bihar, Patna, wherein he again reiterated the same thing, which he has stated in his reply and further explained the department about his non involvement and not committing any mistake or irregularity in purchase of the medicine. Again vide letter dated 22.02.2010, the petitioner asked for certain documents to be supplied to him. Further vide his letter dated 13.06.2010, the petitioner again gave a supplementary show cause reply, denying all the charges which were levelled against him and he further informed the departmental enquiry Commissioner that despite his repeated directions to the departmental representative, to make available the documents and evidences related to the charge, the same have not supplied to the petitioner. Vide letter dated 11.07.2010, the petitioner again submitted a supplementary show cause before the departmental enquiry Commissioner. Subsequently, vide letter dated 15.10.2010 and 25.10.2010, the petitioner again submitted a reply to the show cause and asked for certain documents to be provided to him. Vide memo no. 49 (9) dated 10.01.2012 issued under the signature of the Additional Secretary to the Government, Departmental of Health, Government of Bihar, Patna, the departmental proceeding initiated against the petitioner was converted in a proceeding under Rule 43 (B) of the Bihar Pension Rules. The Enquiry Officer, after conducting his enquiry, wherein he found the charges levelled against the petitioner to be partially proved, submitted his report before the disciplinary authority on 26.04.2011. Pursuant thereto, vide letter no. 421 (9) dated 27.03.2012, the second show cause notice was issued to the petitioner and the petitioner was given 15 days time to file his reply to the said notice. Along with the said letter dated 27.03.2012, the Enquiry report was also provided to the petitioner. In compliance thereof, vide letter dated 10.05.2012, the petitioner submitted his detailed reply to the second show cause notice issued to him, whereby he denied all the charges levelled against him and requested the disciplinary authority to exonerate him from the charges levelled against him. Finally, vide order contained in memo no. 1245/9 dated 23.09.2013 issued under the signature of the Additional Secretary to the Government, Government of Bihar, Patna the petitioner was inflicted with the punishment of deduction of 20% pension and gratuity, permanently. It has further been recorded in the order that although, the Bihar Public Service Commission has not given its consent to the proposed punishment stating therein that the same is disproportionate, however, the disciplinary authority by differing with the recommendation of the BPSC, proceeded to award the punishment above-mentioned under the Rule 43

(B) of the Bihar Pension Rules.

4. The learned counsel for the petitioner submits that the charge itself is vague and stale and is in complete violation of the provisions of principles of natural justice. He further submits that despite denial of consent by the BPSC, with regard to proposed punishment to be passed against the petitioner, the impugned order of punishment has been passed. He further submits that the Enquiry Officer without any evidence proceeded to prove the charges levelled against the petitioner partially. He further submits that the disciplinary authority passed a cryptic order and did not even consider the reply submitted by the petitioner, to the second show cause notice as well as the defence taken by the petitioner in his reply to the show cause and his supplementary reply.

5. The learned counsel for the petitioner further submits that during course of the entire departmental proceeding, no witnesses were examined by the Enquiry Officer and only on the basis of the documents, he proceeded to pass the impugned order of punishment. He further submits that the documents which were taken note of by the Enquiry Officer, during course of Enquiry, never proved by their respective authors, therefore, the same should not have been relied upon by the the Enquiry Officer and the Enquiry Officer only his own presumption, without any justifiable basis, recorded that the charge against the petitioner has been partially proved.

6. The learned counsel for the petitioner refers to and relies upon a judgment of the learned Co-ordinate Bench of this Court dated 27.08.2008 passed in a similar nature of case i.e. C.W.J.C. No. 11488 of 2005 (Dr. Suresh Jha Vs. The State of Bihar and Ors.), wherein the learned Co-ordinate Bench proceeded to quash the impugned order of punishment and directed for grant of all the service related benefits as well as consequential benefits in favour of the petitioner. The Letters Patent Appeals bearing L.P.A. No. 965 of 2008 was preferred by the State of Bihar against the order/judgment dated 27.08.2008 passed in C.W.J.C. No. 11488 of 2005, however the appeal preferred by the State of Bihar was dismissed with a cost of Rs. 5,000/- , which was directed to be paid to the petitioner.

7. The learned counsel for the petitioner refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in AIR 1971 SC 752 (Surath Chandra Chakrawarty Vs. The State of West Bengal), wherein in paragraph no. 4, it has been held as follows:-

                  “The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This Rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. By way of illustration one of the grievances of the appellant contained in his letter dated March 24, 1950, to the Enquiry Officer may be mentioned. This is what he said though the language employed is partly obscure and unhappy:”

8. The learned counsel for the petitioner further refers to and relies on a judgment passed by the Hon’ble Supreme Court of India reported in AIR 1986 (SC) 995 (Sawai Singh v. State of Rajasthan), wherein in paragraph nos. 15 to 18, the Hon’ble Supreme Court has held as follows:-

                  “14. Quite apart from that fact, it appears to us that the charges were vague and it was difficult to meet the charges fairly by any accused. Evidence adduced was perfunctory and did not at all bring home the guilt of the accused.

                  15. Shri B. D. Sharma, learned advocate for the respondent, contended that no allegations have been made before the enquiry officer or before the High Court, that the charges were vague. In fact the appellant had participated in the enquiry. That does not by itself exonerate the department to bring home the charges.

                  16. It has been observed by this Court in Surath Chandra Chakravarty v. State of West Bengal (1971) 3 SCR 1: (AIR 1971 SC 752) that charges involving consequences of termination of service must be specific, though a departmental enquiry is not like a criminal trial as was noted by this Court in the case of State of Andhra Pradesh v. S. Sree Rama Rao (1964) 3 SCR 25: (AIR 1963 SC 1723) and as such there is no such rule that an offence is not established unless it is proved beyond doubt. But a departmental    enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action, in respect of an order involving adverse or penal consequences against an employee, there must be investigation to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation.

                  17. The application of those principles of natural justice must always be in conformity with the scheme of the Act and the subject matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical natural justice. The requirements of natural justice depend upon the facts and circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties. See K. L. Tripathi v. State Bank of India (1984) 1 SCC 43: (AIR 1984 SC 273). Rules and practices are constantly developing to ensure fairness in the making of decisions which affect people in their daily lives and livelihood. Without such fairness democratic governments cannot exist. Beyond all rules and procedures that is the sine qua non.

                  18. Having regard to the consequences with which the delinquent officer was charged and having regard to the nature of charge and the evidence of hand-writing expert and the absence of opportunity for cross-examination and the conflicting nature of evidence of Chaturbhuj and nature of evidence given by Jiwan Dass, we are of the opinion that the report of the enquiry officer finding the appellant guilty should not have been sustained and the government should not have acted upon it. The High Court, in our opinion, with great respect, was in error in not bearing in mind these aspects which have been indicated hereinbefore.”

9. The learned counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Division Bench of this Court reported in 2015 (4) PLJR 435 (Hassan Muzahid Vs. The Bihar State Electricity Board & Ors.), wherein in paragraph nos. 07 and 08 has held as follows:-

                  “7. The petitioner was dismissed by enquiry. The only flaw pointed out by the the Disciplinary Authority, after conducting enquiry. The only flaw pointed out by the petitioner and the one that weighed with the learned Single Judge, is that the Disciplinary Authority did not furnish any reason in support of his conclusions. It needs hardly any mention that the issuance of second show cause has a definite purpose to serve and that is the only occasion, or avenue where the delinquent employee can make an attempt to convince the Disciplinary Authority that the findings by the Enquiry Officer are not correct. He can also impress upon the Disciplinary Authority that the proposed punishment need not be awarded and he can plead extenuating circumstances. Since, the order passed by the Disciplinary Authority was passed without taking into account, the grounds pleaded by the delinquent employee in his reply to the second show cause, it certainly turns to be defective. Time and again, the Hon'ble Supreme Court held that such exercise tends to be violative of one of the facets of the principles of natural justice, and the opportunity given to an employee would be reduced to empty formality. We, therefore, do not find any basis to interfere with the view taken by the learned Single Judge in this behalf.”

                  8. However, the direction issued to effect that the petitioner shall be reinstated in service, and thereafter, be placed under suspension, cannot be sustained in law. Since the order of punishment is not set aside on merits, the proceedings are just relegated to the stage of issuance of second show notice. Therefore, the petitioner shall be deemed to be under suspension, till the Disciplinary Authority passes a fresh order, as directed by the learned Single Judge.”

10.    The learned counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in 2009 (2) SCC 570 (Roop Singh Negi Vs. Punjab National Bank & Ors.), wherein in paragraph nos. 14 and 23, the Hon’ble Supreme Court of India has held as follows:-

                  “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.

                  23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.”

11.    The learned counsel for the petitioner further refers to and relies upon a judgment of the Hon’ble Supreme Court of India reported in 2010 (2) SCC 772 (State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha), wherein in paragraph nos. 27, 28 and 30 has held as follows:-

                  “27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

                  28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/Government. His function  is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

                  30. When a departmental enquiry   is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.”

12. Per contra, the learned counsel appearing on behalf of the respondent-State submits that the petitioner, while posted as Civil Surgeon procured/purchased medicines, by violating the directions of the State Government contained in letter dated 27.01.1982 and the same was more than the allotment made in that regard. He further submits that pursuant thereto, a show cause was issued to the petitioner and memo of charge was also served upon him. Thereafter the Enquiry Officer and the Presenting Officer were appointed. The Enquiry Officer, after giving due opportunity to the petitioner, proceeded to submit his enquiry report wherein he found the charge levelled against the petitioner to be partially proved. The disciplinary authority by following all the procedure of law, issued second show cause notice to the petitioner and alongwith the second show cause notice the enquiry report was also provided. The petitioner submitted his reply to the second show cause notice, which was duly taken into account by the disciplinary authority and after considering the enquiry report and the second show cause reply submitted by the petitioner, the disciplinary authority proceeded to award punishment of permanent reduction of 20% of the amount of pension and gratuity. He submits that the entire departmental proceeding was conducted in accordance with law and there is no infirmity in the orders passed by the disciplinary authority. He further submits that the departmental proceeding is conducted on preponderance of evidence and High Court under Articles 226 is not expected to review the enquiry report and the evidences brought on record during course of Enquiry Officer.

13. Having considered the rival submissions and after going through the documents on record, it appears that while the petitioner was posted as Civil Surgeon-cum-Superintendent, Sadar Hospital, Gumla, he purchased/placed order for certain medicines for which he was competent to order. An Enquiry was initiated against the petitioner and the RDD, Health, Chhota Nagpur, Ranchi was directed to conduct an enquiry. After conducting the enquiry, the RDD submitted his report wherein he came to the conclusion that the order for supply of medicine was within the allotment and he did not find any irregularity in the purchase of medicine by the petitioner. It further appears that after almost six years, a departmental proceeding was initiated against the petitioner, which was kept pending and subsequently in the year 2006, again a show cause notice was issued to the petitioner for the charge memo which was served upon the petitioner on 12.09.2003. The petitioner submitted his written explanation on 07.07.2006, wherein he stated that he had issued the indent in accordance with the law and the guidelines issued by the government and the said purchase order was issued through proper channel and no payment was made at the level of the petitioner. He further submitted in his reply that the medicines which were received by the petitioner were utilized in the Hospital and the entry of the said medicine was also made in the Stock Register. It further appears that the memo of charge does not disclosed any specific charge against the petitioner, rather some vouchers and amounts have been mentioned, for which the proceeding was initiated against the petitioner and during course of departmental proceeding, the Enquiry Officer without examining any witness, only on the basis of the documents made available by the Presenting Officer found the charges to be partially proved. Even he found that the petitioner had followed the rules and he was competent to issue the intent, however, on presumption, he proceeded to prove the charge partially proved against the petitioner. The disciplinary authority in his impugned order contained in memo no. 1245 (9) dated 23.09.2013 did not even considered the reply filed by the petitioner, to the second show cause notice or the reply which was submitted by the petitioner at the time of the departmental enquiry and only recorded that after considering the reply filed by the petitioner, the punishment order has been passed. Further, even the BPSC did not give consent on the proposed punishment, which was to be inflicted upon the petitioner. However, the disciplinary authority by differing with the concurrence given by the BPSC, proceeded to pass the impugned order of punishment. During course of entire departmental proceeding, no witnesses were examined which denied any opportunity to the petitioner to cross-examine the witnesses, to rebut the charges and to prove his innocence. Even the documents which were relied upon by the Enquiry Officer were not proved by their respective author, which caused prejudice to the petitioner.

14. Further a learned Co-ordinate Bench of this Court in a similar matter arising out of illegal purchase of medicine from M.S.D. vide order dated 27.08.2008 passed in C.W.J.C. No. 11488 of 2005, while observing that no materials were brought on record by the department during course of enquiry and no evidence was laid down during course of departmental enquiry, proceeded to hold that the case is of no evidence against the petitioner of that case and therefore, proceeded to allow the writ petition by quashing the punishment order, will all benefits.

15 Considering the above, this Court is of the opinion that the impugned order of punishment contained in memo no. 1245 (9) dated 23.09.2013, issued to the signature of the Additional Secretary to the Government, Department of Health, Government of Bihar, Patna deserves to be set aside and is accordingly set aside.

16. Consequent upon the quashing of the order dated 23.09.2013, the petitioner is entitled for payment of his entire 100% of gratuity as well as 100% of the pension. The petitioner will be treated to be getting 100% pension and gratuity, which he was entitled prior to passing of the order contained memo no. 1245 (9) dated 23.09.2013.

17. The respondent authorities are directed to make payment of the remaining 20% of the pension and gratuity, which has been withheld on account of passing of the impugned order dated 23.09.2013 within a period of four months from the date of receipt/production of a copy of the order. The petitioner would be entitled for payment of 100% pension w.e.f. 01.06.2026.

18. With the aforementioned observations and directions, the present writ is allowed.

19. Pending applications, if any, shall also stands disposed of.