Dr.Md.Quasim Ahmad v. The State Of Bihar And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.4758 of 2010 ===========================================================

1. Dr.Md.Quasim Ahmad S/O Late Md. Sharif R/O Dadi Jee Street/Lane Near Ibp Petrol Pump, Boring Road , P.S. S.K.Puri, Distt-Patna .... .... Petitioner/s

Versus

1. The State Of Bihar Through The Principal Secretary Health Department Bihar, Patna

2. The Joint Secretary To The Govt. Health Department Bihar,Patna

3. The Deputy Secretry To The Govt., Department Of Health Bihar, Patna

4. The Under Secretary, Health Department Govt.Of Bihar, Patna

5. The Deputy Director , Health Services Bihar, Patna

6. The Deputy Superinendent, Subdivisional Hospital Danapur, Patna

7. The Under Secretary, Finance Department Govt.Of Bihar, Patna

8. The Accountant General Bihar , Birchand Patel Path, Patna .... .... Respondent/s =========================================================== Appearance :

For the Petitioner/s : Mr. Rishit Deo Kumar Singh Mr. Alok Kumar Mishra For the State : Mr. Niraj Kumar =========================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL JUDGMENT Date: 16-03-2018 Heard learned counsel for the petitioner and learned counsel for the State.

In the present case, the petitioner is challenging the impugned notification dated 5.10.2009 issued by the Joint Secretary vide memo no.971(9) dated 6.10.2009 by which petitioner's full pension has been forfeited. The petitioner was working in the health services and he had applied for educational leave for higher study on 18.8.1992 which was allowed for six months. He was relived from the post for higher study for six months but he over-stayed there and had

taken a plea that for extending the period from time to time he had sent the communication. But the respondent had never responded to his leave application, after return he gave his joining vide letter dated 26.4.1997 (Annexure-4) wherein it has been mentioned that he was giving his joining and requested for his placement but did not receive any instruction. Again he filed an application on 27.3.2003 reiterated the same and requested to give place of posting, instead of giving posting to the petitioner, the respondent decided to initiate a departmental proceeding against him. Accordingly the proceeding was initiated.

The exparte enquiry was started, in the meantime, the petitioner superannuated from the service and proceeding was converted into the proceeding under section 43(b) of Bihar Pension Rules and thereby the order of punishment dated 5.10.2009 has been passed whereby the entire pension has been forfeited. Learned counsel for the petitioner submits that he was not given proper notice to participate in the proceeding as well as the punishment which has been inflicted is against him is completely disproportionate to the alleged misconduct as entire pension has been taken away and thereby he would be deprived his livelihood, and he will remain empty hand for his no fault.

was placed anywhere and without giving response ex-parte enquiry was conducted and punishment has been inflicted. Learned counsel the State has submitted that the petitioner was granted leave for six months, he over stayed made a claim that from time to time application was sent for extension of time but State refuted such claim, stated that no such application was received by the State. Further submitted that he was knowing that the proceeding was started against him which is apparently clear from letter dated 8.5.2004 (Annexure-7) as statements made therein reflects he had knowledge for the proceeding. He has further stated that memorandum dated 21.4.

2004 shows the same along with charge memo was sent to residential address at Boring Road, this letter shows to initiate a proceeding but the date fixed for enquiry by the Enquiry Officer was sent to Hospital address where he was not working. It was expected from the Enquiry Officer to send the notice at proper place. Conducting the exparty enquiry without proper notice by the Enquiry Officer suffers from illegality inasmuch on return petitioner filed his application for his joining which was neither accepted nor rejected. He again gave joining in the year 2003, this time also no proper response was given.

after retirement remain dependent upon the pension. In no circumstances, 100% pension can be taken away, that too on the ground of over stay when he came and had filed application for joining. The enquiry has not done in a proper manner as notice was sent to the unknown place to petitioner. In such view of the matter, the enquiry proceeding as well as the order of punishment dated 5.10.2009 are set aside and this Court directs, if so advised, the respondent State may hold a fresh enquiry after giving proper notice and will pass the order in accordance with law. The punishment should not be such to take away 100% pension, there by take away livelihood of the petitioner.

Accordingly this writ petition is allowed to the aforesaid extent.

Vinay/- (Shivaji Pandey, J) AFR/NAFR NAFR CAV DATE NA Uploading Date28.3.2018 Transmission Date NA