Dr. Anisur Rahman Ansari vs The State Of Bihar
2021 Latest Caselaw 1528 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.7439 of 2020
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Dr. Anisur Rahman Ansari Son of Late Reyazur Rahman Ansari Resident of Flat No. 403, A- Block, Hytec Azhar, Samanpura, Near Belal Masjid, Post Office- Bihar Veterinary College, Police Station- Shastrinagar, District- Patna- 800014.

... ... Petitioner/s Versus

1. The State of Bihar Through the Principal Secretary, Department of Health, Government of Bihar, Patna.

2. The Under Secretary, Department of Health, Government of Bihar, Patna.

3. The District Magistrate Saran at Chapra.

4. The Civil Surgeon cum Chief Medical Officer Saran at Chapra.

5. The Additional Chief Medical Officer Saran at Chapra.

6. The Additional Director cum Conducting Officer Department of Health, Government of Bihar, Patna.

7. The Accountant General Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Siya Ram Sahi, Adv.

Mr. Syed Masleh Uddin Ashraf, Adv.

For the Respondent/s : Mr. Ajay Behari Sinha, G.A.-8 Mr. Neeraj Raj, AC to G.A.-8 ====================================================== CORAM: HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN ORAL JUDGMENT Date : 18-03-2021 Heard learned counsel for the petitioner and

learned counsel for the respondents.

This writ application has been filed by the

petitioner for issuance of an appropriate writ/order/direction

commanding the respondents to pay the post retiral benefits of

the petitioner viz. Pension, Gratuity and Leave Encashment with

statutory interest as the petitioner has superannuated on

30.04.2019.

Patna High Court CWJC No.7439 of 2020 dt.18-03-2021

The facts giving rise to the present writ petition

is that the petitioner joined the Health Service of the State on

15.07.1981 on the post of First Medical Officer, Primary Health

Centre, Minapur, District-Muzaffarpur. Thereafter, he was

posted at various places, either as Medical Officer or In-Charge

Medical Officer or on Leave Reserved Post. Finally, on

06.10.2009, he was posted as Medical Officer in Primary Health

Centre, Mashrak, District-Saran and retired from there on

30.04.2019 as Medical Officer In-charge.

After superannuating from the post of Incharge

Medical Officer, the petitioner submitted his pension paper to

the office of A.G. Bihar for issuance of P.P.O. and Gratuity with

no objection certificate but he has not been paid his pension and

gratuity up till now.

It is stated that while the petitioner was posted

as Medical Officer, Primary Health Centre, Mashrak, Saran, on

the basis of Memo No. 684 dated 15.02.2019 issued by Civil

Surgeon-cum-Chief Medical Officer, Saran at Chapra, he was

subjected to departmental proceedings for which memo of

charge has been issued on 30.08.2019. Petitioner submitted his

show cause to the Conducting officer on 27.09.2019 stating

therein that he has not committed any misconduct so far as the Patna High Court CWJC No.7439 of 2020 dt.18-03-2021

alleged purchased is concerned. The Civil Surgeon-cum-Chief

Medical Officer, Saran has passed an order on 31.05.2019

withholding 10% honorarium of Block Health Manager,

Mashrak and Anchal Accountant, Mashrak for the month of

May, 2019 only. The petitioner has also submitted his

supplementary show cause on 22.10.2019 to the Conducting

Officer.

Learned counsel for the petitioner submits that

petitioner superannuated on 30.04.2019 and charge memo has

not been served to the petitioner before superannuation but the

said charge memo has been served to the petitioner on

30.08.2019 and the proceeding has been started under Rule

43(b) of the Bihar Pension Rules. Learned counsel for the

petitioner further submits that petitioner has already been paid

General Provident Fund and Insurance Amount.

A counter affidavit has been filed by the

respondent nos. 1, 2 and 6 in which it is stated that departmental

Memo No. 861 (2) dated 24.08.2020 has been issued for making

payment of 90% pension of the petitioner and 10% pension has

been kept in-abeyance due to pendency of departmental

proceeding already initiated against him vide memo no. 970 (a)

dated 02.09.2019 (Annexure-A and A/1 of the counter affidavit). Patna High Court CWJC No.7439 of 2020 dt.18-03-2021

So far as the payment of gratuity amount is concerned, gratuity

amount of the petitioner has been withheld due to pendency of

departmental proceeding in the light of the notification no. 77

dated 21.01.2019 issued by the Finance Department,

Government of Bihar. The petitioner superannuated from

service on 30.04.2019 but prior to that the Civil Surgeon, Saran

vide his letter No. 684 dated 15.02.2019 had already made

available memo of charge against the petitioner alleging

misappropriation of fund of Rs. 34,75,000/- committed by him

in purchase in the financial year 2016-17 under the CHC head.

Learned counsel for the State submits that in

memo no. 52 (2) dated 13.01.2021, the petitioner's admissible

unutilized earned leave equivalent to 300 days has been

sanctioned for making payment (Annexure-D of the

supplementary counter affidavit).

It is admitted fact that petitioner was retired on

30.04.2019 and on that date no departmental proceeding was

pending against him. After retirement of the petitioner, charge

memo was served to him on 30.08.2019, thereafter,

departmental proceeding started against the petitioner under

Section 43 (b) of the Bihar Pension Rules.

I have heard the learned counsel for the Patna High Court CWJC No.7439 of 2020 dt.18-03-2021

petitioner and learned counsel for the State at length and

perused the case record. At this juncture, it would be relevant to

reproduce hereinbelow notification no. 77 dated 21.01.2019:-

"Rule-27 of the Bihar Pension Rules,

1950 shall be substituted by the

Following:-

"27-Pension includes gratuity except

the cases under rule 43(d)."

The following a new clause (d) shall

be added after clause (c) of rule-43 of

Bihar Pension Rules, 1950:-

"(d)-if any departmental or judicial

proceeding is pending against the

govt. servant at the time of retirement,

full amount of gratuity may be with

held till the final conclusion of the

departmental or judicial proceeding

and issuance of order accordingly."

Rule 43(d) says that if any departmental or

judicial proceeding is pending against the govt. servant at the

time of retirement, full amount of gratuity may be withheld till

the final conclusion of the departmental or judicial proceeding. Patna High Court CWJC No.7439 of 2020 dt.18-03-2021

In the present case, the petitioner retired on 30.04.2019 and on

that date no charge of memo was given to the petitioner. It is

admitted fact that no departmental proceeding was pending

against the petitioner before superannuation but the

departmental proceeding was initiated against the petitioner on

02.09.2019 (Annexure-A/1 of the counter affidavit).

It is also fairly well settled that departmental

proceeding can be said to have initiated only when charge-sheet

has been served. Admittedly, the charge-sheet in the instant case

was served only on 30.08.2019 after superannuation of the

petitioner.

State counsel relying upon the charge-sheet dated

15.02.2019 (Annexure-2 of the writ application), but the so

called charge-sheet is a mere recommendation by the Civil

Surgeon-cum-Chief Medical Officer, Saran before Principal

Secretary, Health and is yet to be endorsed by the State

Government, by issuance of a notification. The charge-sheet

thus may be a recommendation but does not possess the

essentials of an order of the State Government. Such notification

was issued on 30.08.2019 (Annexure-E of the counter affidavit).

In the facts and circumstances of the case and the

discussions made in the foregoing paragraph, Rule 43 (d) of the Patna High Court CWJC No.7439 of 2020 dt.18-03-2021

Bihar Pension Rules, 1950 is not applicable in the present case.

Considering the legal proposition, the

respondents are directed to pay entire gratuity amount to the

petitioner within a period of four months from the date of

receipt/production of this order. It is made clear that if the

admitted dues of the petitioner is not paid to him within the

stipulated period, as aforesaid, the concerned respondents shall

be solely responsible for non-compliance of this Court's order.

With the aforesaid observation and direction, this

writ application is disposed of.

(Anjani Kumar Sharan, J) devendra/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          23.03.2021
Transmission Date       NA