Mithilesh Prasad vs The State Of Bihar
2023 Latest Caselaw 3781 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.6451 of 2023
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Mithilesh Prasad S/o Late Shivnandan Prasad Resident of Radheshyam Apartment, Chanakya Nagar, R.B.S. Kumhrar, P.S.-Agamkuan, Town and District-Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Additional Chief Secretary, Department of Health, Govt. of Bihar, Patna.

2. The Director in Chief (Administration), Health Services, Bihar, Patna.

3. The Superintendent, Infectous Disease Hospital, Agamkuan, Patna.

4. The Treasury Officer, Patna.

5. The Accountant General (A and E), Bihar, Patna.

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

     For the Petitioner/s   :       Mr. Shiv Kumar, Advocate
     For the State          :       Mr. Pankaj Kumar, SC-12
                                    Mr. Anuj Kumar, AC to SC-12
     For the AG             :       Mr. Vivekanand Kumar, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 17-08-2023 Heard Mr. Shiv Kumar, learned counsel appearing

on behalf of the petitioner; Mr. Pankaj Kumar, learned SC-12

along with Mr. Anuj Kumar, learned AC to SC-12 appearing on

behalf of the State and Mr. Vivekanand Kumar, learned counsel

appearing on behalf of the Accountant General.

2. Learned counsel appearing on behalf of the

petitioner submits that the petitioner has been denied pension

and retiral benefits. No. criminal or departmental proceeding

was pending against him on the date of his retirement. Patna High Court CWJC No.6451 of 2023 dt.17-08-2023

3. Learned counsel for the State submits that the

Civil Surgeon, Patna has proceeded against the petitioner for

holding the petitioner responsible for taking extra service from

one Ashok Kumar Dubey who was posted as Cook in the Office

of Superintendent, Infectous Disease Hospital, Agamkuan,

Patna. He further submits that petitioner was posted as clerk and

he being the custodian of the records, can only be held liable for

taking work for extra period of two years. The petitioner having

not informed the higher authorities has committed illegality

therefore, his 10% pension and entire amount of gratuity has

been withheld. At this stage, learned counsel further submits on

the instruction received from the District Immunization Officer

that departmental proceeding against the petitioner is pending

before the Civil Surgeon, Patna and the charge memo is

expected to be served by today to the petitioner.

4. Considering the nature of allegation as well as

the fact that petitioner had retired on 30.11.2022 on which date

there was no departmental proceeding pending against the

petitioner nor petitioner was facing any criminal charge, the

action of the Civil Surgeon, Patna is without jurisdiction and

withholding of 10% pension and entire amount of gratuity is not

sustainable in the eye of law. The petitioner cannot be held Patna High Court CWJC No.6451 of 2023 dt.17-08-2023

liable for taking any extra service from the cook namely Ashok

Kumar Dubey who was serving in the office of the

Superintendent, Infectous Disease Hospital, Agamkuan, Patna,

as admittedly petitioner is not his appointing authority.

5. Considering the fact that in absence of any

allegation of misrepresentation or fraud, being attributable to the

petitioner for taking extra work from cook namely, Ashok

Kumar Dubey, who was allowed to continue to work even after

retirement, without any objection whatsoever from the

competent authorities, it would be unfair and mala fide on part

of the authorities concerned to proceed against petitioner for the

irregularities in taking extra service from the cook. The law

relating to remaining in service for any period more than the age

of superannuation is no longer res integra. The Apex Court in

the case of State of Bihar & Ors. Vs. Pandey Jagdishwar

Prasad reported in (2009) 3 SCC 117 wherein it has been held

that recovery of salary was not permissible, because there was

no evidence that employee had made any misrepresentation or

committed any fraud due to which he continued beyond

retirement age. In the present case, petitioner has been penalized

for having taking extra job, when he is not even the appointing

authority to appoint cook.

Patna High Court CWJC No.6451 of 2023 dt.17-08-2023

6. The concerned authorities are directed to make

payment of retiral dues to the petitioner forthwith in accordance

with law within a period of three weeks. The Superintendent,

Infectous Disease Hospital, Agamkuan, Patna, Bihar is directed

to send the entire service record relating to the petitioner to the

competent authority without delay.

7. The writ petition, accordingly, stands disposed

of.

(Purnendu Singh, J)

Mantreshwar Minu/-

AFR/NAFR                N.A.F.R.
CAV DATE                N.A.
Uploading Date          24.08.2023
Transmission Date       N.A.