Patna High Court
BiharversusDr. Shameem Shohreay Afaque
- Decided
- Disposal
- DISMISSED
Holding
The Letters Patent Appeal is dismissed; the Single Judge’s order granting full pension and 10% gratuity stands.
Summary
Dr. Shameem, a former health department employee, was on extended leave from 2003 to 2010 due to his wife's illness and was not served notice under Rule 76 of the Bihar Service Code for unauthorized absence. He later rejoined, was posted in 2012 and superannuated in 2019. The department initiated a departmental proceeding under Rule 43(b) of the Rules, 1950 in 2018, seeking to withhold his pension and 10% gratuity for the period of absence, but the alleged misconduct fell outside the four‑year limitation prescribed by Rule 43(b)(a)(ii). The Single Judge quashed the order withholding the pension and directed full payment of pension and gratuity. The State appealed by a Letters Patent Appeal, arguing errors in the Single Judge’s findings. The Division Bench held that the Single Judge’s factual findings were not perverse, the departmental proceeding was time‑barred, and therefore dismissed the appeal, leaving the order granting full pension and gratuity intact.
Issues considered
- Whether the departmental proceeding under Rule 43(b) of the Rules, 1950 is barred by the four‑year limitation for misconduct occurring between 2003 and 2010.
- Whether the pension and 10% gratuity can be lawfully withheld in the absence of a valid departmental proceeding and finding of grave misconduct.
- Whether the Single Judge erred in concluding that no notice under Rule 76 of the Bihar Service Code was served.
- Whether a Letters Patent Appeal can disturb the factual findings of the Single Judge.
Legislation cited
- Bihar Service Code — s. Rule 76
Subjects
- pension
- gratuity
- unauthorized absence
- departmental proceedings
- Rule 43(b)
- Rule 76
- time-bar
- letters patent appeal
- civil writ jurisdiction
- superannuation
- grave misconduct
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.621 of 2025
In
Civil Writ Jurisdiction Case No.51 of 2022
======================================================
1. The State of Bihar through Principal Secretary, Department of Health, Bihar,
Patna.
2. The Joint Secretary, Department of Health, Bihar, Patna.
3. The Director, Health Services Directorate, Bihar, Patna.
4. The Chief Medical Officer cum Civil Surgeon, Khagaria.
5. The Treasury Officer, Khagaria.
... ... Appellant/s
Versus
1. Dr. Shameem Shohreay Afaque Son of Choudhary Mushtaque Hassan,
Resident of Village- Choti Balia, Upper Tola P.S.- Balia, District- Begusarai.
2. Accountant General, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Behari Sinha, GA-8
Mr.Suryakant Kumar, AC to GA-8
For the Respondent No. 1 : Mr. Pankaj Kumar Sinha, Advocate
Mr. Rajiv Kumar Singh, Advocate
For the Respondent no. 2 : Mr. Ram Kinkr Choubey, SC IA & AD
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 19-01-2026
The Letters Patent Appeal has been filed by the State of
Bihar and Others, challenging the judgment dated 12.12.2024,
passed in CWJC No. 51 of 2022.
2. The aforesaid writ petition was filed by the Respondent
Dr. Shameem Shohreay Afaque with following prayer:-
“1. (A) A writ in the nature of Certiorari or any
other appropriate writ, order, direction quashing
the order dated 11.8.2021 as dispatched through
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Memo No. 589(9)/Swa. Patna dated 13.8.2021
showing No. Vividh-13-28/2018 (Swa)/Patna dated.
Stopping the payment of pension amount and 10%
amount of gratuity permanently.
(B) A writ in the nature of Mandamus or any other
appropriate writ, order, direction commanding the
respondents to act in accordance with law and
make payment of petitioner's pension and 10%
amount of gratuity.
3. After issuance of notice, the Respondents No. 1, 2 and 3
filed the counter affidavit. Another counter affidavit was also
filed by the Respondent No. 4. The learned Single Judge, after
hearing the learned counsel for the respective parties and going
through the averments taken in the writ petition as also in the
counter affidavit, has been pleased to hold as follows:-
“9. Having heard the learned counsel for the
respective parties and after meticulous examination of
the materials available on record, this Court finds
that admittedly the petitioner went on leave on
account of the serious ailment of his wife on
01.04.2003 and remained absent to 13.12.2010.
During the interregnum period, the petitioner has
neither been served with any notice nor any
proceeding has been initiated in terms of Rule 76 of
the Bihar Service Code. The petitioner has been
allowed to join in the Headquarter and later on he
was posted vide notification dated 30.06.2012 and
further he has been allowed to superannuate
unconditionally on 28.02.2019. The proceeding, if
any, for the charge of unauthorized absence, has been
initiated after the retirement of the petitioner under
Rule 43(b) of the Rules, 1950 by serving a copy of the
memo of charge with respect to an incident which
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took place in between 01.04.2003 and 13.12.2010.
Though, the petitioner in response to the memo of
charge has submitted his explanation and
participated in the proceeding under Rule 43(b) of the
Rules, 1950, however, the petitioner cannot be
precluded to challenge the proceeding, if the same is
wholly without jurisdiction.
10. Before parting with this case, it would be worth
benefiting to reproduce the prescriptions as provided
under Rule 43(b)(a)(ii), which reads as follows:
“43.(b) The State Government further reserve to
themselves the right of withholding or
withdrawing a pension or any part of it, whether
permanently or for a specified period, and the
right of order the recovery from a pension of the
whole or part of any pecuniary loss caused to
Government if the pensioner is found in
departmental or judicial proceeding to have been
guilty of grave misconduct; or to have caused
pecuniary loss to Government by misconduct or
negligence, during his service including service
rendered on re-employment after retirement;-
Provided that-
(a) such departmental proceedings, if not
instituted while the Government servant was on
duty either before retirement or during re-
employment.
(ii) Shall be in respect of an event which took
place not more than four years before the
institution of such proceedings;”
11. The issue with regard to the bar as provided under
Rule 43(b) of the Rules, 1950 has come up for
consideration before the Apex Court in State of Bihar
and Others v. Mohd. Idris Ansari [1995 Supp(3)
SCC 56]. The relevant part of paragraphs-7 and 10
are encapsulated herein below.
“7. A mere look at these provisions shows that
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before the power under Rule 43(b) can be
exercised in connection with the alleged
misconduct of a retired government servant, it
must be shown that in departmental proceedings
or judicial proceedings the government servant
concerned is found guilty of grave misconduct.
This is also subject to the rider that such
departmental proceedings shall have to be in
respect of misconduct which took place not more
than four years before the initiation of such
proceedings. It is, therefore, apparent that no
departmental proceedings could have been
initiated in 1993 against the respondent under
Rule 43(a) and (b), in connection with the alleged
misconduct, as it alleged to have taken place in
the year 1986-87. As the alleged misconduct by
1993 was at least six years' old, Rule 43(b) was
out of picture. Even the respondent authorities
accepted this legal position when they issued
notice dated 27-9-1993. It was clearly stated
therein that no action can be taken under Rule
43(b) of the Rules as the period of charges has
been old by more than four years. It is equally not
possible for the authorities to rely on the earlier
notice dated 17-10-1987 as proceedings pursuant
to it were quashed by the High Court in Writ
Petition No. 6696 of 1991 and only liberty
reserved to the respondent was to start fresh
proceedings. The High Court did not permit the
respondent to resume the earlier departmental
inquiry pursuant to the notice dated 17-10-1987
from the stage it got vitiated. The respondent also,
therefore, did not rely upon the said notice dated
17-10-1987 but initiated fresh departmental
inquiry by the impugned notice dated 27-9-1993.
Consequently it is not open to the learned
advocate for the appellant to rely upon the said
earlier notice dated 17-10-1987.
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10. So far as the second type of cases are
concerned the proof of grave misconduct on the
part of the government servant concerned during
his service tenure will have to be culled out by the
revisional authority from the departmental
proceedings or judicial proceedings which might
have taken place during his service tenure or from
departmental proceedings which may be initiated
even after his retirement in such type of cases. But
such departmental proceedings will have to
comply with the requirements of Rule 43(b).
Consequently a retired government servant can be
found guilty of grave misconduct during his
service career pursuant to the departmental
proceedings conducted against him even after his
retirement, but such proceedings could be initiated
in connection with only such misconduct which
might have taken place within 4 years of the
initiation of such departmental proceedings
against him. In the present case, the respondent
retired on 31-1-1993 and the show-cause notice
was issued on the ground of grave misconduct on
27-9-1993 and not on the ground that service
record of the pensioner was not thoroughly
satisfactory. It was issued by the State
Government as sanctioning authority. It had,
therefore, to be read with Rule 43(b). Such notice
therefore, could cover any misconduct if
committed within 4 years prior to 27-9-1993
meaning thereby it should have been committed
during the period from 26-9-1989 up to 31-1-1993
when the respondent retired. Only in case of such
a misconduct, departmental proceedings could
have been initiated against the respondent under
Rule 43(b)………..”
12. Further, Rule 76 of the Bihar Service Code,
nonetheless, empowers the competent authority to
remove a government servant, who has remained
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absent from his post continuously for more than five
years but such order of removal/dismissal cannot be
validly passed without any departmental proceeding
and giving proper opportunity of hearing to the
concerned government servant. Had the respondents
so sanguine about the unauthorized absence of the
petitioner, they should have been immediately
proceeded against the petitioner in a valid
departmental proceeding and pass appropriate order
in accordance with law, much less before the
petitioner has been allowed to superannuate on
28.02.2019.
13. Now coming to the impugned order, which speaks
that had the department been knowing the fact of
unauthorized absence of the petitioner, he would have
been certainly dismissed from service, but since the
petitioner has already superannuated and has been
allowed 90% Gratuity, in such circumstances, full
pension and 10% of Gratuity may be withheld; this
observation of the disciplinary authority is in the
opinion of this Court, is wholly unsustainable in facts
and the law. The materials available on record speaks
otherwise. Not only the joining of the petitioner was
accepted on 14.12.2010, he was posted vide order
dated 30.06.2012 and allowed to superannuate on
28.02.2019. Further, even if, for the sake of argument,
it is accepted that the respondents have resorted the
proceeding rule 43(b) of the Rules, 1950, there is no
finding with regard to any pecuniary loss caused to
the government or the petitioner is found to have been
guilty of grave misconduct in a departmental or
judicial proceedings.
14. Having considered the admitted facts and the
settled legal position, this Court finds that the very
initiation of the departmental proceeding against the
petitioner under rule 43(b) of the Rules, 1950 with
respect to an event which took place in between
01.04.2003 and 13.12.2010, is wholly time barred in
terms of rule 43(b)(a)(ii) and, as such, this Court has
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no hesitation to set aside the impugned order dated
11.08.2021 as contained in Memo No. 589(9) dated
13.08.2021 (Annexure-21 to the writ petition).
4. The learned Single Judge passed the direction directing
the respondent authorities to ensure full pension and 10 per cent
gratuity amount within a period of 12 weeks from the date of
receipt / production of the copy of the order. It is submitted by
the Ld. Counsel for the Appellants that the learned Single Judge
was not justified in observing that the petitioner has neither been
served with any notice nor any proceeding has been initiated in
terms of Rule 76 of the Bihar Service Code and that he was
allowed to superannuate on un-conditionally on 28.2.2019.
5. It is the contention of the learned counsel for the
appellants that the proceeding was initiated against the
Respondent on 15.3.2018, which was admittedly before the date
of the superannuation of the Respondent, however this Court
finds that no such specific stand has been taken in the counter
affidavit and no document thereto has been annexed to show
that the petitioner was served with any notice of the proceeding
in terms of the relevant Rules, as pointed out by the learned
Single Judge. This belated plea taken by the learned counsel for
the appellants cannot be entertained at this stage.
6. We further find that in view of paragraph no. 4 of the
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memo of appeal, the submission which is advanced by the
learned counsel for the appellants is not acceptable. Paragraph
no. 4 of the appeal memo reads as follows:-
“4. That before Health Department's resolution
bearing Memo No.1259(9) dated 23.09.2019 for
initiation of departmental proceeding could be
issued on the basis of memo of charge dated
15.03.2018, the petitioner superannuated from
service w.e.f. 28.02.2019.”
7. A Letters Patent Appeal, as permitted under the Letters
Patent, is normally an intra-Court appeal whereunder the Letters
Patent Bench, sitting as a Court of Correction, corrects its own
orders in exercise of the same jurisdiction as was vested in the
Single Bench. Such is not an appeal against an order of a
Subordinate Court. In such appellate jurisdiction, the High
Court exercises the powers of a Court of Error. (Ref: (1996) 3
Supreme Court Cases 52, Baddula Lakshmaiah -Vrs. Shri
Anjaneya Swami Temple). The Division Bench in Letters Patent
Appeal should not disturb the finding of fact arrived at by the
learned Single Judge of the Court unless it is shown to be based
on no evidence, perverse, palpably unreasonable or inconsistent
with any particular position in law. This scope of interference is
within a narrow compass. Appellate jurisdiction under Letters
Patent is really a corrective jurisdiction and it is used rarely only
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to correct errors, if any made.
8. In the case of B. Venkatamuni -Vrs.- C.J. Ayodhya Ram
Singh, reported in (2006) 13 Supreme Court Cases 449, it is
held that in an intra-court appeal, the Division Bench
undoubtedly may be entitled to reappraise both questions of fact
and law, but entertainment of a letters patent appeal is
discretionary and normally the Division Bench would not,
unless there exist cogent reasons, differ from a finding of fact
arrived at by the Single Judge. Even a Court of first appeal
which is Court of appeal on fact may have to exercise some
amount of restraint. Similar view was taken in the case of
Umabai -Vs.- Nilkanth Dhondiba Chavan, reported in (2005) 6
Supreme Court Cases 243.
9. In the case of Management of Narendra & Company
Pvt. Ltd. Vs. Workmen of Narendra & Company, reported in
(2016) 3 Supreme Court Cases 340, while considering the
scope of the intra-Court appeal, the Hon'ble Supreme Court has
held that in an Intra-Court appeal, on a finding of fact, unless
Appellate Bench reaches a conclusion that finding of the Single
Judge are perverse, it shall not disturb the same. Merely because
another view or a better view is possible, there should be no
interference with or disturbance of the order passed by the
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Single Judge, unless both sides agree for fairer approach on
relief.
10. In essence, a Letters Patent Appeal provides internal
check and balance, ensuring judicial accountability and
oversight and protects citizens rights allowing for a more
thorough review of a Single Judge's decision.
11. After hearing the learned counsel for the respective
parties and in view of the settled position of law, we find no
perversity in the impugned judgment dated 12.12.2024 passed in
CWJC No. 51 of 2022 and therefore, we are not inclined to
grant any relief to the appellants in this Letters Patent Appeal.
12. Accordingly, the Letters Patent Appeal stands dismissed.
(Sangam Kumar Sahoo, CJ)
(Mohit Kumar Shah, J)
S.Sb/-Ajay
AFR/NAFR
CAV DATE N/A
Uploading Date 20.01.2026
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