JUDGMENT Hon'ble Mr. Justice P.K. Musahary 1. The petitioner challenges the action of the respondent No. 3 in allegedly forcing him to apply for voluntary retirement on 17.9.2006 before completion of 20 years of qualifying length of service and also inaction on the part of the respondent No. 3 in not forwarding the application for withdrawal of voluntary retirement filed by the petitioner on 3.10.2006 addressed to the appointing authority and instead directing him to proceed on voluntary retirement. This petition is also directed against the action of the respondent No. 3 in withholding salary of the petitioner since July, 2006. 2. Some details of the relevant facts necessary for disposal of this petition are narrated hereunder. The petitioner was appointed on 31.10.1987 as Stenographer Grade-III on contract basis. He joined in the said post on 1.11.1987 and his service, as stated, was regularized by an order dated 3.3.1988 with effect from 1.11.1988. By order/notification dated 29.6.1990 the petitioner was promoted/appointed to the post of Stenographer Grade-I and was posted with effect from 26.10.1990 and attached to Deputy Commissioner, Kohima, Respondent No. 3, an IAS Officer, who joined in January, 2006. The said Deputy Commissioner directed the petitioner to attend phone calls at his official residence/ bungalow from 7.30 AM to 9.30 AM and after office hours till 8.30 pm. The petitioner expressed his inability to perform such duties beyond office hours. The Deputy Commissioner, then attached the petitioner to a Revenue Officer to which the petitioner raised objection saying that Revenue Officer was not entitled to service of a Grade-I Stenographer and accordingly, he made representation before the Deputy Commissioner, but his representation was not accepted. Thereafter, the petitioner applied for earned leave on 25.6.2006. He claimed that his leave was sanctioned for a period of three months and accordingly he proceeded on leave. He was not paid salary for the said leave period. He rejoined in service on 21.8.2006 by submitting a joining report but the same was not accepted by the respondent No. 3 who directed that the period from 22.5.2006 to 20.8.2006 be treated as "No wok no pay". Thus he was denied salary since July, 2006. 3. The petitioner tendered an unconditional apology on 6.9.2006 before the respondent No. 3 but it failed to evoke any response. Thus he was denied salary since July, 2006. 3. The petitioner tendered an unconditional apology on 6.9.2006 before the respondent No. 3 but it failed to evoke any response. The matter took serious turn when the respondent No. 3 allegedly got the petitioner put behind the lockup through police and got him tortured physically in the name of interrogation. The allegation goes to the extent that the police conducted search in the residence of the petitioner on 8.9.2006 and 10.9.2006 and seized several official documents and personal belongings. Furthermore, the petitioner was placed under suspension from 10.9.2006 at the instance of the respondent No. 3. It has been alleged that the respondent No. 3, by force, obtained from the petitioner a letter of apology and application for voluntary retirement due to eye problem. The respondent No. 3 referred the petitioner to a Medical Board of three doctors at Civil Hospital, Kohima on 22.9.2006 and obtained a certificate to the effect that the petitioner is completely and permanently incapacitated to render further service due to his eye defects without actually being examined by the said Medical Board. The petitioner was released on bail on 25.9.2006 and the order placing him under suspension was revoked on 26.9.2006. But at the instance of the respondent No. 5, the Jailor, at the time of release, issued a certificate stating that he was kept confined in the jail for a period from 12.9.2006 to 25.9.2006 and he was not let out of the jail during the said period. 4. The petitioner on 3.10.2006 applied for withdrawal of the application for voluntary retirement which was obtained from him by force on 17.9.2006 and 21.9.2006 but the said Respondent-Deputy Commissioner took no action in that regard. Subsequently, under the direction of the Respondent-Deputy Commissioner, the BSNL authorities disconnected the private telephone connection of the petitioner on 5.10.2006. Thereafter the respondent No. 3 called the petitioner to his residence on 2.11.2006 and directed him to sign papers relating to his voluntary retirement and also to obtain a medical certificate to the effect that he is not fit for any Government service and that he can proceed on voluntary retirement. He was also directed by the respondent No. 3 to vacate the official quarter by December, 2006. He was also directed by the respondent No. 3 to vacate the official quarter by December, 2006. At the instance of the Respondent-Deputy Commissioner, the respondent No. 5 escorted the petitioner on 30.11.2006 to the Chairman of the Medical Board, Kohima and obtained an invalidation certificate without even presenting the petitioner to undergo any medical test. Although, the suspension order was revoked, the petitioner was not allowed to rejoin to his duty nor was his salary released from July, 2006. 5. The respondents No. 1 to 5 filed a joint response to the writ petition denying the allegations made by the petitioner. It has been asserted in the counter affidavit that the petitioner refused to perform official duties as P.A. to the Deputy Commissioner hampering the official functioning of the respondent No. 3. It has been admitted by the respondent that the petitioner applied for earned leave but they denied that the leave applied for was ever sanctioned. They have also asserted that the leave cannot be claimed as a matter of right and the sanctioning authority may refuse or revoke any kind of leave. They also stated that the petitioner had, on his own accord, proceeded on leave without obtaining sanction from the authority concerned for which the period of absence from 22.6.2006 to 20.8.2006 has been treated as "No work no pay". The respondents in the counter affidavit say that no force was applied to obtain any application for voluntary retirement from the petitioner. It is rather stated that application seeking voluntary retirement alongwith medical certificate was submitted by the family members of the petitioner. As the petitioner has not rendered 20 years of service so as to qualify for voluntary retirement, he himself obtained the medical certificate for the purpose of taking voluntary retirement and as such his case was referred to the medical Board on 27.11.2006 for invalidation pension as per provision under Rule 38 of the CCS (Pension) Rules, 1972. When he came to know about the requirement of 20 years service for availing voluntary retirement, he could realize his mistake and begged written unconditional apology which was signed by himself and 9 witnesses including his parents, wife, brother-in-law etc. which is apparent from Annexure-VIII A to the writ petition. His intention of tendering apology was to save himself from invalidation pension as he was found medically unfit/invalid by the medical Board. 6. which is apparent from Annexure-VIII A to the writ petition. His intention of tendering apology was to save himself from invalidation pension as he was found medically unfit/invalid by the medical Board. 6. I have heard Mr. C.T.Jamir, learned senior counsel for the petitioner assisted by Mr. Wati Jamir, learned counsel for the petitioner. Also heard Mrs. Lucy, learned Govt. Advocate, Nagaland for respondents No. 1 to 5. 7. As per pleadings of the State Respondents, the petitioner committed misconduct by refusing to comply with the order of the Deputy Commissioner to attend his duties, which includes attending telephone calls at the official residence of the Deputy Commissioner beyond normal official duty period, which he was supposed to carry out being the P.A. of the Deputy Commissioner and by refusing to discharge duties while he was officially attached to the Revenue Officer in violation of the Deputy Commissioner's order saying that the Revenue Officer is not entitled to service of a Grade-I Stenographer and refusing to serve under the said Revenue Officer, attracted disciplinary action for misconduct under the Disciplinary & Appeal Rules. The petitioner was placed under suspension vide order dated 12.9.2006 (wrongly shown as 12.8.06) issued by the Deputy Commissioner, Kohima (Annexure-VII to the writ petition) due to alleged offence in connection with North Kohima P.S. Case No. 0118/06 u/ss 500/506 IPC which was under investigation/enquiry. It is to be noted that the aforesaid P.S. Case was registered on the basis of complaint lodged by the office of the Respondent No. 3 before the S.P., Kohima on 9.8.2006. There is no mention in the pleadings of the parties as to what happened to the aforesaid criminal case. Was it returned in FR or charge-sheeted ? No departmental proceeding was initiated against the petitioner and the said order placing the petitioner under suspension was admittedly revoked by the said Deputy Commissioner, Respondent No. 3 vide order dated 26.9.06 in exercise of power conferred u/s 6(5)(c) of the Nagaland Services Rules, 1967. With the revocation of the suspension order, there being no departmental proceeding pending against the petitioner, the petitioner should have been allowed to rejoin in his service. There is no pleadings in the writ petition that the petitioner, after revocation of the suspension order, wanted to resume his duties or he submitted rejoining letter before the respondent-authorities concerned. With the revocation of the suspension order, there being no departmental proceeding pending against the petitioner, the petitioner should have been allowed to rejoin in his service. There is no pleadings in the writ petition that the petitioner, after revocation of the suspension order, wanted to resume his duties or he submitted rejoining letter before the respondent-authorities concerned. It appears from the movement permit dated 7.12.2006 issued by the Deputy Commissioner, Kohima (XIX) that he was allowed to proceed to his home town Sivasagar in Assam on voluntary retirement. However, it appears that before issuance of aforesaid movement permit, the petitioner requested the Deputy Commissioner, Kohima for releasing his salary w.e.f. July, 2006 vide letter dated 29.11.2006. There is no mention that he, infact, rejoined his duties after revocation of the suspension order. There is no allegation from his end that the respondent-Deputy Commissioner or other authority ever prevented him from rejoining his duties or he was directed by any authority not to rejoin or go on voluntary retirement. The materials placed before this court do not indicate that the petitioner was forced to go on voluntary retirement. He was focusing his interest on the release of arrear salary from July, 2006. 8. From the pleadings of the petitioner it is quite evident that the petitioner, due to his strained relation with the respondent-Deputy Commissioner, was not mentally prepared to serve under him and under the Revenue Officer with whom he was attached to later on and compelled to work and he decided to go on voluntary retirement. The petitioner never insisted on initiation of departmental proceeding although serious allegation of misconduct was brought against him and an FIR was also lodged with police against him. At the same time, the allegation of misconduct on the part of the petitioner has not been proved or established as the department initiated no departmental proceeding against him. The department also remained complacent with the lodging of the FIR and placing the petitioner under suspension. Soon after withdrawal of the suspension order, since no departmental proceeding was initiated, the petitioner should have been allowed to rejoin. The department did not ask the petitioner to rejoin in his service. It is apparent from the stand taken by the respondent-authorities that the petitioner is not fit for service due to serious eye problem. Soon after withdrawal of the suspension order, since no departmental proceeding was initiated, the petitioner should have been allowed to rejoin. The department did not ask the petitioner to rejoin in his service. It is apparent from the stand taken by the respondent-authorities that the petitioner is not fit for service due to serious eye problem. The petitioner seriously disputes this allegation and claims that he is fit for the job as he is not suffering from serious eye problems. The interest of the petitioner as well as the respondent-authorities could be looked after or protected if the health condition or fitness of the petitioner is tested by a Medical Board because the question of allowing the petitioner to rejoin his service is dependent on his physical fitness. Once the petitioner is examined by a medical Board and a certificate/report is obtained on his physical fitness, respondent-authorities would be able to take a correct decision in regard to re-joining of the petitioner in his post and initiation of departmental proceeding to inquire into and obtain report on his alleged misconduct. However, it is the discretion of the respondent-authorities whether they should proceed against the petitioner by way of initiating departmental proceedings or they should exonerate him from the allegation. 9. The question of payment of back wage could be decided by the respondent-authorities concerned only after they take a final decision regarding initiation of departmental proceeding or exonerating him of the charges brought against him. The records of the department have not been placed before this court to verify whether the petitioner proceeded on leave before sanctioning the leave or the petitioner remained absent from duties without prior sanction from the authority concerned. For want of record, the court could not ascertain whether the petitioner applied for leave or whether his leave was considered and granted. All these facts must be verified from records before taking a decision by the department. The question of allowing or refusing back wages to the petitioner would depend on the finding from records as to whether the petitioner availed the leave without any sanction and he was absenting from duty in an unauthorized manner. If his absence is found to be unauthorized, the law would not permit payment of back wage to the petitioner. The question of allowing or refusing back wages to the petitioner would depend on the finding from records as to whether the petitioner availed the leave without any sanction and he was absenting from duty in an unauthorized manner. If his absence is found to be unauthorized, the law would not permit payment of back wage to the petitioner. On the other hand, if the petitioner's absence is found to be authorized and he was prevented from rejoining in the post after availing the duly sanctioned leave, he would be definitely entitled to back wage and other financial benefits. 10. In view of the above discussions, it is felt necessary to direct the Respondent No. 2, Principal Secretary to the Government of Nagaland, Kohima to constitute a Medical Board consisting of three senior medical officers, two of whom would be eye specialists from the Government Civil Hospital, Kohima, Nagaland who shall medically examine the petitioner, particularly his alleged eye problem and general health condition and submit a report to him. The petitioner shall be given notice or informed about the date, time and venue for his medical examination so that he can present himself before the medical board for necessary tests. On receipt of report from the medical Board, the Respondent No. 2 shall call for the connected records from the office of the Deputy Commissioner, Kohima, Nagaland and he shall personally examine /verify the same and take a decision on the matter particularly :- (i) rejoining of the petitioner on his duties, (ii) initiation of proceeding against the petitioner, (iii) exoneration from the allegations, and (iv) payment of back wages. 11. The entire process should be completed within a period of 60 (sixty) days from the date of receipt of the Medical Board's report. 12. With the aforesaid directions and observations, this petition stands disposed of.