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2012 DIGILAW 1426 (JHR)

Ramakant Dubey v. State of Jharkhand

2012-09-20

APARESH KUMAR SINGH

body2012
JUDGMENT Heard learned counsel for the parties. 2. The petitioner has approached this Court in the year 2009 by way of the present writ application for directing the respondents to pay all the Post Retiral benefits to the petitioner. According to the petitioner, he was appointed sometime in the year 1967 on the post of Superior Field Worker in the office of Anti Malaria Officer, Malaria Eradication Unit, Hazaribagh. In the year 1979, he became a victim of Schizophrenia and went on leave for his treatment by giving information to his erstwhile Controlling Officer at Chatra Block. However, the documents pertaining to information given to the Block Medical Officer, Chatra for leave admittedly is not available with the petitioner. It is further submitted that the petitioner after being cured from the said ailment in the year 1985, submitted his application on 13.02.1985 for acceptance of his joining before the Block Medical Officer, Chatra, enclosing the copy of Medical Certificate of Government Doctor of RMCH, Ranchi dated 12.02.1985. 3. The petitioner by way of series of representations which are annexed as Annexure3 Series, submits that till 2008 he has been representing before the different officials of the Health Department including District Malaria Officer, Hazaribagh, State Malaria Officer, Jharkhand, Secretary, Department of Health, Medical & Family Welfare, Government of Jharkhand to accept his joining as he could not resume his duty for a period of about six years form 25.10.1979 to 12.02.1985 and thereafter due to nonacceptance of his joining he could not resume his duty till the date of his retirement. According to the petitioner he retired on 31st December, 2008. Learned counsel for the petitioner submits by reference to Annexure 10 of the writ petition dated 11.12.2007 issued by the State Malaria Officer, Jharkhand, Ranchi that it has been noted in the said letter that no departmental proceeding was ever initiated against him for his dismissal from service. However, by the said letter, it is evident that for the period 12.2.1985 to 2004 there is no information available in the office of the District Malaria Officer, Chatra as against the contention of the petitioner that he had been regularly representing for joining. However, by the said letter, it is evident that for the period 12.2.1985 to 2004 there is no information available in the office of the District Malaria Officer, Chatra as against the contention of the petitioner that he had been regularly representing for joining. Learned counsel for the petitioner submits that under Rule 76 of the Bihar Service Code now adopted by Jharkhand Service Code before removing the petitioner from service due to continued absence for more than 5 years proper disciplinary proceedings ought to have been initiated under the relevant Rules which has not been done in the case. 4. Learned counsel for the petitioner has also relied upon the judgments delivered by a Single Bench of this Court reported in 2003(3) JLJR 472 in the case of Krishna Mahto Vs. State of Jharkhand and another and another reported in 2004 (2) PLJR 209 in the case of Raj Nath Rai Vs. State of Bihar, submits that this Court had in similar circumstances, held that if the petitioner was unauthorizedly absent from duty for more than 5 years and the State Government intended to remove him from service they could so after following the procedures laid down under Civil Services ( Classification, Control and Appeal) Rules 1935 as per Rule 76 (b). It is further submitted by the learned counsel for the petitioner that during the pendency of the writ application the respondents have rejected the representation of the petitioner by order contained in Memo No. 213(II) Ranchi dated 10th June passed by DirectorinChief, Health Service, Jharkhand. It is submitted that the order for rejection of the representation of the petitioner seeking his joining and other retirement benefits is not proper in law. 5. Learned counsel for the respondents, on the other hand, submits that the petitioner after 1979 has disappeared without any notice or information to the department. His contention that he was on leave is not substantiated by any documentary evidence showing leave application before competent authority which has also been admitted by the petitioner also. It is further submitted that Rule 76 (b) is specifically applicable in cases where a government servant does not resume duty after remaining on leave for a continuance period of 5 years, or after expiry of his leave remains absent from duty. It is further submitted that Rule 76 (b) is specifically applicable in cases where a government servant does not resume duty after remaining on leave for a continuance period of 5 years, or after expiry of his leave remains absent from duty. It is further submitted that in the present case, even the contention of the petitioner that he tried to submit his joining before the Block Medical Officer, Chatra, is not supported by any documentary evidence. 6. It is further submitted that the petitioner approached the respondent only in the year 2006 as is obvious from a reading of the Memo dated 10th June, 2010 contained at AnnexureA to the counter affidavit whereafter the matter was inquired into with all diligence and the DirectorinChief, Health Service after inquiry from the State Malaria Officer, has come to a definite conclusion that the petitioner remained out of service voluntarily for more than 27 years since 1979 and wherafter he has sought his joining. In the aforesaid order, it has also been taken into account that the petitioner has not submitted any cogent medical proof of a mental hospital or specialist medical officer having qualification and experience in dealing with Psychiatric problem rather the alleged certificate of a doctor in the branch of medicine has been submitted by him which cannot be relied to give him any service benefits at such late point of time. It has been submitted that the judgments relied by the petitioner were rendered in the case of employee, who has proceeded on leave and thereafter absented from duty 7. Having heard learned counsel for the parties and gone through the relevant material on record, it is apparent that on the own admission of the petitioner he has remained out of service since September, 1979 without any leave sanctioned by the competent authority and only in the year 2006 on his representation after almost 27 years the respondents departments undertook an exercise to examine the matter and after obtaining necessary report from the State Malaria Officer, Jharkhand, Ranchi, vide Annexure10, the order dated 10.6.2010 was passed by the DirectorinChief Medical services holding that the claim of the applicant for his joining, cannot be accepted as he has remained out of service without information or permission from the department since 1979. The contention of the petitioner that he has submitted his joining in the year 1985 is not supported by any document. If the petitioner had any grievance, he could have approached the appropriate Forum including this Court at any point of time, but has filed this writ application in the year 2009 after 30 years since he left the service, which clearly appears to be a case of abandonment of service voluntarily on the part of the petitioner may be on account of some disease, in such circumstance, Rule 76 has no application. According to the petitioner, he retired on 31st December, 2008, but there are no official documents or records from the side of the petitioner to substantiate that he had actually retired in the year 2008. The benefits of post retirement dues are available to an employee, who superannuate after discharging his duty for a length of time under the employer Government. 8. In this case, the petitioner has remained absent from duty since 1979 without any leave or permission and has come before this Court after 30 years therefore this writ petition also suffers from gross delay and latches. In such circumstances, in exercise of the discretionary jurisdiction, no relief can be granted to the petitioner. The writ petition is accordingly dismissed.