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2012 DIGILAW 940 (PAT)

Asha Rani v. State Of Bihar

2012-07-06

RAVI RANJAN

body2012
Oral ORDER Petitioner seeks quashing of the resolution as contained in Memo No.566 (9) dated 06.07.2009 issued under the signature of Joint Secretary, Health, Govt. of Bihar, respondent no.5 whereby, the petitioner has been dismissed from service by way of punishment granted in terms of Rule 76 of Bihar Service Code. 2. Petitioner was appointed as Medical Officer and was posted at Referral Hospital, P.P. Pro, Farbisganj, Araria. She was served with memo of charges for her unauthorized absence from service for more than five years. Show cause was submitted by the petitioner and, thereafter, inquiry was held and order of dismissal has been passed by the State authority. The Memo of Charge has been appended as Annexure-7 to writ petition and Annexure- A to the counter affidavit filed on behalf of the State. 3. Limited issue has been raised on behalf of the petitioner that from perusal of the inquiry report, which has been appended as Anenxure-17 and also Annexure-C to the counter affidavit, it appears that the same is merely abstract of the file of the proceeding and there is absolutely lack of any discussion or any finding recorded on the explanation given by the petitioner. Petitioner’s case has been recorded in the inquiry report only to the extent that she had gone on leave on 20.01.1996 after submitting the application for leave for several reasons including kidnapping of her brother, treatment of her husband and son who had been operated in the year 1998. She has finally given her show cause on 09.07.2002 before the Commissioner-cum-Secretary. Thereafter, it has been recorded that the charges framed upon the petitioner has been found to be proved. There is not even a brief of discussion as to why explanation given by the petitioner has not been found fit to be accepted or what are the reasons for its rejection. Learned counsel has placed reliance upon a decision of this Court dated 03.12.2010 passed in C.W.J.C. No.2218 of 2010 in the case of Dr. Akhilesh Kumar, i.e., the husband of the petitioner who was also served with charge-sheet under the same letter. 4. Counter affidavit has been filed on behalf of the State and a ground has been taken that the disciplinary proceeding has been done in accordance with law. Akhilesh Kumar, i.e., the husband of the petitioner who was also served with charge-sheet under the same letter. 4. Counter affidavit has been filed on behalf of the State and a ground has been taken that the disciplinary proceeding has been done in accordance with law. The petitioner was served with the charges and the inquiry was conducted by the officer who was appointed by the competent authority. Thereafter, after serving the second show cause notice, order of dismissal has been passed and concurrence to that extent has also been given by the Bihar Public Service Commission. 5. However, learned counsel for the State has miserably failed to demonstrate from the inquiry report that the inquiry has been conducted in accordance with law as none of the issues raised by the petitioner has been discussed or answered or rejected by the inquiry officer after recording any finding upon it. Learned counsel has placed reliance upon a decision of Hon’ble Supreme Court in Aligarh Muslim Universiy and others Versus Mansoor Ali Khan (2000)7 Supreme Court Cases 529 to impress upon this Court that after the admitted absence of more than five years, the petitioner would be deemed to have resigned and ceased to be in service and, thus, she was not even required to served with a show cause notice as has been held by the Apex Court in the aforesaid case. 6. This Court would not be in agreement with the aforesaid proposition. In Aligarh Muslim University and others (supra) the Apex Court has passed the order considering the Rule 10(c)(i) & (ii) of Aligarh Muslim University Non-Teaching Employees (Terms and Conditions of Service) Rules, 1972 which enumerates the situation in which an employee, if had remained absent for a period exceeding than maximum, i.e, 5 years, he should be deemed to have resigned and ceased to be in service. However, the case of the petitioner would be governed by Rule 76 of the Bihar Service Code which clearly provides that if the Government servant does not resume duty after remaining on leave for a continuous period of more than five years, or after the expiry of leave remains absent from the duty then he or she could be removed from service after following the procedure laid down in the Civil Service (Classification, control Appeal) Rules 1930 that includes a proper inquiry by the competent authority. For better appreciation relevant Rule 76 (b) is quoted as under: “76 (b) Where a Govt. servant does not resume duty after remaining on leave for a continuous period of 5 years, or where a Government servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him, exceeds a continuous periods of 5 years, he shall unless the State Government otherwise determine be removed from service after following the procedure laid down in the Civil Service (Classification, Control Appeal) Rules and the Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935.” 7. Learned counsel for the State is not in a position to deny the aforesaid facts as the earlier provision under Rule 76 to the effect that the absence for more than five years would amount to automatic cessation of service was declared to be ultra vires by a Division Bench of this Court rendered in Sobhana Das Gupta V. State of Bihar & another, {1974 PLJR 382}. Thus, at the relevant time undisputedly the disciplinary proceeding was to be concluded in terms of the provision of Civil Services (Classification, Control Appeal) Rules, 1930 and Bihar Orissa Subordinate Services (Discipline Appeal) Rules, 1935. 8. Therefore, in my considered opinion, the proper inquiry in terms of the aforesaid rules was sine qua non if the petitioner was to be imposed any major punishment including dismissal from the service. From perusal of the inquiry report, it does not appear that the inquiry has been conducted properly as has been observed above and appears that merely a formality has been done as no finding has been recorded on the issues raised by the petitioner, thus, the same can easily be termed as perfunctory and mockery of an enquiry. In above view of the matter, this Court has no other option than to set aside the order of dismissal as the same is based upon such a perfunctory inquiry. As a result, the impugned order dated 06.07.2009 as contained in Annexure- 14 is hereby quashed and set aside. In above view of the matter, this Court has no other option than to set aside the order of dismissal as the same is based upon such a perfunctory inquiry. As a result, the impugned order dated 06.07.2009 as contained in Annexure- 14 is hereby quashed and set aside. However, the mater is remitted back to the authorities to appoint another Enquiry Officer, who will conduct a fresh enquiry in accordance with law and the Rules extensively laid down in the C.C.A. Rules, 2005 as the earlier Rules now stands substituted by new Rules, namely, Bihar Government Servants (Classification, Control & Appeal) Rules, 2005. It goes without saying that the payment of arrears of salary of the petitioner would be subject to the final result of the departmental proceeding. 9. Accordingly, this writ application stands allowed to the extent as indicated above.