JUDGMENT : With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. 2. In compliance of order of dated 23.06.2021, explanation has been submitted by Dealing Assistant and Section Officer as also by the Assistant Registrar of the concerned Section. 3. Perused the explanation. 4. Let the Registrar General examine the matter as to whether any existing rule or precedence of scrutiny of supplementary affidavit filed subsequently is there or not or whether the same could be placed before the Bench without examining as to whether there is some defect in the affidavit or not? Thereafter, place the matter before the Chief Justice on the administrative side for taking appropriate decision in this regard. L.P.A. No. 381 of 2020 5. The instant intra-court appeal is preferred against the order/judgment dated 03.11.2020 passed by learned Single Judge in W.P. (S) No. 395 of 2020, whereby and whereunder the learned Single Judge refused to interfere with order dated 23.06.2017, by which the application of the writ petitioner seeking Voluntary Retirement has been rejected; as also order dated 03.08.2017 whereby departmental proceeding was initiated against the petitioner and order dated 09.10.2019 whereby the writ petitioner was dismissed from services. 6. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are as under: The writ petitioner was appointed as Civil Assistant Surgeon (Medical Officer) on 22.04.1990 on the recommendation being made by Bihar Public Service Commission and pursuant thereto he joined as Medical Officer at Additional Primary Health Centre, Karaikela (Bandgaon), Chaibasa, West Singhbhum. During his service tenure, the writ petitioner was posted at different places and finally he was posted as Medical Officer (Anaesthetist), Sadar Hospital, Ranchi, where he joined on 12.10.2004 and worked till 02.06.2006. Thereafter, the petitioner proceeded on extraordinary leave by submitting application dated 02.06.2006 mainly on the ground of total disablement of his father, which was duly received and acknowledged by the office of Deputy Secretary of the Department. In continuation of his application, the petitioner again submitted application dated 29.08.2007 for extension of extraordinary leave. Thereafter, the petitioner proceeded on extraordinary leave by submitting application dated 02.06.2006 mainly on the ground of total disablement of his father, which was duly received and acknowledged by the office of Deputy Secretary of the Department. In continuation of his application, the petitioner again submitted application dated 29.08.2007 for extension of extraordinary leave. In response thereto, the writ petitioner received instruction from Civil Surgeon, Ranchi vide letter dated 16.10.2007 to join at Head Quarter (Department of Health, Medical Education and Family Welfare) and submit application for extension to the Department itself with further direction not to make any correspondence to the Civil Surgeon, Ranchi in this regard in future. The writ petitioner again submitted application dated 02.06.2008 to the Joint Secretary for extension of leave as also application dated 29.05.2008 to the Civil Surgeon, Ranchi for extension of leave. It is contended that the writ petitioner did not receive any response to the aforesaid leave applications and as such he finally made an application on 16.10.2015 under Rule 74 (b) of the Jharkhand Service Code (hereinafter referred to as “Code”) for voluntary retirement. The writ petitioner having not received any response to his application for voluntary retirement moved before this Court by filing writ petition, being W.P. (S) No. 676 of 2019 but during pendency of that writ petition the writ petitioner was dismissed from services vide order dated 09.10.2019 and in that view of the matter, the writ petition was withdrawn by taking liberty to challenge the dismissal order. Pursuant thereto, the writ petitioner has again approached this Court by filing W.P. (S) No. 395 of 2020. According to writ petitioner, he was on leave and finally on 16.10.2015 filed an application for voluntary retirement in terms of Rule 74(b) of the Code, which provides that within a period of three months from the date of submitting such application the decision is to be taken by the competent authority and if no decision is taken by the competent authority of the State Government it will be deemed that permission for voluntary retirement has been accorded. According to writ petitioner since he had filed application on 16.10.2015 and as such after expiry of period of three months, he will be deemed to have been separated from service by way of voluntary retirement and, therefore, initiation of departmental proceeding by virtue of resolution dated 03.08.2017 and consequential order of dismissal from services vide order dated 09.10.2019 is not sustainable in the eye of law. 7. The respondents-State appeared before the writ Court and filed counter affidavit stating inter alia therein that the interpretation of the writ petitioner that since he had filed application under Rule 74(b) of the Code and after expiry of the period of three month he will be deemed to have retired from service is wrong interpretation as provision of Rule 74 does not stipulates to that effect and the writ petitioner since did not resume his duty fairly for a period of more than 10 years as such departmental proceeding was initiated, in which, the writ petitioner appeared before the enquiry officer wherein all the charges leveled against the writ petitioner were proved and in consequence thereof, he was dismissed from services. 8. The writ Court, after appreciating the arguments advanced on behalf of the parties dismissed the writ petition vide order dated 03.11.2020, which is the subject matter of instant intra-court appeal. 9. We have heard Ms. Amrita Vijai, learned counsel for the petitioner and Mr. Navneet Toppo, A.C to learned S.C. V for the respondents-State and perused the documents available on record. 10. 9. We have heard Ms. Amrita Vijai, learned counsel for the petitioner and Mr. Navneet Toppo, A.C to learned S.C. V for the respondents-State and perused the documents available on record. 10. Learned counsel for the appellant-writ petitioner has submitted that once the application under Rule 74 (b) of the Code was filed, immediately after expiry of period of three months from the date of submission of such application the writ petitioner will be deemed to have retired from service under voluntary retirement in view of provision of Rule 74 (b) of the Code and as such any order passed by the authority, either initiating the departmental proceeding on the ground of unauthorized absence or violation of the order passed by the competent authority or the order of dismissal, is not sustainable in the eye of law as once he has been deemed to have retired from services in terms of provision of Rule 74 (b) of the Code, there will have no relationship of employer and employee between the appellant-writ petitioner and the respondents-State and as such the State Government being an employer after his separation from service cannot pass order of dismissal by initiating departmental proceeding. 11. While on the other hand, Mr. Navneet Toppo, A.C to learned S.C. V appearing for the respondents-State of Jharkhand has submitted that it is the case where the writ petitioner has questioned the rejection of his application dated 16.10.2015 filed under the provisions of Rule 74 of the Code as such the writ Court ought not to have entertained this prayer mainly for the reason that it is admitted case of the writ petitioner that for non-consideration of his case so far as it relates to the application filed under the provision of Rule 74 (b) of the Code is concerned, writ petition being W.P.(S) No. 676 of 2019 was filed but during its pendency the writ petitioner was dismissed from services and therefore, he sought for liberty to challenge the order passed by the authority dismissing him from service, as would be evident from order dated 21.01.2020 passed by Co-ordinate Single Bench of this Court in W.P.(S) No. 676 of 2019, as appended as Annexure 10 to the writ petition. He further submits that so far as the legality and propriety of the order of termination is concerned the writ petitioner had unauthorizedly absented himself from service fairly for a long period of ten years and taking into consideration the fact that he was working as medical officer, a doctor, such type of violation of government order and unauthorized absence was treated to be a serious misconduct on the part of the writ petitioner and therefore, the departmental proceeding was initiated in which the writ petitioner participated and inquiry officer found the charges to be proved against the writ petitioner and thereafter the order of dismissal from service was passed. According to him, there is no error apparent on the face of record so far as the order of termination is concerned and as such this Court under Article 226 of the Constitution of India may not exercise the power of judicial review by looking into the legality and propriety of the order of dismissal. 12. This Court having heard learned counsel for the parties and on perusal of the documents available on record has found therefrom that the writ petitioner has mainly raised two issues; first pertains to the issue of voluntary retirement in terms of provision of Rule 74(b) of the Code and second pertains to the legality and propriety of the order of dismissal. 13. So far as the first issue i.e., the issue of voluntary retirement in terms of provision of Rule 74(b) of the Code, is concerned it is the admitted case of the writ petitioner that he had made an application dated 16.10.2015 for voluntary retirement under the provisions of Rule 74(b) of the Code and when according to writ petitioner it was not considered by the authority, he filed a writ petition being W.P.(S) No. 676 of 2019, but during pendency of the writ petition the writ petitioner was dismissed from service vide order dated 09.10.2019 after culmination of departmental proceeding initiated vide order dated 03.08.2017 and, therefore, the writ petitioner withdrew the writ petition with liberty to challenge the order of dismissal. For ready reference, order dated 21.01.2020 passed in W.P. (S) No. 676 of 2019 is quoted hereunder as: “After some arguments, learned counsel for the petitioner submits that during the pendency of the writ petition, petitioner has been dismissed from the service and as such, he wants to withdraw the writ petition, with liberty to challenge the dismissal order. Learned counsel for the respondents has no objection to the said withdrawal. Permission, as sought for, is granted. Accordingly, the writ petition is dismissed as withdrawn, with the liberty aforesaid.” It is, thus, evident that the writ petitioner withdrew the writ petition which pertains to questioning Rule 74(b) of the Code. Admittedly, the writ petitioner was dismissed from service during pendency of the aforesaid writ petition and, therefore, the writ petition was withdrawn by taking liberty to challenge the dismissal order. It is settled position of law that the second writ petition is not maintainable that too after its withdrawal, but there is exception to that. The second writ petition can be maintainable if such withdrawal is with liberty to challenge the aforesaid order. In absence of such liberty, second writ petition is not maintainable. Reference in this regard may be made to the judgment rendered by Hon’ble Apex Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior [ (1987) 1 SCC 5 : AIR 1987 SC 88 ]. In the said judgment, the ratio has been laid down that after withdrawal of the writ petition, second writ petition is not maintainable without taking leave from the Court. The principle regarding maintainability of the writ petition has been laid down at paragraph 9 of the said judgment, which is quoted hereunder as: “9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. But we are of the view that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdraw-al does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open. We, however leave this question open. But, from perusal of impugned order dated 03.11.2020, it appears that the learned Single Judge has also proceeded to examine the issue pertaining to Rule 74 (b) of the Code, however, according to considered view of this Court, the learned Single Judge ought to have taken into consideration the maintainability of the issue in view of the fact that the writ petitioner had withdrawn the writ petition being W.P. (S) No. 676 of 2019 vide order dated 21.01.2020 in order to challenge the dismissal order but there was no liberty to question the issue of voluntary retirement as per provisions of Rule 74(b) of the Code, as such the second writ petition will not be maintainable as per the position of law, as referred hereinabove but the learned Single Judge has also deliberated upon the issue which according to us is uncalled for as the learned Single Judge ought to have rejected the contention of the writ petitioner for the reason as referred herein above. In view thereof, we are of the considered view that the learned Single Judge, by not considering the effect of withdrawal of the writ petition, being W.P. (S) No. 676 of 2019, has committed error by entertaining the issue relating to provision of Rule 74(b) of the Code. However, the aforesaid issue has not been questioned by the respondents-State of Jharkhand, but since we are sitting under Article 226 of the Constitution of India and are scrutinizing the legality and propriety of the order passed by the learned Single Judge under intra-court appeal, which is the continuation of the original proceeding as conferred to the learned Single Judge under Article 226 of the Constitution of India, therefore, it is our bounden duty to rectify the order passed by learned Single Judge. Accordingly, we in exercise of said power hold that part of the order passed by learned Single Judge to be not correct. 14. So far as the second issue - legality and propriety of the order of dismissal is concerned, it is admitted fact herein that the writ petitioner remained unauthorizedly absent from duty since 13.10.2005. Accordingly, we in exercise of said power hold that part of the order passed by learned Single Judge to be not correct. 14. So far as the second issue - legality and propriety of the order of dismissal is concerned, it is admitted fact herein that the writ petitioner remained unauthorizedly absent from duty since 13.10.2005. Further admitted fact is that the leave was not sanctioned and the State authority after taking into consideration the nature of duty which the writ petitioner was discharging has decided to initiate a departmental proceeding by framing charge, as would be evident from enquiry report annexed as Annexure C to the counter affidavit filed in writ petition, which reads as under: vkjksi la[;k&01 inLFkkiu LFky lnj vLirky] jkaph ls fnukad 13-10-2005 ls fcuk l{ke Lrj ls vodk'k Lohd`r djk, yxkrkj vius dÙkZO; LFky ls vuf/kd`r :i ls vuqifLFkrA vkjksi dk fooj.kh& inLFkkiu LFky lnj vLirky] jkaph ls fnukad 13-10-2005 ls fcuk l{ke Lrj ls vodk'k Lohd`r djk, yxkrkj vius dÙkZO; LFky ls vuf/kd`r :i ls vuqifLFkrA vkjksi la[;k&02 mPpkf/kdkjh ¼flfoy ltZu½ ds funsZ'k dh vogsyukA^^ vkjksi dk fooj.kh& mPpkf/kdkjh ¼flfoy ltZu½ ds funs'k dh vogsyukA vkjksi la[;k&03 ;g d`R; dÙkZO; ds izfr ykijokgh ,oa vuq'kklughurk dk |ksrd gSA vkjksi dk fooj.kh& ;g d`R; dÙkZO; ds izfr ykijokgh ,oa vuq'kklughurk dk |ksrd gSA In the departmental proceeding, the writ petitioner was directed to appear before the enquiry officer. In pursuance thereto, he appeared before the enquiry officer and contested the proceeding by putting forth his defence before the enquiry officer but as per the enquiry report, which has been appended in the counter affidavit filed on behalf of respondent-State in the writ petition, we have found that all the charges leveled against the writ petitioner were found proved and thereafter, the disciplinary authority considering the reply furnished by the writ petitioner dismissed him from service vide order dated 09.10.2019. 15. Before looking into the legality and propriety of the impugned order, we deem it fit and proper to have a discussion with respect to power of judicial review of this Court under Article 226 of the Constitution of India, as has been decided by Hon’ble Apex Court in Union of India Vs. 15. Before looking into the legality and propriety of the impugned order, we deem it fit and proper to have a discussion with respect to power of judicial review of this Court under Article 226 of the Constitution of India, as has been decided by Hon’ble Apex Court in Union of India Vs. P. Gunasekaran [ AIR 2015 SC 545 ] wherein at paragraph 13, following guidelines has been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision, which reads hereunder as: “13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience.” Further, the Hon’ble Apex Court in Management of State Bank of India vs. Smita Sharad Deshmukh and Anr. [ (2017) 4 SCC 75 ], has laid down that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence. The Hon’ble Apex Court in the case of Central Industrial Security Force and Ors. vs. Abrar Ali reported in AIR (2017) SC 200, has laid down the guidelines at paragraph 8 showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, which is quoted herein below: “8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : ( AIR 2011 SC 1931 , Para 6), this Court held as follows: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 this Court held as follows: "12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (a) the inquiry is held by a competent authority; (b) the inquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; 13.(i) the finding of fact is based on no evidence. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience." 16. In the given facts of the case, we find that the writ petitioner admittedly absented himself unauthorizedly from service since 13.10.2005. The department authority initiated a departmental proceeding by framing charge containing therein several charges, as referred hereinabove. In pursuance thereto the writ petitioner defended the charges by putting forth his defense before the enquiry officer. It is further evident that the writ petitioner was provided with all reasonable opportunity to defend himself but the enquiry officer found the charges proved, which was finally accepted by the disciplinary authority, who passed the order of dismissal vide order dated 09.10.2019. 17. It is further evident that the writ petitioner was provided with all reasonable opportunity to defend himself but the enquiry officer found the charges proved, which was finally accepted by the disciplinary authority, who passed the order of dismissal vide order dated 09.10.2019. 17. The writ petitioner’s only contention is that since he is deemed to have retired from service immediately after expiry of 90 days period from the date of submission of application dated 16.10.2015 for voluntary retirement under Rule 74(b) of the Code, there does not exist any relationship of employer and employee in between the respondents and writ petitioner, as such order of dismissal is without jurisdiction. Save and except this ground no other ground has been raised by the writ petitioner in support of his case showing the reason for not resuming the duty. Since we have already discussed hereinabove that the issue pertaining to provision of Rule 74(b) should not have been considered by the learned Single Judge, in view of detailed reason referred as above, we are not considering that ground to look into the legality and propriety of the order of dismissal. So far as the reason shown by the learned counsel for the writ petitioner for not resuming the duty, according to us has been well discussed by the authority and we cannot delve upon by substituting our view which has already been expressed by the administrative authority, as per the settled position of law, as referred herein above since the writ petitioner has failed to make out a case of interference under the power of judicial review under Article 226 of the Constitution of India as per the guidelines stipulated by Hon’ble Apex Court in the judgments referred hereinabove more particularly taking into consideration the nature of allegation which pertains to unauthorized absence by the writ petitioner for a period of more than 10 years and without sanction of the leave which as per the relevant Conduct Rule is a gross misconduct. 18. In view thereof, we are in conformity with the finding recorded by the learned Single Judge so far it relates to interference with the order of dismissal. 19. Accordingly, the present intra-court appeal fails and, is dismissed.