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2021 DIGILAW 600 (PAT)

Om Prakash Lal v. State Of Bihar

2021-07-07

CHAKRADHARI SHARAN SINGH

body2021
JUDGMENT 1. The matter has been taken up for hearing online because of COVID-19 pandemic restrictions. 2. It is the petitioner's case, as pleaded in the writ application, that he was appointed in Bihar Health Service in 1988. By an order dated 29.06.2002, he was posted at Primary Health Centre, Rohtas. The said place of posting, according to the petitioner, was immensely disturbed those days, when the doctors were threatened to pay ransom else they would be killed. He, admittedly, did not join his place of posting. According to him, he was depressed and had fallen sick. His father also went in depression, which were the additional reasons why he could not join his place of posting. Nearly one and half years thereafter, he filed a representation before the Civil Surgeon-cum-Chief Medical Officer, Rohtas at Sasaram making a request to transfer him to a different place. After considering his physical condition and that of his father the petitioner was deputed at Bhemkarup in Nasriganj Block. A copy of the order dated 16.12.2003 has been annexed as Annexure-1 to this application, from which it appears that the Civil Surgeon, while deputing the petitioner to additional Primary Health Centre, Bhemkarup, directed the Incharge Medical Officer, Nasriganj to ensure payment of his salary and emoluments on the basis of attendance details. 3. Considering the adverse situation, the Civil Surgeon stayed the earlier order of the petitioner's transfer and sanctioned payment of salary for the period during which he had remained absent. It was also mentioned in the said order dated 16.12.2003 that the petitioner shall take necessary steps for sanction of leave for the period during which he had remained absent from duty with supporting documents. Soon thereafter, a new incumbent joined as Civil Surgeon and cancelled the petitioner's deputation at Additional Primary Health Centre, Bhemkarup and asked the petitioner to join at Rohtas PHC. The petitioner was relieved on 28.02.2004 by the Incharge Medical Officer, PHC, Nasriganj, accordingly, for him to join at Rohtas PHC. 4. The petitioner, thereafter, represented to Respondent No. 4 stating that he was unwell and was undergoing treatment at Apolo Hospital, New Delhi and was advised to undergo various tests. The petitioner was relieved on 28.02.2004 by the Incharge Medical Officer, PHC, Nasriganj, accordingly, for him to join at Rohtas PHC. 4. The petitioner, thereafter, represented to Respondent No. 4 stating that he was unwell and was undergoing treatment at Apolo Hospital, New Delhi and was advised to undergo various tests. His wife had also developed glaucoma and was suspected of breast cancer and accordingly he requested the Civil Surgeon to grant him leave by an application, which has been brought on record by way of Annexure-3 to this application. The said representation, a copy of which has been annexed as Annexure-3 to this application, does not bear any date. 5. As the petitioner did not join the place of his posting, a departmental proceeding was proposed to be initiated against him. 6. The petitioner has stated in the writ application that a Division Bench of this Court had also taken cognizance of the then prevailing situation in the State of Bihar and had proceeded against the Government officials to provide adequate security to the doctors. 7. On 08.03.2006, the Regional Deputy Director, Health Services, Patna came out with a notice directing the petitioner to join the respective place of his posting within 15 days. The petitioner again represented through his letter dated 21.03.2006, which has been brought on record by way of Annexure-5 to this application, asserting that there was threat to his life and, therefore, he could not join Rohtas PHC. The said representation at Annexure-5 is also undated. 8. Since the petitioner did not join, a departmental proceeding was initiated against him with the issuance of charge-sheet on 15.03.2007. The Enquiring Authority submitted his report on 11.12.2009, holding the charge against the petitioner of having remained absent unauthorisedly proved. The inquiry report was supplied to the petitioner for seeking his response through letter dated 30.03.2012. The petitioner is said to have submitted his reply on 04.06.2013. In the meanwhile, by a fresh resolution dated 26.04.2013, an additional charge was framed against the petitioner as he was found absent from duty till the date of issuance of the said resolution dated 26.04.2013. It was mentioned in the charge memo that a case for dismissal of service under Rule 76 of Bihar Service Code was made out as the petitioner had remained absent unauthorisedly for nearly nine years. It was mentioned in the charge memo that a case for dismissal of service under Rule 76 of Bihar Service Code was made out as the petitioner had remained absent unauthorisedly for nearly nine years. The Enquiring Authority held the charge against the petitioner of his unauthorized continuous absence from duty as not proved primarily on the basis that in the earlier departmental proceeding no final decision was taken and he remained absent from 28.02.2002 to 14.02.2006 because of the then prevailing circumstances for which he was not to be blamed. The Enquiring Authority also noted that when the petitioner attempted to submit his joining on 05.06.2006, the Civil Surgeon, Rohtas had refused to accept his joining. He recorded that the petitioner remained waiting for posting right from 2004 as a result of procedural delay. 9. The Disciplinary Authority, differing with the report of the Enquiring Authority, sent to the petitioner proposed notes of disagreement with the said finding and asked the petitioner to submit his response. The tentative notes of disagreement have been brought on record by way of Annexure-13 to this application. Petitioner submitted his response through letter dated 20.02.2018 (Annexure-14) supporting the finding recorded by the Enquiring Authority dated 30.10.2017. 10. At this stage, I must take note of a peculiar aspect of the report of the Enquiring Authority (Annexure-12), which bears the signature of the Enquiring Authority put on 30.10.2017, whereas the said report has been shown to have been issued on 23.10.2017. 11. The petitioner filed this application on 24.09.2020 seeking following reliefs :- "(i) The departmental proceeding against the petitioner be quashed. (ii) During the pendency of this writ application, impugned proceeding may be stayed. (iii) The respondents may be directed to pay the salary due to the petitioner sine June 2002. (iv) Any other relief or reliefs to which the petitioner is found to be entitled to in the facts and circumstances of the case. " 12. From the counter affidavit filed on behalf of the State of Bihar it transpired that an order of dismissal from service was passed on 24.06.2020 by the Health Department, Government of Bihar after obtaining concurrence from Bihar Public Service Commission. In the aforesaid background, the petitioner sought amendment in the writ application for challenging the order of dismissal from service by filing LA. No. 01 of 2020, which was allowed by an order dated 26.03.2021. 13. In the aforesaid background, the petitioner sought amendment in the writ application for challenging the order of dismissal from service by filing LA. No. 01 of 2020, which was allowed by an order dated 26.03.2021. 13. The petitioner has thus challenged the order of dismissal from service dated 24.06.2020 and is seeking a direction for payment of salary since June 2002. 14. In the counter affidavit, it has been stated that the order of dismissal from service has been passed after following due procedure of law prescribed under Bihar Government Servants (Classification, Control and Appeal) Rules, 2005. It has been stated that the petitioner's reply to the tentative notes of disagreement was duly considered by the Department before passing the impugned order. 15. Mr. Shravan Kumar, learned Senior Counsel appearing on behalf of the petitioner has vehemently argued that the period during which the petitioner was posted at Rohtas PHC had witnessed serious law and order situation in the State and there were instances of kidnapping of doctors for ransom because of which the petitioner did not join. He has referred to a Division Bench order of this Court dated 08.12.2003, passed in CWJC No. 1311 of 2003 to convince this Court that the petitioner had rightly considered it unsafe for him to join at Rohtas PHC. He has submitted that, as a matter of fact, the petitioner was willing to join but he was not allowed to join the place of posting by the then Respondent No. 4. 16. Mr. Pankaj Kumar, learned SC-12, supporting the action of the respondents in imposition of punishment of dismissal from service, has contended that there is no legal or procedural infirmity in the impugned action of the State and in such circumstance this Court may refuse to interfere with the impugned order. 17. I have carefully perused the pleadings on record with the documents annexed thereto. It is the petitioner's own case that he was relieved by the Incharge Medical Officer, Nasriganj to join his place of posting at Rohtas PHC on 28.02.2004. He worked at Bhemkarup PHC from December 2003 to 28.02.2004, admittedly, prior thereto he was absent from 29.06.2002 on the plea of several inconveniences which he was facing because of family problems, ailments and law and order situation in the State of Bihar. He worked at Bhemkarup PHC from December 2003 to 28.02.2004, admittedly, prior thereto he was absent from 29.06.2002 on the plea of several inconveniences which he was facing because of family problems, ailments and law and order situation in the State of Bihar. There is no statement in the writ petition that he made any attempt to join the place of his posting after he was relieved on 28.02.2004. 18. I have noticed hereinabove that the petitioner's representations annexed as Annexures- 3 and 5 are undated. It is not the case of the petitioner that no other doctor and any employee was posted at Rohtas PHC. 19. On close scrutiny of the documents relating to disciplinary proceeding, I do not find any procedural irregularity up to the stage of issuance of tentative notes of disagreement issued by the Department differing with the report of the Enquiring Authority. The said tentative notes of disagreement contain specific reasons as to why the finding recorded by the Disciplinary Authority was not acceptable to the Disciplinary Authority. However, from the impugned order, I notice that the same does not disclose application of mind as to why the petitioner's reply to the tentative notes of disagreement was not acceptable. 20. Normally, on the ground of non-application of mind, I would have quashed the impugned order of dismissal from service and would have remanded the matter back to the Disciplinary Authority for passing an order afresh, but in the peculiar facts and circumstances of the case, which have been extensively taken note of, I am not inclined to do so, exercising discretionary power under Article 226 of the Constitution of India. However, at the same time, it cannot be disputed that it is the statutory duty of the Disciplinary Authority under the Rules to record reasons as to why the petitioner's reply against the tentative notes of disagreement were not acceptable and why finding of Enquiring Authority, holding the charge against the petitioner not proved, could not be accepted by the Disciplinary Authority. 21. Thus, without interfering with the impugned order, in the peculiar facts and circumstances as noted above, Respondent No. 2 is directed to supply to the petitioner the reasons as to why the petitioner's reply to the tentative notes of disagreement were not acceptable to the Disciplinary Authority within one month from today. 21. Thus, without interfering with the impugned order, in the peculiar facts and circumstances as noted above, Respondent No. 2 is directed to supply to the petitioner the reasons as to why the petitioner's reply to the tentative notes of disagreement were not acceptable to the Disciplinary Authority within one month from today. The petitioner shall be at liberty to question the correctness of such finding before appropriate forum in accordance with law. 22. This application stands disposed of with the aforesaid observation and direction.