IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9032 of 2004 DR.SMT.REKHA SINHA, WIFE OF DR. SUNIL KUMAR SINHA, CIVIL ASSISTANT SURGEON/MEDICAL OFFICER, WOMEN’S HOSPITAL, SULTANGANJ, DISTRICT BHAGALPUR, RESIDENT OF BANKA, P.S. BANKA, DISTRICT BANKA. ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR. 2. COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF HEALTH, MEDICAL EDUCATION AND FAMILY WELFARE, GOVERNMENT OF BIHAR, PATNA. 3. UNDER SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. REGIONAL DEPUTY DIRECTOR, HEALTH DEPARTMENT, BHAGALPUR DIVISION, BHAGALPUR. 5. CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, BHAGALPUR. ------------------------------------------------------------------------------------------------ RESPONDENTS ********* 3 2.12.2010 Petitioner was posted as a Medical Officer in a Women Hospital at Sultanganj. While she was posted at Sultanganj, she got sunstroke on 22.5.2002 and had to be shifted to Bhagalpur for treatment. On the next very day i.e. on 23.5.2002, she applied for leave for a period of five days. Her leave application was considered by the Civil Surgeon-cum-Chief Medical Officer, Bhagalpur and he recommended that the petitioner should be granted leave for the period between 23.5.2002 to 29.5.2002 vide memo no. 29 dated 5.8.2002. The matter was sent to the Director, Health Department as well as to the Private Secretary of the Minister for consideration. No adverse order was passed 2 either by the Minister concerned or by the Director, Health Department, rejecting her leave application. Petitioner was put under suspension as she was absent on the date on which the Minister visited the hospital at Sultanganj and as such a departmental proceeding was initiated against her. The enquiry report is annexed as Annexure-8 by which the Regional-cum-Deputy Director, Health Service, Bhagalpur found that the allegation that the petitioner was absent without taking leave is not substantiated against the petitioner. The enquiry report was placed before the State Government. The State Government without issuing any show cause to the petitioner differed from the enquiry report and inflicted punishment of stoppage of two increments. The petitioner filed an appeal against the order contained in Annexure-9 which was rejected without assigning any reason. Thereafter the petitioner filed a writ application numbered as CWJC No. 11082 of 2003. This Court quashed Annexure-9 inflicting punishment on the petitioner on the ground that it was a 3 non-speaking order and remitted the matter back to the appellate authority. The appellate authority vide Annexure-12 has upheld the order passed earlier. Learned counsel for the petitioner submits that the said order was passed by the appellate authority without issuing any notice to the petitioner or giving her an opportunity to explain and produce the documents. This Court on considering the order contained in Annexure-12 finds that the order has been passed without giving an opportunity of hearing to the petitioner and is also factually incorrect. Normally the Court does not interfere on the factual aspects in the departmental proceeding, unless extreme circumstances are brought to the notice of the court. This is one such case where this Court feels that it would be proper to comment on the factual aspect of the order as well. There is no doubt about the fact that the petitioner had fallen sick on 22.5.2002 and had to be shifted to Bhagalpur to be treated for sunstroke. It is factually undisputed that the petitioner 4 filed her application for leave from 23.5.2002 to 29.5.2002 along with the prescriptions and medical certificate. The Civil Surgeon-cum-Chief Medical Officer, Bhagalpur recommended that she should be granted leave on the ground that she had fallen sick. The recommendation made by the Chief Medical Officer has not been rejected by any higher authority and, therefore, it is not reasonable to say that the petitioner was absent without an application for leave. The petitioner had asked for leave from 23.5.2002 to 29.5.2002. If any authority or Officer felt that the grounds stated for grant of leave are frivolous, the leave should have been rejected forthwith. It is not proper that the authority should sit over such matters and not consider the leave application for months together. In this case, however, the leave application was considered and a recommendation was also made in favour of the petitioner, as such it cannot be held that the petitioner was absent without an application for leave or was purportedly absent from duty for some frivolous reason. In these circumstances, I 5 find that it would serve no useful purpose to remand the matter back on the ground that the petitioner should be given opportunity as factually this Court does not agree with the reasoning contained in Annexure-12. I may also state here, that the impugned order also refers to a letter numbered as 2942 dated 24.11.2003 which apparently indicates that even after the order of suspension was revoked, the petitioner had not joined on the post concerned. This aspect of the matter cannot be taken into consideration in the impugned order. Neither the charge framed in the enquiry nor was there an enquiry with respect to this allegation and, therefore, the petitioner could not have had any opportunity to reply to the allegation as stated in letter no. 2942 dated 24.11.2003. Considering all the facts aforesaid, I quash Annexure-9 dated 23.5.2003 and Annexure-12 dated 1.7.2004. This writ application is allowed. Sanjay ( Sheema Ali Khan, J.)