IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8223 of 2007 Akshay Kumar, S/o late Kedar Nandan Singh, Resident of Village + P.O. Jhunathi, P.S. Kinger, Dist. Arwal. --------- Petitioner Versus 1. The State of Bihar through the Secretary, Health and Family Welfare, Govt. of Bihar, Patna. 2. The Director-in-Chief, Health Service, Health Department, Govt. of Bihar, Patna. 3. The Regional Deputy Director, Health Service, Magadh Division, Gaya. 4. The Civil Surgeon-cum-Chief Medical Officer, Arwal, Dist. Arwal. --------- Respondents ----------- 2 26.09.2011 Heard Mr. Dinu Kumar, learned counsel for the petitioner and counsel for the State. Mr. Kumar as with regard to the following relief:- “1(A) For directing the respondents to accept the joining of petitioner to the post of Basic Health Worker in Health Services. (B) For directing the respondents to allow the petitioner to function as Basic Health Worker and make payment of salary to the said post.” has fairly and in fact correctly submitted that even if the petitioner was absent from duty from 1988 and could submit his joining report at the place of posting on 20.12.2006, the authorities were required to at least take a decision specially when the service of the petitioner was not terminated during the 2 period of his absence of eighteen years. Counsel for the State would however submit that no such representation of the petitioner for acceptance of his joining was received in the office of the Civil Surgeon, Arwal and the information of the writ application alone became the basis for examining the claim of the petitioner and since the petitioner’s appointment was made in the then Jehanabad district in the year 1976 and he had also abandoned the service in the year 1988 at a point of time Arwal district was not in existence, nothing could be done at the level of Civil Surgeon, Arwal as with regard to the ventilation of either of the two grievances of the petitioner. Counsel for the petitioner in reply submits that despite knowledge of petitioner reporting on duty no decision has been taken by any of the authority of the Health Department till date and the petitioner, even after submission of his joining report on 20.12.2006 at his last place of posting has neither been assigned duty nor has been paid salary from December 2006. 3 In the considered opinion of this Court, the issue, like the present one, ought to have referred to by the Civil Surgeon, Arwal district to the Director-in-Chief for taking a final decision. Unauthorized absence from duty by itself is a misconduct but, then, a person can be removed from service only after conducting a departmental proceeding. Therefore, even if the joining of the petitioner was not accepted till initiation and conclusion of the departmental proceeding, the authorities were required to at least initiate a proceeding after the petitioner had submitted his joining report on 20.12.2006 or soon thereafter. Assuming that the petitioner’s joining report was never filed in the office of the Civil Surgeon, Arwal and that he could get knowledge of such claim of the petitioner only on receipt of the copy of this writ application, he could still have referred the matter to the Director-in-Chief or could have initiated a departmental proceeding in a period of last four years, while this application had remained pending. 4 Be that as it may, the petitioner claims that he has still one year service left before reaching his age of normal superannuation and that even before his unauthorized absence, he had served the department for a period of nearly twelve years which by itself could give him a right to earn proportionate pension and other admissible retirement benefit. In view of the aforementioned facts, it would be necessary for the Director-in-Chief Health Services to take a final decision in respect of the petitioner strictly in accordance with law and if he finds that the petitioner’s service have not yet been terminated, he would also be at liberty to direct the competent authority to initiate a departmental proceeding as with regard to the misconduct of unauthorised absence of the petitioner for long eighteen years, so that a final decision either way in the case of the petitioner is taken prior to reaching his date of superannuation. Such an exercise, therefore must be completed by the Director-in-Chief of the 5 Health Department within a period of three months from the date of receipt/production of a copy of this order so that the departmental proceeding, if initiated against the petitioner could conclude in next six months of such an order of the Director-in-Chief, Health Services. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)