IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5566 of 2009 SMT.SHAKUNTALA GHOSH Versus THE STATE OF BIHAR & ORS ----------- 2. 1.05.2009 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner superannuated from service on 31.8.1996 from the post of Auxiliary Nurse Midwife. During the period 19.3.1982 to 8.4.1991 she remained waiting for posting. Wages remained due for the period. She came to this Court in CWJC No. 7160 of 2000 when her pension and other benefits were not paid apart from arrears of salary for the aforesaid period. Disposing the writ application on 11.3.2002 this Court noticed that “it is submitted by the learned State Counsel that though he made several attempts to get instruction from the respondent authorities but proved futile and as such no counter affidavit could be filed in the case”. This Court noticed that sanction for the aforesaid payment existed but payment was being denied. It was her specific case therein that there were no proceedings against her. The Court therefore directed that the arrears of salary be paid within the period specified. When this was not done she came in MJC No. 2125 of 2002 for non compliance. The respondents then relied on an order dated 2.12.2003 and submitted that during the period 19.3.1982 to 8.4.1991 she was absent from the headquarters as evident from the letter of the Civil Surgeon cum Chief Medical Officer, Munger dated 5.10.2002.The Court 2 therefore held that contempt proceeding could not be agitated and matter was to be considered in a fresh writ petition. The petitioner who is now 71 years of age is still seeking justice and has come back to the Court again. On record is a letter no. 275 dated 8.3.1997 at Annexure 8 also issued by the Civil Surgeon cum Chief Medical Officer confirming that the petitioner was waiting for posting between the period 19.3.1982 to 8.4.1991 and was present at the headquarters. She was entitled to her salary for the period. This certification was being made from the records of the Civil Surgeon cum Chief Medical Officer, Munger. The Incharge Medical Officer, Laxmipur on 19.1.1994 has reiterated the aforesaid situation in his communication appended at Annexure 9. It is indeed surprising that the Civil Surgeon cum Chief Medical Officer passes a fresh order on 2.12.2003 virtually contrary to his own earlier order dated 8.3.1997. He chooses not to deal with it because he finds it uncomfortable. The fact that the order dated 8.3.1997 is stated to be made from the record has not been controverted in the latter. In absence of proper consideration of the order dated 8.3.1997 the later order dated 2.12.2003 becomes arbitrary, On the previous occasion also the respondents had chosen to file no counter affidavit when the Court in exasperation gave direction to consider payment It appears that the respondents are trying to take advantage of their own acts in not having filed counter affidavit on the previous occasion seeking a loop hole in the orders of this Court, to subject the petitioner to further harassment. 3 The order dated 2.12.2003 is set aside and the matter is remanded to the respondent no. 2 the Secretary cum Commissioner, Department of Health, Medical Education and Family Welfare, Government of Bihar. This Court requires him to grant personal hearing to the petitioner and then pass a reasoned and speaking order on the claim of the petitioner in light of letter no. 275 dated 8.3.1997 of the Civil Surgeon cum Chief Medical Officer as also the order of the Incharge Medical Officer dated 19.1.1994 in that regard. If respondent no. 2 proposes to deny relief to the petitioner he shall be required to pass a reasoned and speaking order but only after furnishing materials to the petitioner on basis of which the benefits given to the petitioner by order dated 8.3.1997 and 19.1.1994 is sought tobe withdrawn, with opportunity to meet the same. In the event that the respondent no. 2 finds justification in the claim of the petitioner not only shall the arrears be paid but the arrears shall carry interest @ 5 % per annum from the date that it became due till the date of actual payment. The payment shall forth with be made by the Government. Respondent no. 2 shall then proceed to initiate an administrative enquiry for fixation of responsibility. The amount of interest shall be recovered from the delinquent concerned in this administrative enquiry after issuance of show cause, quite apart from the issue of the need for initiation of a regular departmental proceeding against such concerned delinquent. The distinction between the two shall be maintained by respondent no. 2 as the 4 former shall result in a minor punishment which need not follow after regular departmental proceeding which may be done for a major punishment, under the Service Rules or Pension Rules, as the case may be. Let the order on the aspect of payment to the petitioner be complied within a maximum period of two months from the date of receipt and/or production of a copy of this order. Let respondent no. 2 file an affidavit of compliance affirmed by himself, when the matter shall be listed after two months, for that limited purpose. Snkumar/- (Navin Sinha,J.)