IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13965 of 2009 1. Bechan Ram S/O Late Mathuri Ram R/O Quarter No. B/134 (Housing), Shivkund Lohiya Nagar, Kankarbagh Colony, Patna, P.S. Kankarbagh, Distt. Patna Versus 1. The State Of Bihar Through The Chief Secretary Govt. Of Bihar, Patna 2. The Principal Secretary Deptt. Of Labour Employment And Training, State Of Bihar, Patna 3. The Principal Secretary Finance Deptt., Govt. Of Bihar, Old Secretariat, Patna 4. The Accountant General Bihar And Jharkhand, Birchand Patel Path, Patna 6/ 16/08/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is stated to have superannuated on 30.9.2003 from the post of Deputy Labour Commissioner (Agriculture and Labour). He is aggrieved by the order dated 6.12.2006 denying him earned leave for a period of 69 days and which has been adjusted against extra ordinary leave causing him pecuniary loss. Learned counsel for the petitioner submits that initially earned leave was denied for the aforesaid period by order dated 12.6.2004. The petitioner came to this Court in C.W.J.C. No.3031/05. This Court directed re- consideration of his representation in view of his claim that he has sufficient number of leave to his credit for adjustment against earned leave. 2 Learned counsel for the petitioner submits that availability of earned leave is not in dispute. The respondents have opined that the petitioner proceeded on leave in an improper manner evident of his negligence and self conceited attitude. He has obtained information under the R.T.I. Act appended at Annexure- 3, confirming that he had duly informed the authorities of his wife’s illness for the first such absence from 8.1.2001 to 22.1.2001. Again for the absence from 9.7.2002 to 31.7.2002 he had furnished medical documents of treatment. In response to the queries made from him by the then Commissioner-cum- Secretary he had submitted his reply also. The submission therefore is that if he furnished a defence the defence was required to be considered by a reasoned and speaking order and not at the ipse dixit of the respondents. Learned counsel for the State relied upon Rule- 152 of the Bihar Service Code to urge that leave could not be claimed as a matter of right. The petitioner could not have submitted applications and proceeded on leave at his discretion without sanction. Therefore the decision to adjust it against his extra ordinary leave. The counter affidavit filed by one Shri Ashok Kumar Singh, Chief Commissioner, Labour Resources 3 Department is unfortunate, to say the least. If only the deponent would have bothered to go through the pleadings in the writ application properly including the information furnished to the petitioner under the R.T.I. Act, he would not have taken the stand in paragraph-9 that they were only official notings and therefore of no relevance. File notings may not furnish a cause of action by itself, but if the file notings reflect an incomplete application of mind acknowledging a defence taken but refusing to consider it, that defence is not available to sustain what is otherwise a patently arbitrary action. Leave is not a matter of right, but if a government employee proceeds on leave and claims to have given intimation which is not denied, the question that surfaces is that if the defence taken by him for the leave is acceptable or not. If it is not acceptable and is rejected by a reasoned and speaking order, the authorities may proceed against him and/or adjust it against extra ordinary leave. But if the government servant furnishes grounds, the ground has either to be accepted or rejected by a reasoned and speaking order and not at the whims and caprice of the officials concerned. The file notings reflect that the petitioner had furnished grounds with supporting documentary 4 evidence. There is no finding in the file notings that the grounds taken by him were false and that it was not acceptable along with reasons in support of the same. If without rejecting the defence taken by him the respondents thrust upon him the adjustment of the aforesaid period against extra ordinary leave even while there may be sanctioned leave available to his credit, visiting him with adverse civil consequences the action becomes arbitrary and unsustainable. The impugned order dated 13.2.2008 is therefore not sustainable and is set aside. In absence of any clear finding that 69 days’ earned leave was not available to his credit, there shall be a presumption that it was available and the petitioner is entitled to adjustment against the same. If any deductions have been made by adjusting the same against extra ordinary leave, the amount is directed to be refunded to him within a maximum period of 8 weeks from the date of receipt/presentation of a copy of this order. The writ application stands disposed. KC ( Navin Sinha, J.)