IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5579 of 2007 Dr. Nirmala Kumari Gupta, W/o Sri Amar Nath Gupta, Resident of Village Vadash, Thana-Sadar, Dist. Khagaria at present posted as Civil Assistant Surgeon, Munger Sadar Hospital, Munger. --------- Petitioner Versus 1. The State of Bihar through the Health Commissioner cum Secretary, Government of Bihar, Patna. 2. Additional Secretary, Health, Education and Family Planning Department, Bihar, Patna. 3. Civil Surgeon cum Chief Medical Officer, Sadar Hospital, Munger. 4. Secretary cum Commissioner, Department of Finance, Government of Bihar, Secretariat, Patna. ---------- Respondents ----------- 3 26.08.2011 Having heard learned counsel for the parties and taking into account that the learned counsel for the petitioner has given up the original prayer of the petitioner as with regard to payment of arrear of sanctioned leave from 1.6.1997 to 7.3.2001 as also grant of her promotion in view of notification of her first A.C.P. with effect from 4.3.2003 and has only assailed the impugned order (Annexure-7), a notification dated 21.4.2008 (Annexure-7) in I.A. No. 1228/2009, this Court is of the considered opinion that the impugned order is by way of review of an order of punishment already passed against the petitioner on 13.4.2006 (Annexure-2) which cannot be sustained either on fact or in law inasmuch as a break-in- service has been caused therein for the 2 period of unauthorized absence of the petitioner i.e. from 1.6.1997 to 22.6.2001. Mr. Sujit Kumar Sinha, learned counsel for the petitioner, is infact absolutely correct in pointing out that the petitioner was subjected to a proceeding only by way of a show-cause notice dated 7.3.2001 as with regard to her unauthorized absence for the period 1.6.1997 to 27.6.2001 and when the petitioner had filed her explanation, the competent authority had passed the order dated 13.4.2006 (Annexure-2) by inflicting a punishment of censure and warning and had also communicated that the period of unauthorized absence shall be regularized as per the admissible leave and, therefore, the order of punishment dated 13.4.2006, as contained in Anenxure-2, could not have been reviewed by issuing the impugned order dated 21.4.2008 (Annexure-7), whereby and whereunder, even after granting her extraordinary leave, a break-in-service was caused in terms of Rule 101 of the Bihar Pension Rules. Learned counsel for the State would submit that as the Finance Department had given its opinion, the same was binding on 3 the Health Department and it could not have taken a different view and the order dated 21.4.2008, reviewing the earlier order dated 13.4.2006, has been issued only in terms of the opinion given by the Finance Department. In the considered opinion of this Court, a final order of punishment passed in disciplinary proceeding already communicated to the government servant cannot be altered/changed/enhanced merely on the opinion of the Finance Department, inasmuch as, such a final order inflicting certain punishment is not capable of being reviewed. Here in this case, the petitioner was subjected to a minor penalty proceeding and was inflicted with the punishment of censure and warning by an order dated 13.4.2006 (Annexure-2) and that order reading as follows:- fcgkj ljdkj Lok0fp0f'k0 ,oa i0d0 foHkkxA vf/klwpuk iVuk] fnukad 13-4-06 la[;k 9@vk0 & 4&29 @ 2005 402 ¼9½ @ Lok0 Mk0 fueZyk dqekjh xqIrk] efgyk fpfdRlk inkf/kdkjh] lnj vLirky] eqaxsj ds fo:n~/k fnukad 1-6-97 ls fnukad 7-3-2001 rd vukf/kd`r vuqifLFkfr ds vkjksi gsrq izkIr Li"Vhdj.k ij lE;d leh{kksijkUr Hkfo"; esa lps"V jgus ,oa psrkouh ds n.M ds lkFk fu;ekuqdwy NqV~Vh fofu;fer djus dk vkns'k fn;k tkrk gSA fcgkj jkT;iky ds vkns'k ls g0@& ij'kqjke feJ] ljdkj ds mi lfpoA Kkikad 402¼9½ @Lok0 iVuk] fnukad 13-4-06 4 could not have been reviewed by any mode even in view of the subsequent opinion of the Finance Department. It is true that the respondents in view of the order dated 13.4.2006 were at liberty to regularize the period of unauthorized absence of the petitioner and to that extent, they could have even granted extraordinary leave, if no other leave was admissible to the petitioner but, then, nothing else could have been done, much less, causing the petitioner break in service which is the purport of the impugned order dated 21.4.2008 which reads as follows:- fcgkj ljdkj LokLF; foHkkx vf/klwpuk la[;k % 9@vk0&4&29@05 469¼9½ @Lok0 iVuk] fnuakd 21-4-08 LokLF; foHkkx vf/klwpuk Kkikad 402¼9½ fnukad 13-4-06 ds }kjk ¼Jherh½ fueZyk dqekjh xqIrk] efgyk fpfdRlk inkf/kdkjh] lnj vLirky] eqaxsj ds fo:n~/k fnukad 01-06-97 ls 22-06-01 rd dh vukf/kd`r ls vuqifLFkfr ds fy, Li"Vhdj.k izkIr dj lE;d :i ls leh{kksijkUr Mk0 ¼Jherh½ xqIrk dks Hkfo"; esa lps"V jgus ,oa psrkouh ds lkFk fu;ekuqdqy N`V~Vh fofu;fer djus dk vkns'k fn;k x;k FkkA vc foRr foHkkxh; ijke'kZ ds vkyksd esa iqu% lE;d fopkjksijkUr Mk0 ¼Jherh½ xqIrk ds ekeys dks fuEukafdr :i ls fu"ikfnr fd;k tkrk gSA 1- fnukad 01-06-97 ls 22-06-01 rd vlk/kkj.k vodk'k ¼osrujfgr½ ftldh x.kuk is'kukfn ds fy, ugha dh tk,xhA 2- fnukad 23-06-01 ls 27-06-01 rd dh vof/k ifjxeu dky ds :i esa fofu;fer dh tk,xhA fcgkj jkT;iky ds vkns'k ls g0@& ¼teh:n~nhu valkjh½ ljdkj ds la;qDr lfpoA As a matter of fact Rule 101 of the Bihar Pension Rule prescribes that past 5 service would be forfeited only in certain contingency including if an order to that effect is passed in the disciplinary proceeding and, therefore, the impugned order passed in this case will take color and bear adverse effect of Rule 101 of the Bihar Pension Rule and eventually would stand in the way of the petitioner in computing her earlier services from 15-11-1990 to 22.6.2001 towards her qualifying service for pensionary purpose leaving her to earn pension only for rest of her service only for the period 23rd June 2001 to 31st July 2018 by excluding her earlier service from 23.11.1990 to 22.6.2001. Thus in effect the impugned order of punishment would take colour of major punishment which being by way of review of an earlier order of punishment is wholly impermissible in law specially when no departmental proceeding essentially required for a major penalty in terms of Discipline and Control Rules 2005 had been conducted against her at any point of time. As a matter of fact such impugned order dated 21.4.2008 has been passed even without any notice and/or opportunity of hearing to the petitioner. 6 That being so, the part of the impugned order as contained in Anenxure-7 dated 21.4.2008 as contained in Annexure-7 to the extent ^^fnukad 1-6-1997 ls 22-6-2001 rd vlk/kkj.k vodk'k ¼osrujfgr½ ftldh x.kuk isa'kukfn ds fy, ugha dh tk,xh** is quashed and would substituted by the earlier order of punishment dated 13.4.2006 (Annexure-2). This writ application thus stands allowed only to the extent indicated above. Rsh (Mihir Kumar Jha, J.)