IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.898 of 2005 Smt. Suman Kumari, Wife of Shri Manindra Pandey alias Mahendra Pandey, Resident of Village Ujjaina, Post Office Sohil Patti, Police Station Basantpur, District Siwan. Versus 1. The State of Bihar through the Secretary to Government, Health Sevices (Family Welfare) Department, New Secretariat (Vikas Bhawan), Patna. 2. Director in Chief, Health Services (Family Welfare) Department, New Secretariat (Vikas Bhawan), Patna. 3. Regional Deputy Director, Health Service, Saran Commissionary at Chapra. 4. Civil Surgeon-cum-Chief Medical Officer, Siwan. 5. Incharge Medical Officer, Primary Health Centre, Guthani (Siwan). 6. Treasury Officer, Siwan. -------- Respondents With CWJC No.13620 of 2005 Smt. Suman Kumari, Wife of Shri Manindra Pandey alias Mahendra Pandey, Resident of Village Ujjaina, Post Office Sohilpatti, Police Station Basantpur, District Siwan. -------- Petitioner Versus 1. The State of Bihar through the Secretary to Government, Health and Family Welfare Department, New Secretariat (Vikas Bhawan), Patna. 2. Director-in-Chief, Health and Family Welfare, Department, New Secretariat (Vikas Bhawan), Patna. 3. Deputy Director, Health and Family Welfare Department, New Secretariat, (Vikas Bhawan), Patna. 4. Civil Surgeon-Cum-Chief Medical Officer, Siwan. 5. Incharge-Medical Officer, Primary Health Centre, Guthani (Siwan). -------- Respondents ----------- 4 06.08.2010 These two writ applications involve almost identical issue and, therefore, they have been heard together and are being disposed of by this common order. In CWJC No. 898 of 2005, the prayer of the petitioner reads as follows:- “1(A) Issuance of direction, order or 2 writ in the nature of mandamus or any other appropriate writ commanding the respondents to pay salary and admissible allowances in the latest revised pay scale to the petitioner along with calculation chart in respect of payment for the periods noted below: i) From 9.10.1997 to 31.1.2002 ii) From March 2002 to May 2002 iii) From 1.7.2003 to 31.1.2004 iv) From September 2004 to till date. (B) Issuance of direction or order in the nature of mandamus commanding the respondents to allow consequential benefits if any to the this effect. (C) To pay penal interest for abnormal delay in payment of salary till date of actual payment along with cost of litigation throughout.” In the second writ application CWJC No. 13620 of 2005, the same petitioner has assailed the order impugned and its affirmance by the appellate authority and in this respect the prayer of the petitioner reads as follows:- “1(A) Issuance of appropriate writ of certiorari interalia for 3 quashment and setting aside the order dated 29.07.2003 (Annexure-7) and order dt. 13.9.2005 (Annexure 12) passed by the Disciplinary Authority (Respondent No.2) and Appellate Authority (Respondent No.1) respectively imposing and upholding the penalty of no any payment except subsistence allowance during the suspension period and withholding of one increment with cumulative effect to the petitioner and it should be entered in the service Book in arbitrary manner. In addition to it the appellate Authority enhanced the penalty order of transfer (vide the same Annexure 12) of the petitioner from out of the District/Division contrary to law should also be quashed. (B) Issuance of a direction or writ commanding the respondents to pay the consequential benefits to this effect to the petitioner.” Counsel for the petitioner would submit that the petitioner, holding the post of Lady Health Visitor, was not required to mark her attendance and, in fact, her work was only to be assessed on the basis of the weekly report and since she had regularly 4 been submitting the weekly report to her controlling authority, the conclusion drawn by the Direction-in-chief in the order dated 21.6.1999 for denial of payment of salary for the period October 1997 to June 1999 is wholly unsustainable. In view of the fact that the order of the Director, Health Services was passed not only after affording an opportunity of hearing to the petitioner but also after perusing the evidence on record as produced by her and the Civil Surgeon of the district, this Court would find it difficult to now reappraise such evidence and therefore, if the petitioner for the period October 1997 to 21.6.1999 would still be pressing her claim for payment of salary, she will have to file a civil suit, where on the basis of evidence to be produced by both the parties, a firm conclusion can be arrived as to whether the petitioner was present and had performed her duty so as to become entitled for payment of salary. A writ court cannot decide such a disputed question of fact where the petitioner claims to have all along worked 5 and the respondents find from their official record no proof of her working. That being so, the writ application CWJC No. 898 of 2005 is disposed of with a liberty to the petitioner to take recourse to file a civil suit. As with regard to the second writ application, it has to be noted that the order of punishment, in fact, was passed for the charges relating to the period of unauthorized absence for which the petitioner claims for payment of salary. A departmental proceeding is said to have drawn against the petitioner vide memo of charge dated 24th November, 2001 and an enquiry is said to have been also conducted by the Civil Surgeon whereafter the order of punishment in the form of stoppage of one increment and non- payment of salary for the period of suspension i.e. 3.11.2001 to 29.7.2003 has been passed. The appeal also filed by the petitioner against such order of punishment has been rejected. This Court, however, would find that the order of punishment cannot be sustained, 6 inasmuch as, the copy of the enquiry report was not served on the petitioner prior to the passing of the order of punishment. This fact clearly asserted in paragraph no.14 of the writ application has not been in fact even adverted to much less denied in the counter affidavit. Moreover, both the order of punishment and the appellate order are totally non-speaking, which would only reflect mechanical application of mind by both the disciplinary authority and the appellate authority. In such a situation, the impugned order of punishment and its affirmatory appellate order are hereby quashed and the matter is remitted back to the disciplinary authority who now would get the enquiry report served on the petitioner within a period of one month from the date of receipt/production of a copy of this order. Upon service of such enquiry report, the petitioner will submit her comments/reaction to the findings arrived at in the enquiry report, whereafter, the disciplinary authority will pass a fresh speaking order 7 taking into account the explanation submitted by the petitioner. This exercise must be completed by the disciplinary authority within a period of three months of the date of filing of the show-cause reply by the petitioner. Any financial benefit or the entitlement of the petitioner for the period in question would squarely depend on the result of the disciplinary proceeding and its final order to be passed in the manner indicated above. It goes without saying that the petitioner must cooperate in the departmental proceeding being remitted under this order and if the petitioner does not do so, the authority may proceed ex-parte and pass an order after service of enquiry report. CWJC No. 13620 of 2005 is accordingly allowed to the extent indicated above. Rsh (Mihir Kumar Jha, J.)