CIVIL WRIT JURISDICTION CASE NO 9276 OF 2003 *** In the matter of an application under Article-226 of the Constitution of India. *** Dr (Mrs)Malti Jha, wife of Sri Jitendra Sharma, resident of village – Ghorwara, P S – Majorganj, District – Sitamarhi - Petitioner Versus 1 The State of Bihar through the Commissioner –cum- Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 2 The Deputy Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, New Secretariat, Patna 3 The Additional Secretary, Department of Finance, Government of Bihar, Nirman Bhawan, Patna 4 Civil Surgeon –cum- Chief Medical Officer, Hazaribagh, District – Hazaribagh (Jharkhand) - Respondents *** For the petitioner : Mr Kishore Kumar Thakur, Advocate For the State of Bihar : Mr Pushkar Narayan, Shahi, AAG 14 with Mr Amiya Kumal, AC to AAG 14 For State of Jharkhand: M/s Dhruba Mukherjee & Neeraj Kr, Advocates *** P R E S E N T THE HON'BLE MR JUSTICE NAVANITI PRASAD SINGH Navaniti Prasad Singh, J The petitioner, who is a doctor and a Member of the Bihar Health Service, has challenged the order of the State Government dated 29.01.2002 (Annexure-1) by which for certain periods, it has been ordered that they would be treated as leave without pay. Counter affidavit and rejoinder are on record and the parties have been heard at length. There are three periods under consideration. The first 2 period is from 12th of May, 1994 to 04th of July, 1995. The second period is 12th of December, 1996 to 05th of October, 1998 and the third period is 06th of October, 1998 to 22nd of June, 2001. As noted above, all these periods have been treated as leave without pay. Ordinarily, these being essential questions of fact, this Court is reluctant to interfere in the limited judicial review jurisdiction where the fact finding authority has taken into consideration and determined question of fact especially when it is not shown that the findings are perverse or dehors materials on record but as the learned counsel for the petitioner invited the Court to go into the questions of fact on the plea of perversity of findings, this Court, though reluctantly, is dealing with the same. So far as the first period that is 12.05.1994 to 04.07.1995 is concerned, the petitioner’s plea is that she was under suspension which she had challenged in CWJC No 1620 of 1994. It is in course of those proceedings that she came to know that her suspension had been revoked and she was directed to rejoin her place of posting at Hazaribagh. She was not duly communicated the order of revocation of suspension or direction to join her post and, as such, she cannot be blamed and that period cannot be treated as leave without pay. On behalf of the State, it is submitted that while she was suspended, she was not found at her Headquarters that was fixed. While the said writ petition was pending, on the intervention of the Court, the suspension was revoked on 11.05.1994 and she was directed to join her place of posting at Hazaribagh which she failed to do. The said writ petition being CWJC No 1620 of 1994 was disposed of on 25.05.1995 which order petitioner herself has annexed as 3 Annexure-7 and which order itself noted that during pendency of the writ petition itself, the suspension had been revoked on 11.05.1994 yet she chose to join her place of posting at Hazaribagh Sadar Hospital only on 05.07.1995 long after the disposal of the writ petition itself and, as such, for the period after revocation of suspension to her joining, was rightly held as period of leave without pay. So far as the second period is concerned that is 12.12.1996 to 05.10.1998, petitioner states that she was present at the Sadar Hospital, Hazaribagh and her pay slip for the period 01.12.1996 to 01.06.1997 had also been prepared which established her presence but was later cancelled. She was wrongly shown as absent for the period. As against this, State submits that having joined Hazaribagh on 05.07.1995, she left station without intimation or seeking leave on 12.12.1996 which would be evident from the report of the Civil Surgeon –cum- Chief Medical Officer, Hazaribagh which has been annexed as Annexure-B/1 to the counter affidavit so much so that as per petitioner’s own averment, a newspaper advertisement/notice had to be issued by the authorities in September 1998, which petitioner herself has annexed as Annexure-8 to the writ petition clearly pointing out that she had been missing since 12.12.1996 and was required to show cause before the authorities in the Health Department at Patna why action should not be taken against her. It is pursuant thereto that instead of reporting back to the Sadar Hospital, Hazaribagh, she reported to Headquarters at Patna instead on 06.10.1998. Her explanation, that she had sought to rejoin at Hazaribagh but was assigned no work nor was she allowed to join, was unsupported in any 4 manner, as such, she was rightly treated as leave without pay during that period. The third period is 06th October, 1998 to 22.06.2001. In relation to this period, petitioner submits that as after the newspaper notice showing her absent from Hazaribagh since 12.12.1996, she had attempted to join at Hazaribagh but her joining not having been accepted, on 06.10.1998, she admittedly reported at Headquarters and was shown as waiting for posting. On 22.06.2001, State issued posting order posting her to Referral Hospital, Ghorey, District – Gopalganj which is Annexure- 3 to the writ petition and Annexure-A to the counter affidavit respectively and pursuant thereto, she joined Gopalganj on 23.06.2001. With reference to the posting order, it is submitted that the posting order itself shows that she had reported to Headquarters on 06.10.1998 and continued there till the posting order was issued on 22.06.2001 waiting posting and, as such, the period cannot be treated as leave without pay. State has taken stand that she had to join at Hazaribagh where she was earlier posted and was found absconding. From newspaper notice having been issued, instead of joining at Hazaribagh, she gave her joining at the Headquarters at Patna on 06.10.1998 and wrongly continued without going to Hazaribagh on the pretext of waiting posting orders. She had to join at Hazaribagh and continued there where she had been posted and, as such, she was unauthorisedly claiming to be at Headquarters waiting posting. In due course, in the year 2001, she was transferred to Gopalganj where she joined on 23.06.2001 and, as such, she was absent from her post at Hazaribagh without cause between the said period of 06th October, 1998 5 to 22.06.2001. It is the correctness of the stand on fact that has to be now judged in these proceedings. In my view, it is apparent that petitioner, in all the three periods aforesaid, was absent from her place of posting without any reasonable cause. The reasons are simple. So far as the first period is concerned, it appears that earlier also petitioner was found absconding from her place of posting and she was put under suspension. This she had challenged in CWJC No 1620 of 1994 which, as noted above, was disposed of on 25.05.1995 by order as contained in Annexure-7 to the writ petition itself. The order itself shows that during pendency of the writ petition, on 11.05.1994, her suspension was revoked and she was directed to join Sadar Hospital, Hazaribagh which was her previous place of posting. This Court finds it difficult to accept submission on behalf of petitioner that there was no formal communication of revocation of suspension to her and she was in the dark about the said fact till after the disposal of the writ petition. The order itself noted that during pendency of the writ petition, the suspension had been revoked. This itself shows that even though order may not have been formally communicated to her, this fact was brought on the record of the writ proceedings yet she did not obey the orders and even though the writ petition itself was disposed of noticing the aforesaid fact on 25.05.1995, she rejoined Hazaribagh only on 04.07.1995. This conduct of the petitioner belies her bona fides. Her explanation lacks bona fide and cannot be accepted. In my view, for this act of being absent for more than a year from her place of posting, she has been let off rather cheaply by 6 treating that period as leave without pay and no other action. Her claim, as against the said period is, thus, not acceptable. Now, coming to the second period that is 12.12.1996 to 05.10.1998, she claims that she was at Hazaribagh as her pay slip was also prepared for the period 01.12.1996 to 01.06.1997 which was wrongly cancelled. This claim is again not acceptable. While considering her representation for the said period, authorities had called for a report from the Civil Surgeon, Hazaribagh which, as noted above, is Annexure-B/1 to the counter affidavit. The report clearly shows that she had left without seeking leave on 12.12.1996 and she was traceless. As such, authorities had to publish notice in the newspaper in September, 1998 (Annexure-8 to the writ petition itself). It is not explained by the petitioner why the pay slip, having been prepared, she did not draw her salary and in he meantime, authorities, having discovered that the pay slip has wrongly been prepared, have got it cancelled as she was absent without cause. It is obvious that the pay slip was wrongly drawn otherwise why the authorities would have noticed her through newspaper if she was already working at Hazaribagh on her post. Petitioner’s defence that she was already there is further belied from her own statement that when after notice was issued in the newspaper in September 1998, she tried to rejoin at Hazaribagh which was not accepted and, accordingly, she gave her joining waiting posting on 06.10.1998 at Headquarters at Patna. The question of rejoining at Hazaribagh would not have arisen if she was already there and there was no occasion for her to give her joining at Headquarters at Patna on 06.10.1998 in such circumstances. That clearly 7 shows only one ting that she was in fact not at Hazaribagh during the said period. Thus, the defence of the petitioner cannot be accepted for this period as well. Coming to the third period, that is 06.10.1995 to 22.06.2001, it is not in dispute that the petitioner at the time was posted at Hazaribagh Sadar Hospital and she should have been there. There was no transfer order yet on the pretext that she was not allowed to rejoin Hazaribagh after the newspaper notice and, as such, she gave her joining at the Headquarters at Patna cannot be accepted as bona fide. Petitioner’s reliance on the posting order issued on 22.06.2001 (Annexure-3 to the writ petition and Annexure-A to the counter affidavit respectively) does not absolve her of the charge of being missing from place of posting rather it only establishes that instead of joining her place of posting at Hazaribagh without any basis or reason, she gave her joining at Headquarters at Patna and remained there on the false pretext of waiting for posting. Before she could claim that she was waiting for posting, she had to bring on record that she had been relieved by any Government order from Hazaribagh. Nothing has been brought on record to even suggest that. The fact remains that she was to be at Hazaribagh where she was not for the period under consideration till she was posted afresh to Gopalganj where she apparently joined on 23rd of June, 2001. Thus, for the period 06.10.1998 to 22.06.2001, she was absent from her posted place at Hazaribagh. Again, she has been left off rather cheaply by treating the period as leave without pay instead of any other action. Thus, in my view, no case has been made out for 8 interference in the matter. Annexure-1, the impugned order requires no interference. The writ petition merits no consideration and is dismissed accordingly. (Navaniti Prasad Singh) Patna High Court, The 04th of May, 2011, N A F R, M E Haque/