IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2150 of 2006 Braj Kishore Prasad Singh, Son of Sri Bishun Pd. Singh, Resident of Village Bankatte South, P.S. Baikunthpur, District Gopalganj. ---------- Petitioner Versus 1. The State of Bihar through Secretary Govt. of Bihar, Patna. 2. The Director, Health Department, Govt. of Bihar, Patna. 3. The Deputy Director, Health, Govt. of Bihar, Patna. 4. The Chief Medical Officer, Gopalganj. 5. The Assistant Chief Medical Officer, Gopalganj. 6. The In-charge Medical Officer, Narhawa Shukul, District Gopalganj. ------------- Respondents ----------- 2 20.08.2010 Heard Mr. Basant Kumar Chaudhary, learned senior counsel for the petitioner and Mrs. Nivedita Nirvikar, learned Government Pleader No.15 for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That in this writ application the petitioner prays for issuance of a writ of certiorari quashing the order contained in annexure-14, 15 and 15/A pertaining to hold that the petitioner was in service only till 10.12.93 and thereafter he cannot be deemed to be in service validly and legally. It is further prays that writ of mandamus may be issued commanding the respondents to make payment of all consequential benefits to the petitioner for the also make payment for which he is entitled under the law and from 10.12.93 to 2 the current period and thereafter regularize the payment of the petitioner.” With regard to the aforementioned prayer, learned senior counsel for the petitioner would submit that the petitioner has been wrongly denied payment of salary from 10.12.1993 and in fact in this context his sheet anchor is that he had filed a writ application claiming payment of salary from August, 1993 onwards in CWJC No. 13800 of 2003 which got disposed of by this Court by order dated 27.4.2003 and the respondents after becoming alert in view of the aforesaid order had gone to pass certain orders only when the contempt application was filed by the petitioner and as such, on account of confrontationist attitude, the petitioner’s claim of salary had been butchered by the respondents by holding that the petitioner was never present on duty after 10.12.1993. In this context, he has also submitted that the petitioner in fact was/is always eager to do his duty but the respondents have not allowed him to even mark his attendance in the attendance register. 3 In this case, a counter affidavit has been filed, wherein, the respondents have taken a clear stand that the petitioner has been absenting from duty after 10.12.1993 and in fact has never been present at the place of posting and in this context, reliance has been placed on certain reports of the controlling authority. In the same vein, the respondents have also denied the claim of the petitioner to have ever approached the competent controlling authority for marking his attendance in the attendance register. In nutshell, the case of the respondents is one of total denial of the claim of the petitioner with regard to his having worked for a single day on or after 10.12.1993. Normally, in a controversy like this where one party asserts of his working for the purpose of claiming payment of salary and the other party would categorically deny the same, the remedy of writ jurisdiction will be wholly inappropriate jurisdiction because such jinxed disputed question of fact cannot be adjudicated unless oral and documentary evidence are allowed to be led by the parties 4 in support of the aforementioned crucial question of fact. The petitioner, therefore, in all fairness having come to know of the aforesaid stand of the respondents in the contempt application in stead of filing of the writ application ought to have approached the civil court by filing a civil suit. Counsel for the petitioner, however, is still confident that he can produce clinching evidence to show that the petitioner was always eager to work and that he was wrongfully denied his working by his controlling authority. He has also gone to submit that the arrear of salary may be one part of the claim of the petitioner but then the fact remains that the petitioner having approached the writ court from 2003 and waiting since then has shown his eagerness for working on his part but has not been allowed to do so and therefore, the petitioner will be still entitled to know his current status as a Government servant. As noted above, the claim of payment of salary, being wholly disputed by the respondents and there being no clinching 5 documentary evidence at least on record to prove the working of the petitioner, this Court would find it difficult to issue a direction for payment of salary as prayed for by the petitioner in this writ application. Counsel for the petitioner, however, is correct that the petitioner must know his current status and entitlement. The petitioner as per the case of the respondents is absenting from duty from 10.12.1993 and therefore, the petitioner, in normal course by this time, ought to have been subjected to a departmental proceeding for his long unauthorized absence, inasmuch as, any Government servant remaining absent from duty for such a long period would not be entitled to be retained in service. Considering this aspect of the matter, this Court would direct the Director- in-chief of the Health Services to look into this aspect as to why if the petitioner was all along absent from 10.12.1993, a proceeding for his removal from service on account of unauthorized absence was not drawn. It would be, however, open for the 6 petitioner to substantiate his claim before the Director-in-chief by filing his own representation enclosing the proof of his efforts for rejoining his duty or continuing in service. The Director-in-chief, thereafter, must pass a reasoned order after hearing the petitioner both with regard to the current status as also current salary from the date of filing of this writ application i.e. 17.2.2006. It is, however, made clear that in case the joining of the petitioner is accepted with prospective effect, a decision must be taken regarding the interregnum period from 17.2.2006 to the date of acceptance of his joining whether by way of extraordinary leave or a break in service strictly in accordance with law. For the rest of period i.e. 10.12.1993 to 16.2.2006, the petitioner will have to approach competent civil court both for payment of salary and/or continuation in service. Such an exercise must be completed by the Director-in-chief within a period of six months from the date of 7 receipt/production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)