IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5295 of 2004 DR.RAJENDRA KUMAR, Son of Late Kailash Kumar, resident of Mohalla- 4H/26 Bahadurpur Housing Colony, Kankarbagh, Patna, P.S. Agam Kuan, District – Patna. …. Petitioner. Versus 1. THE STATE OF BIHAR. 2. The Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 3. The Special Secretary, Department of Health, Medical and Family Welfare, Government of Bihar, Patna. 4. The Under Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 5. The Director, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. … Respondents. ----------- 05/ 08.07.2009 Heard learned counsel for the petitioner and learned counsel for the State. As a consequence of departmental proceeding, an order of punishment has been passed against the petitioner as contained in Annexure – 14, which was notified through Memo No. 393(3)/ Health, Patna, dated 4.4.2003. Learned counsel for the petitioner submits that before this punishment order, neither the copy of the enquiry report was made available to him nor he was given any opportunity to file a second show cause against the findings of the enquiry report. He submits this fact stands admitted by the respondents in paragraph 6 of the counter affidavit, in which the respondents have disclosed that copy of the enquiry report was sent to the petitioner - 2 - through letter No. 1020 (9) dated 6.7.2004 only. Learned counsel for the State does not claim any typing mistake in the date of the letter mentioned in the said paragraph 6 of the counter affidavit. In the circumstances, it is apparent that the copy of the enquiry report was sent to the petitioner for filing second show cause after more than one year of the order of punishment passed against him. There is apparent violation of principle of natural justice in the case. In the circumstances, the punishment order contained in Annexure-14 is hereby quashed. Since the petitioner has claimed violation of principle of natural justice in not furnishing a copy of the enquiry report and not giving any opportunity to him before passing of the impugned order of punishment, the respondents have to be given liberty to proceed afresh from the stage of furnishing a copy of the enquiry report to the petitioner for filing second show cause. However, learned counsel for the petitioner submits that the said punishment order was passed against the petitioner for his unauthorized absence from - 3 - 01.08.1989 to 12.03.1991.He submits that from the charge Annexure-12 it is apparent that the petitioner had submitted his joining in the department on 3.12.1990 and notification with regard to his posting was issued on 12.3.1991, pursuant to which he joined on 13.3.1991. He submits that period between 3.12.1990 to 12.3.1991 cannot be a basis for framing a charge on account of his unauthorized absence during the period. Since the matter is being remitted back for the respondents to proceed afresh from the stage of furnishing a copy of the enquiry report to the petitioner, it will be open to the respondents to consider whether this period can at all be treated as unauthorized absence in view of the admitted position that the petitioner had submitted his joining in the department on 3.12.1990 and the notification for posting was issued on 12.3.1991. So far as the earlier period of alleged unauthorized absence from 1.7.1989 (wrongly typed in the typed copy of Annexure – 14, 1.8.1989) to 2.12.1990 is concerned, learned counsel for the petitioner submits that the respondents may consider for adjustment of this - 4 - period against any admissible leave to the petitioner in accordance with law. This matter can also be considered by the respondents while considering the matter afresh before passing any final order in the matter. Learned counsel for the petitioner also submits that since the petitioner has superannuated in January, 2004 some time frame may be fixed for any decision by the respondents in the matter if they at all decide to proceed with the matter afresh. Considering the fact that the petitioner has already been superannuated and it is also stated that he is not getting any pensionary benefit on account of the pendency of this proceeding, the respondents are given liberty to furnish a copy of the enquiry report to the petitioner within three months from today with giving him two weeks time to file second show cause. From the date of filing of the second show cause they must take a final decision within one month. It is made clear that in case they do not adhere to the time frame as indicated above, they will not be at liberty to proceed afresh and in that a situation they shall finalize the pensionary benefit of the - 5 - petitioner and start payment of the same immediately. Learned counsel for the petitioner also submits that in the earlier writ application of the petitioner, namely, C.W.J.C. No. 11851 of 1996 certain other directions had also been issued for considering the adjustment of several period of absence of the petitioner. He submits that pursuant to the said directions respondents have passed Annexures – 15 and 16, which is not as per the directions of this Court passed in the said writ application. In the circumstances, petitioner will be at liberty to file a fresh representation pointing out the anomalies in Anneuxres- 15 and 16 and if he is able to satisfy the respondents that the said orders as contained in Annexures – 15 and 16 have not been passed strictly in terms of the order passed in the earlier writ application, they may consider the matter in accordance with law. Since this application is being disposed of with quashing of Annexure – 14 only on the ground of violation of Principles of Natural Justice, it is made clear that nothing observed above in the order shall be considered by either party as an opinion of this Court on - 6 - any other matter which has to be considered by the respondents independently on its own merit in accordance with law. With the aforesaid observations and directions, this writ application is disposed of. Let a copy of this order be handed over to the learned counsel for the State. DKS/ (J. N. Singh, J.)