CIVIL WRIT JURISDICTION CASE No.1188 OF 2009 In the matter of an application under Article 226 of the Constitution of India. AJOY KUMAR, S/O SRI RAM SAGAR MAHTO, R/O VILLAGE-KAMALA, P.O.-MANJHAUL, P.S.-CHERIA BARIYARPUR, DISTRICT-BEGUSARAI. .......PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY- CUM-COMMISSIONER, DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF BIHAR, PATNA. 2. THE JOINT SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR-IN-CHIEF, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE SUPERINTENDENT OF PATNA MEDICAL COLLGE HOSPITAL, PATNA. 5. THE PRINCIPAL, PATNA MEDICAL COLLGE HOSPITAL, PATNA. 6. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, PURNEA. 7. THE ADDITIONAL SECRETARY, DEPARTMENT OF HEALTH, GOVERNMENT OF BIHAR, PATNA. .........RESPONDENTS. ----------- For The Petitioner : Mr.Sushil Kumar Singh,Adv. For The Respondents: AAG-2 P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J. In this writ application petitioner has prayed for quashing of a Resolution of the Health Department, contained in memo no. 1324(9) dated 11.11.2008 (Annexure-21), by which, under the orders of the Government, services of the petitioner have been terminated on conclusion of a departmental proceeding. Further prayer has been made for a direction to the respondents to sanction leave to him for the period 06.03.1992 to 29.10.2001 and to pay him salary and other monetary benefits as a consequence thereof. As per the case of the petitioner, he was appointed in Bihar Health Service by the 2 Department’s notification no. 19(2) dated 08.01.1988. On his posting, he joined as Medical Officer against a leave reserve post in Purnea on 17.03.1988. Later on, under memo dated 03.08.1988, he was transferred to a training reserve post under the Department of Radiotherapy, Patna Medical College, Patna where he performed his duties till 15.05.1990. Pursuant to a notification dated 15.05.1990, he was posted as Medical Officer in Medical Store of the College where he continued till 05.03.1992. Petitioner decided to go for higher studies and pursue Ph.D. course. Accordingly, he filed an application in the Department for a no objection certificate, which was granted to him by memo dated 18.05.1990 (Annexure-1). After getting the no objection certificate, he filed an application before the Joint Secretary dated 15.09.1991 (Annexure-2), through the Superintendent of Medical College, for grant of study leave to him with effect from 05.03.1992 till completion of the examination. No orders were passed on his application and he was not communicated anything with regard to grant of study leave. However, as no objection had already been granted to him, he presumed that the study leave would be granted. Hence, he relinquished charge on his own with effect from 05.03.1992 and sent his charge report (Annexure-3) to the Superintendent of the Medical College and proceeded for pursuing the Ph.D. course. 3 Petitioner’s examination for Ph.D. was held in the month of October, 1998, in which, he was declared successful. It is pleaded that he had duly informed the respondent authorities about extension of period of Ph.D. course from four years to six years. However, soon after his result was declared, on account of mental stress and hard labour, he fell ill and was not in a position to resume his duties. Hence, he submitted an application on 11.11.1998 to the Superintendent of Medical College (Annexure-4) for grant of medical leave for one month. After one month, the doctor treating him diagnosed his ailment as Disk Prolapse and Cervical Spondilitis. Hence, he was advised complete bed rest for six months. As such, he sent another application to the Superintendent on 11.12.1998 for extension of his leave for six months further. Even after six months, he did not recover. Hence, he sent applications to the Superintendent for extension of medical leave on 11.12.1999, 10.06.2000, 11.12.2000 and 11.06.2001 (Annexure-6 series). Finally, after full recovery, he submitted his joining to the Superintendent on 30.10.2001 (Annexure-7). By this time, the post which petitioner was holding earlier had got filled up. Hence, Superintendent of the Medical College, through his memo dated 21.11.2011 (Annexure-8), informed the Deputy Secretary of the Department about joining of the petitioner and directed the petitioner to report in the Directorate as no post was vacant in the 4 College. Accordingly, petitioner joined in the Directorate on 05.12.2001. On 29.06.2002, a notification (Annexure-9) was issued from the Department posting 12 doctors, who were waiting in the Department for their posting, to different places, which included petitioner also, who was posted at Sadar Hospital, Purnea. In compliance to the same, petitioner submitted his joining before the Civil Surgeon-cum-Chief Medical Officer, Purnea on 03.07.2022 and under his orders (Annexure-10) took charge of Medical Officer, Sadar Hospital, Purnea on 09.07.2002. After joining, petitioner submitted an application before the Commissioner-cum-Secretary of the Department on 09.07.2002, requesting for regularization of his period of service from 30.10.2001 to 08.07.2002, during which period he was waiting in the Department for posting. The said application of the petitioner remained pending in the Department. Hence, he made another request through his lawyer on 08.06.2004 for sanction of leave and regularization of his service. Meanwhile, a letter was issued on 15.06.2004 (Annexure-12) from Patna University to the Deputy Secretary of the Department intimating about completion of Ph.D. course by the petitioner in October, 1998. It appears that after petitioner’s request through his lawyer was received in the Department, the matter was referred to the Finance Department. Accordingly, Finance Department, through memo dated 25.06.2004 5 (Annexure-13) sought information from the Department of Health in respect of grant of leave to the petitioner for different periods. After receipt of the letter from the Finance Department, the matter was examined in the Health Department and it was found that petitioner had been absent from his duties for a long period without sanction of leave. Accordingly, under the orders of the Government, a resolution dated 24.02.2005 was issued from the Health Department, by which a departmental proceeding against the petitioner under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules was initiated. The said resolution along with memo of charges (Annexure-14) was served on the petitioner with a request to him to appear before the Conducting Officer and file his show cause in respect of the charges. It was also mentioned in the resolution that, if petitioner desired to examine any witness and a personal hearing, he may make such a request to the Conducting Officer. The Conducting Officer also intimated petitioner through his letter dated 09.03.2005 (Annexure-15) about the date of inquiry fixed, with a request to appear in the proceeding and submit his show cause. Accordingly, petitioner appeared in the proceeding and filed his show cause (Annexure-16). After considering his show cause, Inquiry Officer submitted his report dated 04.04.2005 (Annexure-17), in which, he found petitioner guilty of unauthorized absence for over 9 6 years 7 months. Hence, he concluded that grounds were made out for terminating his services in terms of Rule 76 of the Bihar Service Code. On receipt of the report, a second show cause notice was issued to the petitioner, vide letter dated 04.06.2005 (Annexure-18), with a copy of the inquiry report. Petitioner submitted his reply to this second show cause notice (Annexure-19). He also submitted representation through the Civil Surgeon, Purnea, forwarded on 17.03.2007 (Annexure-20) to the Commissioner-cum-Secretary, with a request to regularize his period of absence spent on study leave and medical leave and intimated that he had visited Bangkok for very short periods. However, finally, after considering his second show cause reply, and the inquiry report, orders, terminating his services, was issued through impugned Resolution (Annexure-21). It is pleaded that the said order was issued without taking into account the opinion of the Bihar Public Service Commission. Petitioner has annexed an order of the Civil Surgeon-cum-Chief Medical Officer, Vaishali dated 10.07.2008 (Annexure-22), as an example, to show that the joining of any employee, upon return from leave, has to be accepted. Submissions of learned counsel for the petitioner were mainly three fold. He submitted that Rule 76 of the Bihar Service Code has been held ultra vires by this Court long back. Hence, the respondents could not take recourse to the said Rule 7 for terminating services of the petitioner. He next submitted that the petitioner having been once granted no objection to pursue higher studies, the grant of leave to him was automatic. He had also formally applied for study leave to the competent authorities in the Department, but no orders were passed on the same. Hence, he proceeded on leave on his own, assuming that leave shall also be granted to him by the Department as no objection had already been granted. He also submitted that after completion of course and after being declared successful in the examination petitioner fell ill and he, time to time, submitted application for medical leave. Finally, after full recovery, petitioner joined his duties. Hence, it cannot be held that, after completion of Ph.D. course also, he remained absent from duty without any information to the authorities. He then submitted that in the proceeding no witness was examined, no documents were perused and the petitioner was not given any opportunity to examine his witness or produce documents in his defence. It was submitted that, in the circumstances, the proceeding was conducted in violation of Principles of Natural Justice and, therefore, punishment order and the entire proceeding stands vitiated and is fit to be quashed. The respondents have filed counter affidavit in the case. The stand in the counter affidavit is that study leave was never sanctioned to the petitioner and, therefore, he could not proceed on 8 leave suo motu and absent himself from duty. It is also stated that the applications of medical leave, annexed by the petitioner as Annexures- 4, 5 and 6 series, were never received in the Department or by any authority. It is stated that in the proceeding petitioner could not give sufficient reasons, nor did he produce evidence, justifying his unauthorized absence from duty for a long period of more than 9 years. Hence, his case was rightly found fit for dismissal from service. It is also stated that concurrence of the Commission was sought for, but the same was denied. However, Government decided to differ with the opinion of the Commission as it found the case of petitioner fit for dismissal. It is stated that, as per the settled law, the Commission’s role is only advisory and its opinion is not binding for the Government. Petitioner filed a reply to the counter affidavit in which it is stated that his application for leave was forwarded by the Superintendent of the Medical College on 15.09.1991 itself. It is also stated that since petitioner was ailing, he had sent his applications for medical leave through post. It is also stated that it is settled law that in a departmental proceeding burden to prove charges is on the Department which the Department has failed to discharge in this case. It is also stated that neither any document was exhibited in the proceeding nor any oral evidence was adduced nor the petitioner was afforded any opportunity to produce any witness 9 in his defence. In his submissions, learned counsel for the respondents reiterated the stand taken in the counter affidavit and also stated that since the charges were proved on admitted facts no witness was required to be examined in the proceeding and no document was required to be taken on record formally. He also submitted that petitioner never requested or expressed his desire for being allowed to exhibit any document or to examine any witness in the proceeding. Taking up the submissions of learned counsel for the petitioner for consideration in chronological order, it is true that Rule 76 of Bihar Service Code was held ultra vires by a Division Bench of this Court in a judgment passed in the case of Sobhana Das Gupta Vs. State of Bihar and Ors. [1974 PLJR 382 (DB)]. But, by this judgment, the entire Rule 76 was not held ultra vires and only that part of the Rule which provided for automatic cessation of status of Government servant as an employee, on being absent from duty for more than five years without leave, was held invalid and struck down. In view of the striking down of this part of the Rule, the Rule was later-on amended, providing for a proceeding for action against an employee, remaining absent from duty for more than five years without any leave, in terms of the relevant Discipline and Appeal Rules. The rule 76 as it reads now after amendment is reproduced 10 hereinbelow for easy reference. Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a Government Servant, after five years’ continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases to be in Government employ. [(a) No Government servant shall be granted leave of any kind for a continuous period exceeding five years. (b) Where a Govt. servant does not resume duty after remaining on leave for a continuous period of 5 years, or where a Government servant after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him, exceeds a continuous period of 5 years, he shall unless the State Government otherwise determine be removed from service after following the procedure laid down in the Civil Service (Classification, Control Appeal) Rules 1930 and the Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935.] From reading of the amended Rule 76, it is clear that merely on the ground of unauthorized absence from duty for more than five years a Government employee can be subjected to a disciplinary proceeding under the relevant Discipline and Appeal Rules and proceeded against, and on the basis of proved charges, can be removed from service. In the present case, full-fledged proceeding was initiated against the petitioner in which he was allowed to participate and, thereafter, on conclusion of the same he has been removed from 11 service on account of his unauthorized absence from duty for more than 9 years. Hence, the first submission of learned counsel for the petitioner has no substance in view of the amended Rule 76 and the same is rejected. The next submission of learned counsel for the petitioner has also no substance as, under no provision of law or any judicial pronouncement, the grant of no objection by the Department can be treated as automatic grant of leave from duties, to pursue higher studies or for any other purpose. An employee in service may adopt different methods for acquiring higher or specialized studies, which may include correspondence courses, joining an institution imparting distance education, attending classes or indulging into research after duty hours and so forth. But if an employee desires to be excused from duty to pursue higher studies, or for any other activity, a formal order of grant of leave must precede. Merely submission of an application for leave can, in no way, authorize a Government servant to proceed on leave on his own, without any permission or approval of his higher authorities or his controlling officer. The charge report, in the pen of the petitioner, as contained in Annexure-3, itself shows that, even without any prior approval of his controlling authority in the Medical College, i.e. the Superintendent, he had unilaterally relieved himself and had just sent his charge report to the Superintendent afterwards. Thus, it is clear 12 that, on his own sweet will, without any permission by any authority whatsoever, he left his duties and absented himself. He claims that he pursued his Ph.D. course, which was initially of four years and extended by two years more, finally appearing in the examination in 1998 and being declared successful. There is nothing on record to show that during this long period of six years he ever approached any authority in the Department or even in the College intimating about his proceeding with the Ph.D. course and requesting them to sanction his leave or authorize him for his absence from duties. The letter granting no objection to the petitioner does not mention about any period and it is only a permission to allow him to pursue Ph.D. course. His application for leave does not mention any period and he has simply requested for grant of leave from 05.03.1992 till the completion of the examination. This makes a request for leave vague and not fit for being entertained. It does not need much emphasis that leave cannot be granted to a Government employee for an indefinite period and in the form of a blanket permission. The application and grant of study leave, or any leave of any other nature, is distinguishable from an application for grant of medical leave. An application for grant of medical leave may be submitted in case of emergency or on account of sudden illness of a Government employee. An employee cannot wait to fall ill or cannot wait to proceed for his treatment awaiting sanction of 13 leave. Hence, sanction of medical leave post facto is common. However, so far sanction of leave for any other purpose, including for higher studies, in normal course, has to preceed before the employee hands over charge of his duties and proceeds on leave. In the circumstances, in no manner can it be accepted that the grant of no objection to the petitioner did amount to automatic grant of study leave to him or that he was justified in presuming grant of such study leave by the respondents later- on. The third submission of learned counsel for the petitioner was that at least from 11.11.1998, till he submitted his joining in the Medical College on 30.10.2001, petitioner’s absence should not be treated as unauthorized, since he had fallen ill and, time to time, had sent his application for medical leave to the Superintendent of the Medical College. The applications of the petitioner, which are available on record in this respect, are Annexure-4, 5 and 6 series. These applications do not bear any endorsement of receiving nor do they bear any evidence that they were sent to the Superintendent of the Medical College by registered post or by any manner showing proof of dispatch. The receipt of the applications has been denied in the counter affidavit. The bald reply of the petitioner, in his reply to the counter affidavit, is that since the petitioner was confined to bed he sent it by post. But along with his reply also, petitioner has 14 not annexed any proof of dispatch. Petitioner has claimed that on account of strenuous studies he suffered from Disk Prolapse and Cervical Spondilitis. For these ailments it is highly unlikely that he would remain completely confined to bed for almost three years under medical advice. In the circumstances, the alleged applications of the petitioner, allegedly sent to the Superintendent of the Medical College, do not inspire confidence of this Court. Hence, this Court is unable to accept the plea of the petitioner that he was continuously ill for a long period of almost three years, due to which, he could not join his duties even after he completed his Ph.D. course. This may also be pointed out that along with his said applications there is no medical prescription of any qualified specialist. The last submission of learned counsel for the petitioner was in respect of violation of Principles of Natural Justice committed in the proceeding. He submitted that the petitioner was not given any opportunity to defend himself and to produce witnesses and documents. He also submitted that no document was produced in the proceeding and no witness was examined by the Department to prove the charges, onus for which lay on the Department. It is not in dispute that in a departmental proceeding under the Rules, strict rules of evidence and procedure of a civil proceeding, followed in a court of law, does not strictly apply. Only broad principles of the procedure, in consonance with the 15 Principles of Natural Justice, has to be adopted in a departmental proceeding, so that no prejudice may be caused to a delinquent and he may get full opportunity to defend his case against the charges framed against him. For this purpose, along with initiation of a proceeding, or soon thereafter, a formal charge memo is issued to the delinquent, along with list of witnesses and copies of documents on which the Department intends to rely in support of the charges, with liberty to him to file his show cause/written statement/defence. In case the delinquent desires some further opportunity or some documents, he has to make that request to the disciplinary authority before he finally submits his show cause. Even in the proceeding, if at any point of time, he disputes the facts or materials on the record of the proceeding, he is at liberty to take his objections, with liberty in such manner as he may deem fit to disprove the same. The proceeding was initiated against the petitioner by Annexure-14, and a charge memo along with the Resolution was served on him. It was mentioned that the petitioner had to make a request to the Conducting Officer for a personal hearing and for examination of witnesses, if he so desired. The Conducting Officer also intimated the petitioner the date fixed in the inquiry and requested him to appear and submit his show cause. Petitioner did submit his show cause, a copy whereof is Annexure- 16. After carefully examining the show cause of the 16 petitioner, this Court finds that all the facts, as noticed above, were admitted by the petitioner in his show cause. He did accept that he suo motu relieved himself and proceeded on leave on 05.03.1992 and joined back only on 30.10.2001. He has accepted that no order of sanction of leave was received by him to allow him to proceed on leave. He has stated that after he completed the research and Ph.D. he was ill for almost three years. In the show cause, he has not disclosed his nature of ailment. With the show cause he did not annex any document. There is not a single sentence in his show cause to show that he desired to produce any document or examine any witness or he disputed any fact. The inquiry report shows that on the date intimated by the Conducting Officer, petitioner appeared before him physically and filed his show cause personally. There is no pleading on record to show that the petitioner, even on that day, requested, even orally, for any opportunity to produce any document or any witness or requested for calling for any document or witness of the Department. Learned counsel for the petitioner has referred to a judgment of the Apex Court in the case of Sur Enamel and Stamping Works Ltd. Vs. Workmen (AIR 1963 SC 1914) and has particularly placed reliance on the following part of paragraph 4 of the judgment wherein the Apex Court has categorized the proper course, to be taken in a departmental proceeding, under five heads :- An enquiry cannot be said to 17 have been properly held unless, (i) the employee proceeded against has been informed clearly of the charges levelled against him, (ii) the witness are examined – ordinarily in the presence of the employee – in respect of the charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with reasons for the same in his report. The guidelines laid down by the Apex Court as reproduced above is law of the land in view of Article 141 of the Constitution of India and is required to be followed in all departmental proceedings.