IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.7922 OF 2004 DR.NIKHIL KUMAR ROHTAGI, SON OF SHRI M. P. ROHTAGI, LALLU BABU‟S LANCE, POST OFFICE BEGUMPUR, PATNA-800009, PRESENTLY POSTED AS MEDICAL OFFICER INCHARGE, PRIMARY HEALTH CENTRE, IMAMGANJ, GAYA ……………………………………………………………………..PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, OLD SECRETARIAT, PATNA 2. THE HEALTH SECRETARY, GOVERNMENT OF BIHAR, PATNA 3. THE CABINET SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 4. THE SECRETARY –CUM- COMMISSIONER, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, BIHAR, PATNA 5. THE CIVIL SURGEON, GAYA ……………………………………………………………………………RESPONDENTS ********* 6 06/12/2010 The petitioner is the Assistant Civil Surgeon, who was posted at Imamganj, Gaya. The problems arose in this case on the visit of the Minister who had found that the petitioner was absent for 10-12 days. A disciplinary proceeding was initiated in which the petitioner was awarded minor punishment. The petitioner filed CWJC No. 4070 of 1991, disposed of on 10.01.1997, challenging the order of suspension. This Court ordered that the departmental proceeding should be concluded within two months. Thereafter, the petitioner was imposed a punishment of warning and there was an order that he would not be entitled to salary or allowances except for the subsistence allowance for the period he was placed under suspension. But the said order of punishment would not 2 affect the pension or gratuity of the petitioner. This order was challenged by the petitioner by filing CWJC No. 11517 of 1994. This Court held after considering all the materials that the petitioner could not be considered to be absent from duty as he had applied for leave for the said period. Accordingly, the Court quashed the order of punishment dated 06.05.1995 with liberty to the authority to conduct an enquiry with regard to the charges against the petitioner in accordance with law. A third writ application being CWJC No, 4913 of 1996 was filed by the petitioner claiming arrears of salary which was withdrawn as the State has taken a stand that the petitioner was not entitled to payment of salary. Again the petitioner moved this Court praying therein that he may be posted near about Patna, as his father was very ill. This Court directed that the petitioner should move the appropriate authority by filing a representation for his posting. After the orders in all these writ applications, the Health Department disposed of the representation of the petitioner in lieu of the order passed in CWJC No. 11110 of 1996, contained in Annexure-9. While disposing of the representation of the petitioner, it may be noted that the Department held that the absence of the petitioner between 16th February, 1996 to 15th August, 1996 would be treated as „leave‟ granted to the petitioner. 3 It was also held that the period for which the petitioner had not joined at Imamganj, Gaya would be treated as „leave without pay‟ and he would not be entitled for any increment for the period of unauthorized absence. The petitioner challenged the order dated 23.07.1999 issued on 24.07.1999 by filing CWJC No, 7909 of 1999. It appears from the order of this Court that the petitioner was posted in the Primary Health Centre, Imamganj, Gaya where he continued up to 1996 and proceeded on leave on the ground of illness of his father. The order impugned i.e. the order dated 24.07.1999 indicates that the petitioner should rejoin the post at Imamganj. According to the counter affidavit, the petitioner did not rejoin till 15.05.2002, despite the orders of this Court. The occasion to come to this Court has arisen out of the order as contained in Annexure-4 series (Annexure-W to the counter affidavit). After discussing the history of the case and the orders of this Court, it appears that on 14.07.2000, newspaper advertisement was published indicating that the petitioner was absent from his duty and asking him to show cause. A second advertisement was subsequently published on 16.12.2001. The petitioner did not respondent either to the earlier publication or the second publication in the 4 newspaper. Therefore, the order has been issued vide letter no. 2866 dismissing the petitioner from service. The main complaint of the petitioner is that once it is accepted that the petitioner was working at Imamganj on 15.05.2002, the department ought to have served him a copy of the charges, so that he would know the allegations against him, considering the fact that the final order has only been issued in the year 2004, dismissing the petitioner from service. The ground that the petitioner did not reply to the show cause issued to him would automatically fall in view of the statement given in the counter affidavit at paragraph 40, wherein it is stated that “thereafter only on 15.05.2000 (wrongly mentioned as 2000 in stead of 2002), Dr. Rohtagi reported for duty at Imamganj Government Hospital”. This leads this Court to conclude that the petitioner had joined Imamganj in 2002 (unless this fact is untrue). In the result, I quash the order issued vide memo no. 1219 dated 27.07.2004 and remit the matter back to the concerned authority, who would be at liberty to initiate a proceeding from the stage of service of fresh charges on the petitioner. The petitioner is directed to co- operate in the departmental proceeding and accept the charges issued to him. The petitioner would not have the liberty to say that he did not have knowledge of the 5 proceedings. The petitioner will inform the authorities if he has changed his address. The respondents while conducting the departmental proceeding should take into account his joining on 15.05.2002 and examine whether the petitioner was present and working at Imamganj, after he had allegedly joint at the said place. The petitioner is directed to bring this order to the notice of the Principal Secretary, Department of Health, Government of Bihar, Patna, within a period of eight weeks from the date of receipt of a copy of this order, who will pass orders to initiate departmental proceedings forthwith. In the result, this writ application is allowed. Anand ( Sheema Ali Khan, J. )