IN THE HIGH COURT OF JUDICATRUE AT PATNA CWJC No. 6787 of 2008 Dr. Vijaya Laxmi Kundra, aged about 61 years, W/o Dr. R.B. Singh, resident of House No.60, LIC Colony, Kankarbagh, P.S. Kankarbagh, District Patna……………………………………………….Petitioner Versus 1. The State of Bihar. 2. The Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna. 3. The Director, Health Services. 4. The Under Secretary to the Government, Department of Health, Bihar, Patna. 5. The Joint Secretary to the Government, Department of Health, Bihar, Patna….......................Respondents *** For Petitioner: Mr. Chittaranjan Sinha, Sr. Advocate with M/s Sharad Kumar Sinha & Manoj Kumar, Advocates For the State : Mr.Tej Bahadur Singh, Addl. Advocate General No.7 *** 2. 22.07.2011 Heard learned senior counsel for the petitioner as well as learned counsel for the State. Petitioner, who at the relevant time, was a lady Medical Officer in M.J.K. Hospital, Bettiah, has challenged the order of punishment passed against her, vide resolution of the Government dated 01.12.2005, as contained in Annexure-14 by which her services have been terminated on conclusion of a departmental proceeding, on account of unauthorized absence for more than five years. She has also challenged 2 the order passed in her appeal, vide communication dated 12.11.2007, as contained in Annexure-17. Learned senior counsel for the petitioner has straightway placed reliance upon the enquiry report of the Enquiry Officer as contained in Annexure-9 and has submitted that the Enquiry Officer did not give any finding in respect of unauthorized absence of petitioner as found proved. He submits that the Enquiry Officer has taken notice of the facts and materials produced by petitioner and her postal certificates of having forwarded the applications from time to time for grant of medical leave. He also noticed that the petitioner submitted her joining on 09.01.1999 but the same was not accepted. He points out that the Enquiry Officer has concluded the enquiry only with an opinion that as no post was vacant, she could have been relieved to submit her joining in the Department for appropriate posting. He submits that on the basis of the enquiry report, a second show cause notice was issued to the petitioner along with which the enquiry report was 3 attached. He has referred to the contents of second show cause notice dated 08.04.2004, as contained in Annexure-11, and has submitted that nowhere in the second show cause notice it has been mentioned that charge of being unauthorizedly absent for more than five years was found proved in the enquiry or, on the facts appearing in the enquiry report, the Disciplinary Authority himself was satisfied that the charge stands proved which he had the liberty to do. But, he submits that if there is no whisper in the second show cause notice that the charge was proved against him either in the enquiry or as per the satisfaction of the Disciplinary Authority, it was not necessary for the petitioner to explain the circumstances under which the enquiry report was submitted and she was not required to point out the infirmity or non- consideration of any material by the Enquiry Officer. Learned Additional Advocate General No.7 appears on behalf of respondents. He submits that on the face of it, it is 4 admitted position that petitioner was absent unauthorizedly for more than five years. He also submits that apparently, submission of the said applications by her through UPC from time to time for extending the period of her medical leave does not inspire confidence. In the circumstances, on the basis of uncontroverted facts, charge of unauthorized absence of the petitioner for more than five years stands proved which is sufficient for inflicting major punishment upon the petitioner. Learned Additional Advocate General may be right. The facts do show that the petitioner has hardly any convincing explanation for her absence from duties for more than five years without any validly sanctioned leave. However, a question arises that even if facts proved the charge, can a Disciplinary Authority deny adequate opportunity to a delinquent to submit his/her defence or explanation to the charge. The second show cause notice does not show that the Disciplinary Authority had come to a clear opinion that on the basis of admitted facts, the charge 5 stood proved. In the second show cause notice, it is noticed that there was charge against the petitioner of unauthorized absence from 16.08.1994 to 16.08.2002 in respect of which proceeding as initiated by Resolution No.151 (3) dated 04.02.2003 and it is said that the enquiry report submitted by the Enquiry Officer in that respect was being enclosed with the second show cause notice requesting petitioner to submit her reply. As the enquiry report also shows that there was no finding or clear opinion of the Enquiry Officer that the charge stood proved against the petitioner, the petitioner had no communication from the Disciplinary Authority that the Disciplinary Authority had found the charge proved. In the circumstances, in view of this vague second show cause notice and enquiry report without any findings, petitioner was not required to explain her conduct further. As such, this vague enquiry report and vague second show cause notice could not be the basis for issue of punishment order against the petitioner terminating her services. 6 Clearly, there has been infraction of Principles of Natural Justice in the case by not communicating the petitioner a clear finding in respect of the charge framed against her giving her opportunity to meet the finding. In the circumstances, punishment order as contained in Annexure-14 and the appellate order as contained in Annexure-17 are quashed. The matter is remitted back to the Disciplinary Authority with liberty to him to issue fresh second show cause notice to the petitioner or to take any other step as he may consider appropriate, in the proceeding in accordance with law. It is made clear that on account of quashing of the impugned order of termination and the appellate authority, petitioner shall be treated as under suspension from the date of termination order itself. The writ application is allowed to the extent, as indicated above. BT (J. N. Singh, J.)