IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7191 of 1998 Dr. Abdul Wahab, son of late Abdul Ghani, retired Professor of Surgery, S.K. Medical College, Muzaffarpur at present residing in Mohalla Rahem Khan, P.S. Laharisarai Muffasil Dist. Darbhanga. --------- Petitioner Versus 1. The State of Bihar. 2. Commissioner cum Secretary, Department of Health, Govt. of Bihar, Patna. 3. Additional Secretary, Department of Health, Govt. of Bihar, Patna. 4. Special Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 5. Special Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, Patna. 6. Accountant General, Birchand Patel Marg, Bihar, Patna. ---------- Respondents ----------- 4 29.7.2011 Having heard Mr. Ajay Kumar Thakur, learned counsel for the petitioner and counsel for the State, this Court, in relation to the following prayer:- “1. That this is an application for issuance of an appropriate writ, order or direction for setting aside the order as contained in Memo no. 496/37/Health/ Patna dated 3.7.96 issued by the Additional Secretary, Department of Health, Medical Education and Family Welfare, Gvot. of Bihar by which it was communicated to the petitioner that for the period from 7.1.1982 to 3.11.1986 and 4.11.1986 to 11.11.1990 will be treated as a break in service in the entire service period of the petitioner.” would find that when the respondents themselves have admitted in the counter 2 affidavit, reading as follows:- “4. That this case has been filed by the petitioner on order passed for break in service by respondent State for unauthorized absence due to availed job in Cairo, Saudi Arabia. The petitioner was granted one month leave vide letter no. 2261(3) dated 5.12.1981 to appear an interview in Cairo and he never turned up after the expiry of said leave. The petitioner left for Cairo in the forenoon of 7.12.1981 after entrusting his charge. According to above sanctioned leave Dr. Abdul Wahab had to give his joining in Health Department on 7.1.1992. The petitioner remained absent from duties till 3.11.86. The petitioner gave joining in the department on 4.11.1986 and remained willfully absent after joining till 11.11.1990. The respondent state has taken decision to break in service w.e.f. 7.1.1982 to 3.11.1986 and 4.11.1986 to 11.11.1990 vide letter no. 496(3) dated 3.7.1996. In this respect the State has taken a policy decision. According to this policy the under mentioned action should be done against those medical officers who remained unauthorized absent in the foreign country and returned to India before 5 years. (i) The unauthorized absent period will be treated break in service and no payment of pay etc. will be made. (ii) A departmental proceeding may 3 be started for unauthorized absent and give hard punishment to them.” it would be difficult for this Court to approve the impugned order of break in service of the petitioner for a period 7.1.1982 to 17.6.1990 as communicated in Health Department letter no. 1077 dated 18.9.1997 contained in Annexure-A to the counter affidavit. The reason for the same is also very simple. The petitioner became absent from duty by way of remaining on unauthorized leave from 7.1.1982, inasmuch as, his period of initial one month leave had expired on .1.1982 and thereafter there was no extension of leave and the petitioner therefore had to resume his duty. The respondents, however, in the counter affidavit, have themselves admitted that the petitioner had subsequently joined in the department on 4.11.1986. It however does not become clear thereafter as to how from 4.11.1986, the petitioner could be held to be wilfully absenting himself on duty till 11.11.1990, inasmuch as, the respondents have themselves ultimately found the petitioner to be working from 18.6.1990 by way of waiting for posting in the subsequent order dated 4 18.9.1997. In that view of the matter, this Court would remit the matter back only so far it relates to the break in service for the period 4.11.1986 onwards, inasmuch as, if the petitioner can prove of his reporting to the Health Department on and after 4.11.1986, the respondents would take a fresh decision as with regard to the condonation of break in service from that day i.e. 4.11.1986. It is, however, made clear that the petitioner must produce his passport on which he had gone to Cairo, Saudi Arabia in the relevant period and in particular the passport that he had possessed in the years 1986 to 1990. From such passport, it should be verified as to whether the petitioner after giving joining on 4.11.1986 had again left the country for any foreign country including Cairo, Saudi Arabia where he was earlier employed between January 1981 to November 1986. This Court would expect that a fresh decision in accordance with law as with regard to the break in service of the petitioner will be taken by the Principal Secretary, Health within a period of six months from the date the petitioner would 5 appear before the Principal Secretary, Health with his passport, in question, and also any other evidence that he may choose to rely in support of his case. The Principal Secretary of the Health Department would also be under obligation to pass a reasoned order. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)