IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15257 of 2005 DR.PREM KUMAR VIDYARTHI Versus THE STATE OF BIHAR & ORS ----------- 7 17.12.2008 Heard counsel for the petitioner and counsel for G.P.-14 for the State as also counsel for respondent No.5, the Accountant General. Reference may be made to the earlier order of this Court dated 24.9.2008, 12.11.2008 and 3.12.2008. Pursuant thereto a supplementary counter affidavit has been filed on behalf of the respondents which answers the query of this Court in the order dated 24.9.2008. In view of the fact that such supplementary counter affidavit has also been replied by the petitioner, the pleadings in this case is complete in all respect and accordingly, this writ application after hearing of the parties is being disposed of . In this writ application the prayer of the petitioner is to quash the order of punishment dated 30.6.2005 inflicting him two separate and distinct punishment, namely : - (I) No payment of salary for the period of absence from duty beginning from 23.4.1993; and (II) Withholding of 50 % of the pension of the petitioner, permanently. Counsel for the petitioner while assailing the impugned order of punishment has basically raised only three issues namely:- (a) The charge was framed for the period 23.4.1993 - 2 - to 4.12.1997 and therefore any punishment passed in relation to an event on or after 4.12.1997 is definitely unsustainable, being not the part of the charge. (b) On a mere perusal of the enquiry report, it would be found that the principles of natural justice were not followed and the charges were also not proved (c) The prejudice on account of violation of the principle of natural justice was writ large on the face of the record inasmuch as Bachcha Prasad, a witness was not allowed to be cross-examined by the petitioner in course of departmental enquiry. The Issue Nos.(b) and (c) are taken first because that will also have a direct bearing on the issue No.(a). From a reading of the memo of charge as reproduced hereinbelow:- ^^¼1½ Mk0 fon~;kFkhZ] izkFkfed izkFkfed LokLF; dsUnz] ek>h esa ;ksxnku djus ds ckn ls fu;fer :i ls viuk dk;Z lEiknu ugha dj cdk;nk vkdj mifLFkfr cuk fn;k djrs gSA mifLFkfr iath ls mudk mifLFkfr lR;kiu djus ij ik;k x;k fd ekg flrEcj 92 ,oa vDVwcj 92 esa 23-12-92 rd mifLFkfr cuk Fkk 'ks"k esa vodk'k vafdr FkkA ¼2½ ekg tuojh 93 esa fnukad 21-1-93 dks tkap - 3 - ds nkSjku fnukad 15-1-93 rd mifLFkr cuk ik;k x;kA tkap ds nkSjku ,d fnu Hkh ckg~; d{k iath esa muds }kjk ejht ns[kk ugha ik;k x;kA buls Li"V gksrk gS fd os ;nk&dnk vkdj flQZ mifLFkfr cuk dj [kkukiqjh djrs gS] lgh :i ls dk;Z lEiknu ugha djrs gSA ¼3½ fnukad 6-9-94 dks iqu% tkap ds nkSjku Mk0 fon~;kFkhZ ds laca/k esa tkap iM+rky fd;k x;kA rFkk Mk0 cPpk izlkn] izHkkjh fpfdRlk inkf/kdkjh ls iwN&rkN dh x;hA Mk0 izlkn izHkkjh ds }kjk lwfpr fd;k x;k fd Mk0 fon~;kFkhZ fnukad 23- 4-93 ls yxkrkj vktrd vius dRrZO; ls fcuk lwpuk vuqifLFkr gSA os dgka gS bldh Hkh tkudkjh ugha gSA** it would be found that the petitioner, a Doctor posted as a Medical Officer deputed against leave reserve post while being posted as a Medical Officer in Primary Health Centre, Majhi in the District of Sasaram, was found to be absent from duty and such period of absence was bifurcated into three parts namely, from (i) November and December 1992, (ii) January 1993 to August 1993 and (iii) September 1994 onwards. It is thus crystal clear from the records that the petitioner was facing a direct allegation of being absent from duty and it was in this - 4 - regard that the Enquiry Officer had looked into the specific defence of the petitioner that he was present from duty and had examined patient on 26.9.1992, 29.1.1993, 4.2.1993, 5.2.1993, 12.2.1993, 19.2.1993, 26.2.1993, 5.3.1993, 19.3.1993 and 20.3.1993. However when the Enquiry Officer had made, assessment of the aforementioned defence on the basis of the materials on record, it was found that prior to 15.1.1993, the petitioner had examined patient only on one day i.e. 26.2.1992. The petitioner in fact did not adduce a any evidence on the issue that he being a Doctor posted in a Primary Health Centre had actually examined any patient in Out Patient Door. Obviously, the first part of the charge in view of the absence in period from November 1992 to September 1993 was found to be partially proved inasmuch as the Enquiry Officer had found the presence of the petitioner only on one day in the Out Patient Door i.e. 26.9.1992 before 15.1.1993. The second part of the charge of the petitioner being absent from duty in fact was also found to be proven from his own admission before the Enquiry Officer wherein it was stated that from 23.4.1993 he was absent from duty on account of illness of his father. The finding of the Enquiry Officer in this respect is that the petitioner though claimed to have submitted application for his absence from duty from 23.4.1993 but such application were not available in the office. The petitioner thereafter is said to have joined on 5.12.1997 at Chapra and that is how Enquiry Officer had recorded a finding that between 23.4.1993 to 4.12.1997 the petitioner was unauthorizedly absent from duty. - 5 - The assessment of the petitioner that simply because he had sent application seeking leave would automatically amount to grant of leave is only to be noted for its being rejected. Under the Leave Rules in the Bihar Service Code every government servant on the eve of proceeding of Earned Leave, has to obtain proper sanction of such leave from his controlling authority. There is absolute want of material to show that on 23.4.1993 when the petitioner became absent from duty he had been sanctioned any leave for the period over four and half years and therefore, even that part of the finding of the Enquiry Officer that the petitioner was absent from duty from 23.4.1993 to 4.12.1997 cannot be said to be vitiated by any error much less error of record. At least the petitioner has not been able to pin point any such material produced by him in course of enquiry which could have shown the any flaw in the aforementioned findings recorded by the Enquiry Officer so as to be held either bad or perverse. In that view of the matter, the contention raised by the counsel for the petitioner that he was prejudiced on account of violation of principles of natural justice in course of conducting of the enquiry, proceeding is only to be taken as a ornamental and usual routine criticism of any and every departmental proceeding. In order to stand the test of prejudice on account of alleged violation of the principle of natural justice, the delinquent is required to not only state the facts but also give instances of prejudice suffered on account of alleged violation of principle of natural justice. In this case, however, there is - 6 - no such material on record which could have even otherwise led to a different conclusion as with regard to the findings recorded by the Enquiry Officer. It is in this regard in fact that this Court must also notice the illustrative plea of prejudice to the petitioner on account of non- examination of Bachcha Prasad which is said to have vitiated the entire enquiry on account of violation of principles of natural justice. The petitioner no where in the writ petition has stated that in course of enquiry he had filed an application for examination of Bachcha Prasad, Even in course of submission when confronted Mr. Dayal, learned counsel for the petitioner frankly conceded that there is no document to show that any such prayer was made before the Enquiry Officer for examination of Bachcha Prasad as a witness in the departmental proceeding. Once that position becomes clear that the petitioner had not made such a prayer before the Enquiry Officer, his grievance with regard to violation of principal of natural justice to say the least in this regard must be held to be absolutely based on figment of his imagination. The Enquiry Officer could have only responded to only such demand or query of the petitioner which were made before him. Accordingly, this Court must hold that there was no violation of principal of natural justice in course of departmental enquiry and that the charges of unauthorised absence from duty on various dates .was also proved. The last part of the submission as with regard to Issue No.(a), also needs to be examined in the context of material on record. From - 7 - the memo of charge it would be clear that the same was drawn on 3.8.1994 and therefore, to say that the memo of charge was relating to the charge up to 1997 is definitely itself an error of record. In fact, the date of 5.12.1997 is the date introduced by the petitioner himself because he had after remaining continuously absent from duty from 22.4.1993 to 4.12.1997 on his own volition had gone to report on duty by submitting a joining report to Civil Surgeon, Chapra. It is in this regard that Enquiry Officer has only noted that when an enquiry was entrusted to him in terms of the memo of charge of the year 1994 that, it was found from the material on record that the petitioner had on his own showing remain absent from duty admittedly between 22.4.1993 to 4.12.1997. In fact this aspect of the matter is itself established from Annexure-4, his show cause reply filed by the petitioner to the Enquiry Officer. In that view of the matter, first of all it would not be possible to accept the submission that the finding as against the memo of charge of the year, 1994 is correct upto 4.12.1997 but it is incorrect for the period thereafter. The catch however in this aspect can be understood if it is noted that the petitioner was definitely absent from duty from 22.4.1993 and he is said to have joined his duty on 5.12.1997 at a point of time when his transfer from Chapra was already notified by the Department on 23.12.1995. The petitioner may feign ignorance about this transfer order but then the Department has produced the original file and records to show that transfer was notified and that is how in the supplementary counter affidavit this issue has been specifically - 8 - asserted and answered. That infact is not the end of the matter. The petitioner claims that he was not aware of the transfer dated 23.12.1995 and therefore he had reported at Chapra on 5.12.1997 and when the Civil Surgeon at Chapra refused to accept their join of both on the ground of abolition of the post of Leave Reserve as also on account of the post of Medical Officer of Primary Health Centre, Majhi being already filled up, the petitioner is said to have submitted his joining report in the head quarter of the Health Department at Patna. However, the fact of submission this joining report by the petitioner has been totally denied by the department in the supplementary counter affidavit stating therein that he never reported on duty even at Patna, This is again proved not only from the own conduct of the petitioner because even for conducting the departmental proceeding, the department had to publish a notice in the newspaper, as is also apparent from show cause reply filed by the petitioner contained in Annexure-4. The same notice in the file of the department showing the date of its publication in the daily newspaper “Hindustan” on 15.8.1999. Can it be therefore said that the petitioner was present in Headquarter in the period December 1997 onwards and till the date of his retirement i.e. 31st December 2000 ? The obvious answer is in negative which also gets a clear proof from his own admission made in the show cause reply to the enquiry report. In that show cause reply to the enquiry report, the petitioner infact never took a plea that the enquiry report is bad because findings of his being absent from duty from 5.12.1997 were unfounded as he was awaiting - 9 - for posting in the headquarters. The said reply of the petitioner has not been enclosed with the writ petition but is on the records in the file of the Department. From its perusal it would appear that the petitioner on service of the enquiry report had submitted his show cause reply which reads as follows:- “ Lskok esa] Lkjdkj ds mi lfpo] LokLF;] fpfdRlk] f”k{kk ,oa ifjokj dY;k.k foHkkx fcgkj iVuk A fo’k;( & Li’Vhdkj.k lacaf/k i`PNk dk vuqikyu A izlax( & LokLF; foHkkx ds i= la[;k 9@vk0 05 15@2004 2100 (9) fnukad &13. 11. 2004 egk”k;] mi;qZDr fo’k;d i`PNk&i= fnukad 8.12.2004 dks gLrxr gqvk A tkap izfrosnu ls Li’V gksrk gSa fd foHkkxh; dkjZokbZ ds fy;s lapkyu inkf/kdkjh }kjk vkjksiksa dh tkap o’kZ 1999 esa gh fu’ikfnr dj fn;k x;k gS A lapkyu inkf/kdkjh }kjk vkjksi dafMdk 1 ,oa 2 esa mYys[k fd;k x;k gS fd okg~; i{k esa ,d Hkh ejht esjs }kjk ugha ns[kk x;k gSa A bl lanHkZ esa dguk gS fd eSa izHkkjh ds vkns”kkuqlkj gh vkoafVr dk;ksZa dk fu’iknu rRijrk ds lkFk lnSo djrk Fkk vr,o okg~; i{k esa ejht ugha ns[kus dk vkjksi fcYdqy vk/kkjghu - 10 - ,oa fujk/kkj gS A vkjksi dafMdk&3 esa fnukad 23.04.93 ls yxkrkj vuqifLFkr jgus dk vkjksi gSa rks bl lanHkZ esa mYys[kuh; gS fd eSa vius drZO; ls fcuk fdlh lwpuk ds dHkh Hkh vuqifLFkr ugha jgk gWaw A esjs firkth dh rfo;r [kjkc gks tkus ds dkj.k eSa viuk NqV~Vh dk vkosnu i= Mkd }kjk le;&le; ij vius dk;kZy; iz/kku dks Hkstrk x;k gwW ftlds lk{; esa eSaus lapkyu inkf/kdkjh ds le{k viuk dkxtkr izLrqr fd;k ftlls os larq’V gq, ysfdu mDr vof/k ds fy;s izHkkjh inkf/kdkjh }kjk lR;kiu ds fy;s lapkyu inkf/kdkjh }kjk ekax fd;s vfHkys[kksa dks izLrqr ugha fd;k tk ldrk ;k izHkkjh inkf/kdkjh ds rR{k.k vuqiyC/krk ds dkj.k muds }kjk oLrq fLFkfr dk lR;kiu ugha djkuk ;k tkap dk;Z ds fy, vf/kd`r miLFkkiu inkf/kdkjh }kjk lacaf/kr vfHkys[k vFkok dkxtkrksa dks miyC/k ugha djk;s tkus ds fy;s eSa ftEesokj ugha gwW vr,o ,slh fLFkfr esa esjs fo:} vkjksi fl} djus dk dksbZ vk/kkj ugha gSa A ,slh fLFkfr esa lapkyu inkf/kdkjh }kjk esjs fo:} vkaf”kd :i ls vkjksi fl} dk earO; rF;ghu ,oa fujk/kkj izrhr gksrk gSa A vr( lapkyu inkf/kdkjh }kjk izekf.kr vkjksi ds fo:} leqfpr :i ls lgkuqHkwfriwoZd fopkj djrs gq, eq>sa vkjksiksa ls eqDr djus dk d’V djuk pkgsaxs A bl laca/k esa ;g mYys[k djuk Hkh vuqfpr ugha gksxk fd lapkyu inkf/kdkjh }kjk o’kZ - 11 - 1999 esa tkap izfrosnu lefiZr fd;s tkus ds ckotwn o’kZ 2004 ds vafre efgus esa ljdkj dk /;ku bl vksj x;k gS tcfd eSa tuojh 2001 ls ok/;ZH; lsok fuo`r gks pqdk gwWa rFkk lsokfuo`fr ias”ku miknku ,oa vU; lsok fuo`fr ykHk ls vHkh rd oafpr gksdj vkfFkZd dfBukbZ;ksa ds lkFk & lkFk ekufld ,oa “kkjhfjd :i ls xzflr gks jgk gwW A vk”kk gh ughas iw.kZ vkLFkk gS fd mDr rF;ksa ij fopkj djrs gq, Rofjr dkjZokbZ djuk pkgsaxsa A fo”okl Hkktu g0@& ¼izse dqekj fon~;kFkhZ½ nf{k.kh eafnjh iksLV& th0ih0vks0 iVuk&800001 In the entire show cause not a word was said that the petitioner was present on duty in between December 1997 to December 2001. That apart even the findings given in the enquiry report with regard to absence from duty were only sought to be orally explained without producing any cogent material. In that view of the matter this Court must hold that the reply filed by the petitioner to the enquiry report is itself sufficient to hold that there is no flaw in the impugned order even in respect of holding the petitioner absent from duty from 22.4.1993 to the date of his retirement i.e. 31.12.2008. As a matter of fact, the counsel for the petitioner also could not produce any material to show that the petitioner had discharged his duty even for a day in this period i.e. 5.12.1997 to 31.12.2000. In that view of the matter it must be held that even the third part of the submission as advanced by - 12 - the counsel for the petitioner is devoid of merit and must be rejected. Before parting with, this Court has to take note of the fact that there has been a tendency amongst Government Doctors posted in the field through out the state of remaining absent from their duty and when found so either in course of inspection or in course of departmental enquiry, the usual plea is that since sanctioned leave was admissible to them they were only availing of such leave. Though such explanation in unacceptable for any and every Government servant the same can not be accepted in case government Doctors as their absence from duty without sanction of leave becomes an unpardonable misconduct because they are appointed and posted to treat the ailing poor masses of this State . The State Government does not have such additional strength of doctors that when doctors on duty become absent and proceed on leaves without informing and in fact getting the leave sanctioned, their work can be managed by some on else. Thus the doctors' absence from duty without sanction of leave is for greater grave misconduct. It is this aspect of the matter which makes the gravity of the misconduct of the petitioner for remaining absent from duty for the period of nearly eight years quite serious and uncondonable. Judged in this background the punishment of non-payment of salary for the period of absence and/or withholding of 50% of pension is quite lenient. If the petitioner did not render any service in last eight years of his service, he cannot claim full payment of pension, which is granted as a recognition to satisfactory rendering of service of a - 13 - government servant in terms of Bihar Pension Rules. Thus on closer analysis of the materials on record, this court does not find any error in the impugned order. That being so, .this writ application is devoid of any merit and is accordingly dismissed. Bibhash (Mihir Kumar Jha, J.)