IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12633 of 2010 ====================================================== 1. Baban Pandeya S/O Late Rama Nand Pandey R/O Vill.- Sogauli, P.O.- Sogauli, Distt.- East Champaran, Motihari, At Present Posted As Superintending Engineer, Design, Planning And Monitoring Circle, Dehari, Camp Indrapuri .... .... Petitioner/s Versus 1. The State Of Bihar 2. The Principal Secretary Water Resources Development Department, Govt. Of Bihar, Patna 3. The Joint Secretary Water Resources Deptt., Bihar, Patna 4. The Under Secretary (Management) Water Resources Department, Govt. Of Bihar, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Shailesh Kumar Sharma For the Respondent/s : Mr. (Sc11) ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3 02-12-2011 Heard learned counsel for the petitioner and the State. The petitioner superannuated in June, 2011 from the post of Superintending Engineer in the Water Resources Department. He seeks appropriate directions for grant of leave during the period 14.3.2006 to 30.7.2006 as may be available to him in law. Learned Counsel submits that the wife of the petitioner fell seriously ill and therefore the petitioner proceeded on leave after intimating the authorities. As his wife’s condition did not improve he continued on leave giving Patna High Court CWJC No.12633 of 2010 (3) dt.02-12-2011 2 due intimation to them at every stage. After her recovery he joined duty on 31.7.2006. The respondents on 9.10.2006 asked him to furnish proof of his wife’s illness which he did in documentary form on 2.11.2006. It was rejected on 10.1.2007 by a cryptic and non-speaking order. The petitioner represented again on 20.1.2007 which has been rejected on 17.4.2007 that they were ploys to avoid compliance of his transfer orders. The respondents have not passed any orders returning a finding that the petitioner’s wife was not ill and that the ground taken by him was fanciful or fictitious. Learned counsel for the State from the counter affidavit reiterated the correctness of the impugned orders that the petitioner basically proceeded on leave to avoid his transfer orders dated 22.2.2006. He ultimately joined after the respondents cautioned him that if he did not report for duty they may initiate departmental proceedings. The petitioner proceeded on leave citing the health of his wife on 16.3.2006. Prima facie, the Court is not satisfied that his going on leave has a direct nexus to avoid transfer. If the respondents were so sanguine of his conduct contrary to service discipline, they could have initiated appropriate action. The only possible conclusion is that they did not find his plea of wife’s illness fanciful or fictitious. No such material has been placed or even suggestive of the same, by Patna High Court CWJC No.12633 of 2010 (3) dt.02-12-2011 3 the respondents. The only ground urged is that he could have joined the transferred post and then proceeded on leave. The petitioner took a defence. He furnished a ground that his wife was ill because of which he remained absent. He also provided the medical treatment documents of his wife. The defence was either to be believed or disbelieved. If it was not to be believed, there had to be reasons returning a finding that the defence was fake. The impugned orders dated 10.1.2007 and 17.4.2007 are not sustainable. The former grants him earned leave for the period in question without any orders on his leave applications for reasons specified. The latter converts the former to extraordinary leave without any finding that there was no service leave available to his credit. No reasons are mentioned why his defence was not found acceptable. Learned counsel for the petitioner submits that in C.W.J.C. No.2696/10 this Court has observed:- “7. The question whether the petitioner was on leave due to medical grounds or not is a question of fact. It either has to be believed or disbelieved by the respondents. There can be no assumptions or presumptions by them to reject his request for adjusting the period against medical leave. Neither the impugned order nor the statements in the counter affidavit are specific on whether his defence of leave on medical grounds was believed or disbelieved for reasons specified.” The impugned orders dated 10.1.2007 and 17.4.2007 are set aside. They display complete arbitrariness and non- Patna High Court CWJC No.12633 of 2010 (3) dt.02-12-2011 4 application of mind after reference to the order in C.W.J.C. No.2696 of 2010. The respondents are directed to consider his leave application in light of the present discussion in accordance with law and the leave that may be available to him under the service Rules. Let final appropriate orders be passed within a maximum period of eight weeks from the date of receipt/production of a copy of this order as the petitioner contends that he has sufficient leave in the law available. The application is allowed. Krishna Chandra Jha/- (Navin Sinha, J)