IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11919 of 2005 DR.JAMES PAUL, son of late Paul Berward, Resident of Mohalla Kurjee, P.S. Digha, District Patna … Petitioner Versus 1. THE STATE OF BIHAR through the Chief Secretary, Govt. of Bihar, Main Secretariat, Patna 2. The Commissioner and Secretary, Health Department, Govt. of Bihar, New Secretariat, Patna 3. The Director-in-Chief, Department of Health and Family Planning, Govt. of Bihar, New Secretariat, Patna 4. The Joint Secretary, Health Department, Govt. of Bihar, New Secretariat, Patna 5. The Under Secretary, Health and Family Planning Department, Govt. of Bihar, New Secretariat, Patna … Respondents ----------- 10. 20.6.2011 Heard counsel for the petitioner and the counsel for the State. Learned counsel for the petitioner as with regard to the following prayer made in this application: “(A) For quashing the order dated 18.3.2005 passed by the respondent no.2 on appeal rejecting the appeal memorial of the petitioner without any application of mind which is ex facie illegal, arbitrary and without jurisdiction. (B) For quashing the order dated 3.5.2003 issued under Memo No. 106(3) by the respondent no.5 whereby three punishment, at a time has been awarded without any application of mind, arbitrary and 2 in clear violation of the principle of natural justice. (C) For giving all consequential benefits to the petitioner including the arrear of pay and other allowances.” would submit that the order contained in Annexure 1 being the appellate order cannot be sustained in the eye of law, inasmuch as it has been passed by the same authority who had passed the order of punishment, as contained in Annexure 2. In the considered opinion of this Court such submission of the learned counsel for the petitioner has to be only noted for its being rejected. The order dated 18.3.2005, as contained in Annexure 1, being the appellate order clearly records that the same was passed after obtaining prior approval of the Governor of Bihar. The petitioner is admittedly a gazetted Officer who was governed by the provision of Bihar Civil Services (Classification, Control and Appeal) Rules, 1930 which prior to its being replaced in the year 2005 by the new Rules had provided for an appeal against an order of punishment before the Governor of Bihar. 3 Thus, when the appellate order dated 18.3.2005, as contained in Annexure 1, has been passed with the approval of the Governor of Bihar as clearly mentioned in the order itself, there would be no difficulty in holding that the same has not been passed by the same authority who had passed the order of punishment. It is in fact the requirement of the Rules necessitating filing of an appeal by a Class II Gazetted Officer against his order of punishment which has to be disposed of after obtaining the orders of the Governor of Bihar. Therefore, the order, contained in Annexure 2, the order of punishment of the petitioner expressed in the name of the Governor of Bihar in terms of Rules of Executive Business cannot be said to be passed by the Governor of Bihar whose approval infact was obtained only in course of passing the appellate order. In that view of the matter, the first issue raised by the learned counsel for the petitioner as with regard to aforesaid alleged illegality in the appellate order must be and is rejected. 4 Learned Counsel for the petitioner has then contended that the petitioner was seriously ill at a point of time when he was transferred on 3.6.1997 as an In-charge Medical Officer in Primary Health Centre, Govindpur, Nawadah, and therefore, his not joining the post pursuant to the order of transfer cannot be treated to be a misconduct. In the considered opinion of this Court such plea of his illness had to be established by the petitioner before the Enquiry Officer but from the enquiry report it would appear that the plea of illness of the petitioner could not be explained much less substantiated by him. This Court in fact does not find any error in the finding recorded by the Enquiry Officer that the petitioner had no intention to leave his earlier place of posting and in fact he did not even handover charge of his earlier place of posting and as such, his plea of becoming ill only for transferred place of posting could not be accepted. From the records also it does not transpire that the petitioner had supported his plea of illness 5 by producing any authentic document and/or prescriptions, medicines vouchers etc. which could show that he was suffering from any chronic ailment and/or undergoing treatment on account of which he could not report at his transferred place of posting for a period over five years. This Court, however, would find some force in the submission of the learned counsel for the petitioner that the petitioner had completed service of more than 20 years prior to his becoming absent from duty on 3.6.1997 and if the impugned order causing break in his service is allowed to stand, it would amount to forfeiting his entire past service which in turn would deprive him from getting his pension and other retirement benefit. It is this aspect of the matter which would require a serious reconsideration by the State Government, inasmuch as if the petitioner’s service records were unblemished till 1997 and he became absent from duty from 3.6.1997 to 3.5.2003, he had already stood punished by being deprived of his payment of salary for the aforesaid 6 period and therefore, his being also denied complete pension and other retirement benefit on account of the impugned order causing break in his service would definitely be harsh, excessive and disproportionate. The petitioner as per his own showing of his age mentioned in the affidavit portion to this writ application has attained the age of superannuation and therefore, if there is no subsequent order by virtue of which he had already been allowed payment of retirement benefit including pension, he would be at liberty to file a fresh self contained representation along with this order to the Principal Secretary of Health Department for modifying/reducing the order of punishment for taking away the effect of earlier order of punishment of break in his service. In case such a representation is filed by the petitioner the same shall be disposed of by the Principal Secretary, Health within a period of six months of its receipt in his office. It is made clear that as this Court 7 has remitted the matter back without quashing the order of punishment or consequential appellate order, the petitioner will not be entitled to raise the jurisdiction of the Respondents in case his punishment of break in service is reduced to any other lesser punishment including forfeiture or stoppage of certain amount of his pension. With the aforementioned observation and direction this application is disposed of. (Mihir Kumar Jha,J.) Surendra/