IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7247 of 2008 DR.(SMT.)SHEELA VERMA, W/O SRI PRASHANT KUMAR VERMA, R/O SHIVAM COTTAGE, ROAD NO.6/C, P.S.- KADAM KUAN, PATNA-800016. ……………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE COMMISSIONER AND SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE JOINT SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE DEPUTY SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5. THE CIVIL SURGEON, NAWADA.……RESPONDENTS. ----------- For the Petitioner : Mr.Shailendra Kumar Sinha, Adv. and Mr. Anil Kumar Sinha Adv. For the State : Mr.Shivam Singh, AC to AAG-I. ------------ 4 03.08.2011 Petitioner has filed this writ application for quashing of a resolution dated 06.11.2001, contained in memo no.1486(2), issued by the Deputy Secretary, Health Services, Government of Bihar (Annexure-15), by which, pursuant to a departmental proceeding, her services have been terminated on account of unauthorized absence from duty from 06.10.1992. Short facts of the case are that up to 1992 petitioner was posted as Registrar in the Department of Gynaecology & Obstetrics in Nalanda Medical College & Hospital, Patna. On completion of her tenure she submitted her joining in the Department on 30.04.1992 where 2 she remained waiting for posting for some time and, finally by memo dated 07.08.1993, she was posted at Nawada in P.P. Programme under the control of the Civil Surgeon. Accordingly she submitted her joining on 07.10.1993. After performing her duties for a few days she fell ill and submitted her application for medical leave on 27.10.1993. Her case is that her husband was/is a cardiac patient for which it was essential for him to remain in Patna. During that period, her daughter also was suffering from acute Jaundice and her father-in-law, on account of illness, was already confined to bed. Hence, she was compelled to continue on leave. Therefore, she sent successive applications by registered post for extension of her medical leave. During this period her father- in-law died. Due to all these circumstances, she could not join her duty for quite some time. Hence, by order contained in letter no. 336(18) dated 19.02.1996 (Annexure-9), she was put under suspension. She came to know about the same quite late and thereafter she submitted her joining in the Secretariat on 16.01.1997. 3 Subsequently, charge was framed and by resolution of the Department dated 24.02.1996 (Annexure-10), a departmental proceeding was initiated against her and an Inquiry Officer was also appointed. Accordingly, Inquiry Officer sent letters to her through registered post for appearing in the inquiry and for filing show cause. She did not appear in the proceeding on the dates fixed. Hence, a notice in the newspaper was published on 20.02.1998 pursuant to which she appeared before the Inquiry Officer and filed her show cause. She further appeared in the inquiry and also filed her written statement. The Inquiry Officer considered the show cause of the petitioner and finally submitted his report contained in memo no.2469 dated 02.05.1998 (Annexure-12). The Inquiry Officer found her guilty of unauthorized absence with effect from 07.10.1993. Thereafter, second show cause notice was issued to the petitioner, in reply of which she just referred to her earlier show cause filed in respect of the charges and requested the same to be considered. Finally, the punishment order was issued vide resolution contained in 4 memo no.1486 (2) dated 06.11.2001 (Annexure- 15) by which, on account of unauthorized absence from duties with effect from 06.10.1992, she was dismissed from service. Petitioner filed an appeal against the punishment, addressed to the Commissioner- cum-Secretary, on 06.05.2002 (Annexure-16). Her case is that for quite some time she did not receive any communication in respect of the appeal filed by her. Hence, she filed another application before the Commissioner- cum-Secretary on 31.07.2007 (Annexure-17) requesting for information with regard to appeal filed by her. In response to this, she was finally informed by letter dated 31.12.2007 (Annexure-18) that communication in respect of her representation dated 06.05.2002 had already been sent to her by letter no. 973(9) dated 28.10.2003. A copy of the said letter dated 28.10.2003 is annexed as Annexure-19 which shows that she was informed that against the order of punishment, which was issued as per the decision of the Cabinet, no appeal was maintainable. Stand of the petitioner is that this letter was not received by her as by the 5 time the same was sent to her she had changed her residence and had informed the Department about the same. Still the communication was sent on her old address which she did not receive. Coming to the merits of the case, from the order of suspension of the petitioner annexed as Annexure-9, it appears that, in the Department a letter was received from the District Magistrate, Nawada dated 17.10.1995, enclosing a communication of the Civil Surgeon-cum-Chief Medical Officer, Nawada dated 07.06.1995, from which it appeared that the petitioner was absent from duty as Medical Officer, P.P.Programme, Sadar Hospital, Nawada after joining in the Hospital on 06.10.1992. In view of this information, under the orders of the Government, she was put under suspension on 19.02.1996 by the said Annexure-9. Another resolution was issued on 24.02.1996 initiating a departmental proceeding against her under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules 1935 and a charge memo was enclosed with the same. The charge framed against the 6 petitioner was on account of her unauthorized absence from duty from 06.10.1992 and the evidence in support of the charge was the said letter of the District Magistrate, Nawada dated 27.10.1995. From the resolution (Annexure-10) by which proceeding was initiated against the petitioner it appears that the same was sent to her at the Sadar Hospital, Nawada. Apparently, she was not there as the charge against her was in respect of her continued unauthorized absence from there. Still the same was not addressed to her at her permanent residential address which must have been available in the records of the respondents. This is being noticed only for the reason that it has been mentioned in the inquiry report that the registered letters sent by the Inquiry Officer to the petitioner were not responded to by her and only after notice was published in the newspaper she appeared in the proceeding. Annexure-11 is the show cause which petitioner filed in response to the notice published in the newspaper on 12.02.1998. In her show cause, she has stated that on being 7 relieved from Nalanda Medical College she had submitted her joining in the Department on 30.04.1992 where she remained waiting for posting till 07.08.1993. When notification was issued posting her under the P.P.Programme in Sadar Hospital, Nawada under the control of the Civil Surgeon, she submitted her joining there on 07.10.1993. In support of these facts, along with the show cause, she annexed the relevant notifications and orders. She further stated that on 27.10.1993 she fell ill and submitted an application for medical leave. She has said that her husband is a Cardiac patient and her daughter was suffering from acute Jaundice. She also said that her father-in-law was confined to bed due to illness and ultimately died. She mentioned that due to all these reasons she had sent application by registered post for medical leave and for extension of the same to the Civil Surgeon, Nawada. It is mentioned that the registered envelopes were not received in the office of the Civil Surgeon, Sadar Hospital, Nawada and were returned. In support of this stand in her show cause, she had annexed certain 8 documents. She has said that due to problems in the family she approached the Minister of the Department who recommended to the Health Commissioner to look into the matter. In support of this also she annexed a document with the show cause. Finally, she said that she was unable to join her duties anywhere else than in Hajipur. Hence, if it was not possible to post her there she requested that she should be allowed voluntary retirement and her absence should be adjusted against her admissible leave. The Inquiry Officer has noticed the stand of the petitioner in her reply. However, his report shows that he relied upon the statement of the Civil Surgeon, Nawada who appeared in inquiry, that applications of the petitioner for medical leave were not entered in the register of the office and hence, the registered letters were not received. On this he assumed that the petitioner had not submitted any application for extension of medical leave. Hence, he found her guilty of unauthorized absence. The Inquiry Officer has accepted that the petitioner had submitted her joining in 9 Nawada Hospital on 07.10.1993. Hence, he found her guilty of unauthorized absence till she submitted her joining in Secretariat on 16.10.1997, i.e. for a period of 3 years 3 months. Even if the report of the Inquiry Officer is accepted petitioner could not be held guilty of unauthorized absence with effect from 06.10.1992, as mentioned in the charge. The second show cause notice was issued to the petitioner in reply to which she simply relied upon her earlier show cause. However, punishment order has been issued on account of her unauthorized absence from duty with effect from 06.10.1992 itself and she has been dismissed from service. This one fact shows that the Disciplinary Authority did not care to peruse the inquiry report and look to the findings of the Inquiry Officer. Mention of this date in the punishment order clearly shows that the same was issued only on the basis of the charge and not after considering the inquiry report. Secondly, it is not denied that along with her reply to the charge, as contained in annexure-11, petitioner had enclosed certain 10 documents as annexures. Documents in respect of the illness of the petitioner or her family members and her applications for extension of medical leave sent through registered post were Annexures-5, 6, 7, 8, 9 and 10. These annexures petitioner had enclosed with her reply to establish her bonafide in her absence from duty. The inquiry report does not show at all that these annexures were considered by the Inquiry Officer. It is true that the Inquiry Officer notices the stand of the petitioner in his report and notices the dates on which the petitioner claims that she had sent registered letters for extension of medical leave. But merely on the statement of the Civil Surgeon that the registered letters were not entered in the register of his office and hence they were not received, he came to the conclusion that the petitioner was unauthorizedly absent during the period. In this context, the Inquiry Officer did not at all apply his mind that the petitioner in her show cause itself had stated that the Civil Surgeon had not received the registered 11 letters and hence they had returned. The annexures with the show cause were therefore required to be looked into by the Inquiry Officer as to whether they were indeed sent to the Civil Surgeon office and had returned from there with endorsement of refusal of the delivery or non-availability of Civil Surgeon, or not. To ascertain this fact, on the last date, this Court directed learned counsel for the petitioner to produce the copies of the annexures which were enclosed with her show cause. Accordingly a supplementary affidavit has been filed by the petitioner enclosing photocopies of the registered envelopes and A/D cards as well as the receipts of the post office to show that in fact the letters were sent through registered post addressed to the Civil Surgeon, Nawada along with A/D cards and they had returned. Learned counsel for the petitioner has also produced the original of the registered envelopes with A/D cards and the registration receipts. These original records show that the petitioner had indeed sent some communication to the Civil Surgeon which according to her were sent for 12 extension of medical leave. Grant of leave to an employee is the discretion of the employer. No employee can claim it as of right. But application for leave for any other purpose and leave on account of illness have to be dealt with differently. Leave for any other purpose does not have an element of urgency in it. An employee can surely applied for leave for any such purpose, but he has to wait for grant of the same before relinquishing his duties and proceeding on leave. But so far as leave on medical grounds is concerned, it has an inherent element of urgency in it. No government servant after his/her sudden illness or of his/her close family members or dependents is supposed to submit an application for leave and wait for it to be granted and then only proceed for treatment of the ailment. Considering the bureaucratic lethargy, at times, it may become too late and fatal by the time application in processed and leave is granted. Therefore, whenever an application is submitted by an employee on the ground of illness or illness of his/her family members or dependents, the 13 same has to be considered by the employer in the context of illness disclosed in the application and, in the meanwhile, the employee is entitled to proceed on leave, subject to rejection of the application and communication of the same to him/her at his/her residential address or the place he/she may be found stationed from the records. If the application remains pending with the employer for days and months the employee is not supposed to wait for its acceptance and then only proceed for his/her treatment or treatment of his/her family members or dependents. Similarly when application for extension of medical leave is sent, the same has to be considered by the employer, and if the same is not rejected and its rejection is not communicated to the employee at the address mentioned in the application, the employee cannot be treated as absent from duty unauthorizedly. In the cases of application for medical leave it is the rejection of the application which must be communicated to the employee, to hold him/her as unauthorizedly absent thereafter. So far as this case is concerned, it 14 is apparent that the Inquiry Officer has not considered the documents, placed by the petitioner along with her show cause as annexures, to test her bonafide and correctness of her stand that she had been sending applications for extension of medical leave through registered post. As noticed earlier, the Disciplinary Authority did not care to apply his mind to the inquiry report as the same is apparently based only on the charge framed against the petitioner, notwithstanding the fact that in routine manner it has been mentioned in the punishment order that the inquiry report and reply of the petitioner to the second show cause have been considered by the Disciplinary Authority. The order does not also show that in fact independent mind was applied by the Disciplinary Authority to the materials produced by the petitioner along with her reply. Petitioner had also offered for allowing her voluntary retirement from the date of her absence or any subsequent date. But the said request of the petitioner was also not considered by the respondents. In the circumstances, this Court 15 finds that the inquiry report (Annexure-12) and the impugned resolution containing order of punishment of dismissal of the petitioner (Annexure-15) are vitiated in law and hence the same are set aside. The respondents are directed to consider the show cause filed by the petitioner to the charges, as contained in Annexure-11, in right perspective along with the annexures attached to it and also consider the request of the petitioner to allow her voluntary retirement with effect from the date of her absence itself, which in the opinion of this Court, may be an appropriate action by the respondents in the facts and circumstances of the case. The re- consideration of the case of the petitioner, in the light of the orders of this Court, must be done and appropriate orders must be passed within three months from the date of receipt/production of a copy of this order. The writ application is, accordingly, allowed with the aforesaid observations and directions. Arvind/ ( J.N. Singh, J.)