IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1014 of 2008 Dinesh Prasad Saha, son of late Laxmi Prasad Saha, resident of Masack Chak, 31 S.C. Road Bhagalpur, P.O. + P.S. + District Bhagalpur………………………………………………………..…..Petitioner Versus 1. The State of Bihar through the Secretary, Department of Health, Govt. of Bihar, New Secretariat, Patna 2. The Secretary, Department of Health, Govt. of Bihar, New Secretariat, Vikash Bhawan, Patna. 3. The Deputy Secretary, Department of Health, Govt. of Bihar, New Secretariat, Patna 4. The Civil Surgeon-cum-Chief Medical Officer, Samastipur, District Samastipur. 5. The Deputy Superintendent, Sub-Divisional Hospital, Roshra, District Samastipur………………………………………..………………..Respondents ----------- 2 06.09.2010 Heard learned counsel for the petitioner as well as learned counsel for the State. The allegation against the petitioner is of his unauthorized absence from duty since 17.07.2002 to 10.06.2003 from the post of Dental Surgeon in Sub-Divisional Hospital, Roshra. A notice was issued to him vide Annexure-5 dated 12.06.2003 as to why a disciplinary proceeding may not be initiated against him. Petitioner submitted his representation vide Annexure-6. In his representation, he clearly took the stand that on account of illness of his old mother, he proceeded on leave after submitting his 2 application and thereafter he himself fell ill and intimated this fact to the respondents by registered post. After receipt of the said representation, respondents passed orders of punishment vide Annexure-9. In the meanwhile, on the orders of the Department, the period of his absence was regularized vide Annexure-3. The order of punishment is cryptic one. It mentions that after consideration of explanation of the petitioner, the same was rejected and order of minor punishment of censure and withholding of two annual increments without cumulative effect was passed. In addition to that, period of his absence from duty was ordered to be adjusted against his admissible leave without pay. Petitioner filed a representation against the said punishment in the Department vide Annexure-10. The same remained pending. Therefore, petitioner moved this Court through CWJC No. 10236 of 2004. The said writ petition was disposed of by order dated 26.06.2006 vide Annexure-13. This Court directed the concerned authorities of the Department to consider his representation/appeal. Thereafter petitioner filed another 3 representation before the Secretary, Department of Health, Government of Bihar vide Annexure-14. In this representation he referred to the order of the Court by which authorities were directed to consider the earlier representation of the petitioner dated 02.12.2003 (Annexure-1). The appeal of the petitioner was rejected finally vide Annexure- 15 in one sentence that on consideration, no new fact appeared in the representation/appeal of the petitioner filed on 14.07.2006 (Annexure-14). The Appellate Authority completely failed to appreciate the fact that this Court directed it to consider representation / appeal of the petitioner filed on 02.12.2003 (Annexure-10) which was Annexure-7 to the earlier writ application. The representation dated 14.07.2006 (Annexure- 14) is an intimation to the Appellate Authority about the orders passed by the Court. Therefore, it is apparent that the Appellate Authority misdirected himself by treating the said representation of the petitioner dated 14.07.2006 as his original representation / appeal and rejected the same. Clearly, the Appellate Authority overlooked 4 the fact that under the orders of this Court, he was required to consider earlier representation of the petitioner dated 02.12.2003 which was already pending before him. Therefore, the appellate order apparently suffers from non-application of mind. The same is, accordingly, quashed. In normal course, this Court would have remitted the matter back to the Appellate Authority to pass a fresh reasoned order after consideration of the representation of the petitioner. However, punishment order, as contained in Annexure-9, is also apparently a non-speaking order and cryptic one. Show cause reply of the petitioner filed in response to the said notice has not been considered by the Disciplinary Authority at all. In his show cause reply, petitioner had clearly explained reasons for his absence and had taken stand that he had sent his leave application by registered post. Clearly, no opportunity was given to the petitioner to establish this fact nor any finding was arrived at by the Disciplinary Authority by referring to the records that this plea of the petitioner in his show cause reply was false. The punishment 5 order also suffers from the vice of non- application of mind. The same is quashed. The question is as to whether the matter should be remitted back to the Disciplinary Authority to consider show cause reply of the petitioner afresh, grant him opportunity to establish his case and pass a reasoned orders in the matter, or not. Mr. Shankar Prasad, learned counsel for the petitioner, submits that services of the petitioner were regularized by the Department which is evident from Annexure-3. He also submits that petitioner has superannuated with effect from 31.01.2010. He submits that the respondents have not calculated and fixed pensionary benefits of the petitioner and have not paid to him anything under any head. In the circumstances, this Court feels it appropriate to restrain the respondents from taking any further step in the matter against the petitioner. The period of absence of the petitioner from his duty has been adjusted against his admissible earned leave. Therefore that part of the order of the respondents is not interfered with. However, so far as withholding of two 6 annual increments of the petitioner is concerned, the same is set aside. Respondents are directed to calculate pensionary benefits of the petitioner accordingly and pay the same within a period of three months from the date of receipt/production of a copy of this order. This writ application is allowed to the extent indicated above. BT (J. N. Singh, J.)