IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3590 of 1996 MOSTT. RENUKA DEVI, WIDOW OF AKHILESH KUMAR SINGH AND RAVI SHANKAR KUMAR SINGH, SON OF DECEASED SOLE PETITIONER AKHILESH KUMAR SINGH, R/O VILLAGE BHAGRASH, P.S. GHANSHYAMPUR, DISTT. DARBHANGA. Versus THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2.COMMISSIONER MAGADH DIVISION, GAYA. 3.DISTRICT MAGISTRATE, GAYA. 4.MR. SARWANAND SINGH, THE THEN SUPPLY OFFICER AND CONDUCTING OFFICER, GYA. 5.THE CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, GAYA. 6.THE ANCHAL ADHIKARI, BODH GAYA, DISTRICT GAYA. ----------- 06/ 03.05.2011 Having heard Mr. J.P. Shukla learned Senior counsel for the petitioner as also counsel for the State as also on perusal of the original records of he office of Collector of Gaya district produced by the learned counsel for the State, this Court is satisfied that the charge against the original petitioner, since, substituted by the petitioner, his wife after his death on 01.03.2004 of remaining absent without sanctioned leave for the period from 01.09.1989 to 27.02.1992 had not been conclusively proved and there were sufficient materials to show that certain informations were also given by the family members of the original petitioner as with regard to his chronic illness which would make the impugned order of punishment vulnerable both on facts and in law. 2 In fact when an inquiry report dated 27.9.1993 in favour of the original petitioner was submitted, the Collector of the district being disciplinary authority had passed the impugned order inflicting punishment on the petitioner by differing with the enquiry report and recording his own dissenting opinion even without giving notice and/or opportunity to the petitioner and in fact, the second show cause notice dated 10.05.1993 was also issued by holding him to be guilty for both the charges even when the inquiry officer had not held him guilty in this respect. The original petitioner in fact on receipt of the second show cause notice had produced his papers relating to his treatment by way of his defence on 26.05.1993 along with his reply to the second show cause notice, containing 16 pages in all including medical certificates showing that he was undergoing treatment for Tuberculosis. Such explanation of the original petitioner was also not altogether disbelieved by the Collector of the district, inasmuch as, he had referred the original petitioner to Medical Board to be constituted under the chairmanship of the Civil Surgeon, Gaya. The opinion of the Medical Board as 3 incorporated and communicated in letter dated 09.06.1994 of the Civil Surgeon Gaya infact was in favour of the original petitioner, wherein it was recorded that he was suffering from different ailments. Such opinion of medical board being relevant for the purpose of this writ application is quoted hereinbelow:- No.1865 From:- A.K Paswan, Civil Surgeon cum C.M.O Gaya, To, The District Magistrate, Gaya. Dated Gaya, the 09.06.1994. Madam, With reference to your letter no. 465 dated 04.06.1994, I have to say that Sri Akhilesh Kumar Singh, Asstt.(under suspension)Bodh Gaya Anchal Office and presently posted at Distt. Estt. Office of Gaya Collectorate appeared in this office with your letter bearing no. 607 dated 29.07.1993.He was directed to appear before the Medical Board along with all relevant papers regarding his ailment. He appeared before the Medical Board and was examined and the papers produced by him were perused on 07.08.1993. He was asked to submit any more papers available with him regarding his ailment which he could not submit file 31.05.1994. He saw me in my office chamber on 31.05.1994 when Medical Board was being held. He showed his inability to produce any more papers. On persual of papers it was found that he was on anti-Tuberculosis treatment. No definite opinion can be given about the duration of the treatment he actually required. He was again examined on 31.05.1994. He was found physically fit to resume his duties, but since he did not appear to be mentally sound, he is advised to consult a Psychiatrist. 4 Yours Faithfully Civil Surgeon cum C.M.O, Gaya" It has to be noted that on receipt of the aforesaid letter of the Civil Surgeon the impugned order of punishment was passed against the original petitioner on 16.08.1994 dismissing him from service, on the ground that the original petitioner was not fit to be retained in the Government service on medical ground. The relevant portion of the impugned order dismissing the petitioner from service reads as follows:- ^^vkjksi i= lapkyu inkf/kdkjh ds tkap izfrosnu ,oa miyC/k dkxtkrksa ij fopkj djrs gq, vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh dks vkjksih }kjk fn;k x;k fpfdRlk izek.k i= ij Li"V djus ds fy, fy[kk x;ka vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh x;k us izfrosfnr fd;k gS fd bUgsa bruh yEch vof/k rd fpfdRlk dh vko';drk oLrqr% Fkk ;k ugha] blds laca/k esa fuf'pr earO; ugha fn;k tk ldrk gS D;ksafd bUgsa fpfdRlk laca/kh dkxtkr tek djus dks dgk Fkk ftls bUgksus ugha tek fd;kA ;g Hkh izfrosfnr fd;k x;k gS fd ;s ekufld :Ik ls iw.kZ LoLFk ugha iks; x;s rFkk bUgsa euksfpfdRld ls tkap djkus dh lykg fnukad 31-5-94 dks fn;k x;kA ijUrq ;s vHkh rd euksfpfdRld ls tkap ugha djk ldsA blls Li"V gS fd Jh flag vius esa lq/kkj ykus ds fy, rS;kj ugha gSA vr% vfHkys[k lafpdk esa miyC/k dkxtkrksa ds voyksdu ls eSa larq"V gwW fd vkjksih ljdkjh lsok ds ;ksX; ugha gSA yEch vof/k rd fcuk vuqefr ds vuqifLFkr jgus laca/kh dksbZ Hkh larks"ktud mRrj vkjksih }kjk ugha fn;k x;k gSA yEch vodk'k ds laca/k es vkjksih ,oa vkjksih ds firk Jh jktsUnz izlkn flag ds }kjk tks vkosnu i= fn;k x;k gS] mlesa bUgsa Vh0 ch0 jksx ls ihfM+r gksus ds mYys[k gS] ekufld jksx ls ughA vr% lgk;d ds fu;qfDr inkf/kdkjh gksus dh gSfl;r ls Jh vf[kys'k dqekj flag] lgk;d cks/kx;k vapy ¼x;k½ lEizfr fuyEcu esa 5 ftudk eq[;ky; ftyk LFkkiuk 'kk[kk esa gS] dks fcgkj ,oa mM+hlk Subordinate Services displine Rules 1935 ds lkFk ifBr cksMZ izdh.kZ fu;ekoyh 1958 ds fu;e la[;k 166¼2½ ;Fkk la'kksf/kr vUrxZr vkns'k fuxZr dh frfFk ls bl ljdkjh lsok ls c[kkZLr fd;k tkrk gsA lkFk gh bl naMkns'k ds lkFk foHkkxh; dk;Zokgh lekIr fd;k tkrk gS** The appellate authority had also thereafter dismissed the appeal preferred by the original petitioner by recording the following findings:- ^^okLro esa lapkyu inkf/kdkjh us Hkh dke esa :ph ugha fy;s tkus ds vkjksi ds lEcU/k esa ek= bruk gh dgk gS fd ;{kek tSlh fcekjh ls xzLr deZpkjh ls LoLFk O;fDr dh rjg dke dh mEehn ugha dh tk ldrhA vr% ;g izfrosnu vkjksi dks ldkjrk ugha gSA fpfdRlk inkf/kdkjh us Hkh bUgsa dRrZO; ds fy, l{ke izfrosfnr fd;k gSA esfMdy cksMZ us Hkh bUgsa 'kkjhfjd :I ls dke djus ds yk;d ik;k gSA ,slh fLFkfr esa buds }kjk vkcafVr dk;Z ds ugha fd;s tkus dk dksbZ vk/kkj ugha gS vkSj buij yk;k x;k ;g vkjksi izekf.kr gksrk gSA viuh fcekjh ds vk/kkj ij yEch vuqifLFkfr ds fy, i;kZIr dkxth lrr esfMdy cksMZ ds le{k ugha izLrqr dj ikuk Hkh buds cpko dks detksj cukrk gSA esfMdy cksMZ us Hkh bUgsa ekufld :I ls vlarqfyr gksus dh 'kadk O;Dr djrs gq, bUga euksfpfdRld ls tkap djkus dh lykg nh FkhA ijUrq lquokbZ ds nkSjku ;g vihy vkosnu esa Hkh vkfFkZd vk/kkj ij ,slk ugha dj ikus ds rdZ ij fopkj djuk laHko ugha tku iM+rkA bl rjg buds vihy vkosnu esa dksbZ u;k ,oa lcy i{k ugha gS tks buds fo:n~/k ikfjr n.Mkns'k ij fopkj djus ds dkfcy gksA ,slh fLFkfr esa ftyk inkf/kdkjh }kjk ikfjr n.Mkns'k esa dksbZ ifjoRrZu djuk laHko ugha tku iM+rk ,oa bls dk;e j[kk tkrk gSA** Thus from the entire examination of the original record it would become clear that original petitioner had not taken any false pretext for his absence. True it is, that he had not been punctual in filing his application 6 for extension of leave but then the letter of the controlling authority of the original petitioner dated 27.07.1991 reading as follows:- dk;kZy;] ftyk inkf/kdkjh ,oa lekgRrkZ] x;k ¼LFkkiuk 'kk[kk½ Kkikad 711 ALFkk0] x;k] fnukad 27 tqykbZ] 91 izsf"kr%& Jh vf[kys'k dqekj flag cYn Jh jktsUnz izlkn flag xzke nkeksnjiqj] iks0 jkslM+kA ftyk leLrhiqjA fo"k;%& ;ksxnku djus ds laca/k esaA bl dk;kZy; ds Kkikad 851Aeq0 fnukad 28-12-90 ,oa 490 fnukad 21-5-91 }kjk vkils ;ksxnku nsus ds laca/k esa fy[kk x;k Fkk ijUrq vkids cnys vkids firkth i=kpkj dj jgs gSa tks mfpr izrhr ugha gksrk gSA vr% vkidks vkns'k fn;k tkrk gS fd fpfdRlk izek.k i= ds lkFk viuk vkosnu i= Lo;a nsa vkSj ;g Hkh lwfpr djas fd vki dc rd NqV~Vh esa jgsaxsA bl vk'k; dk dksbZ vkosnu i= vkids }kjk fn;k ugha x;k gSA g0@& LFkkiuk mi lekgRrkZ] x;kA ** will go a long way to show that the authorities were made aware of the continued illness of the original petitioner and were also in this regard duly informed by the father of the petitioner. In such a situation, this Court would find it difficult to sustain the impugned order of punishment as also the appellate order, inasmuch as, even when the charge of the petitioner remaining absent from duty was not 7 found to be proved by the inquiry officer, the collector being the disciplinary authority had passed the order of punishment by differing with the enquiry report but without giving a show cause notice as required in terms of the judgment of the Apex Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in 1998(7)SCC 84. The collector of the district in the impugned order infact also did not take into account the aforesaid favourable report of the Civil Surgeon to whom he alone had referred the original petitioner for examining his plea of the chronic continued illness of the original petitioner. In such circumstances the impugned order of punishment of dismissal from service of the original petitioner and its affirmance by the Commissioner, Magadh Division being had both on fact and in law cannot be sustained and are accordingly quashed. Since the original petitioner is no longer alive and cannot be reinstated in service, this Court for balancing the equities between the parties by taking into account that the original petitioner was medically unfit to work would hereby hold and direct that the original petitioner would be deemed to have been compulsorily retired on medical grounds on 16.8.1994 inasmuch as there is no dispute that the original petitioner was 8 absolutely not in a position to work on his post in any manner as was also clearly opined by the Civil Surgeon Gaya on account of his very poor health and mental condition. Consequently the original petitioner will be deemed to have been superannuated on account of his physical incapacity w.e.f. 16.08.1994 and therefore the widow, the present petitioner would be entitled for all the consequential benefits to which the original petitioner, could have been entitled in law had he been not been dismissed from service but only compulsorily retired on medical grounds. Such benefits must be paid to the petitioner within three months from the date of receipt/production of copy of this order. That being so, this writ petition to the extent indicated above, is allowed. There would be, however, no order as to costs. Ranjan (Mihir Kumar Jha, J)