IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1185 of 2002 Dr. Binay Prasad, Son of Sri Bishun Prasad, Resident of Mohalla Golakpur, P.O. Mahendru, Police Station Pirbahore, District Patna. ----------- Petitioner Versus 1. The State Of Bihar through the Commissioner and Secretary, Health and Medical Education Department, Government of Bihar, Patna. 2. The Deputy Secretary, Health and Medical Education Department, Government of Bihar, Patna. 3. The Under Secretary, Health and Medical Education Department, Government of Bihar, Patna. 4. The Additional Director, Medical Education, Bihar, Patna. 5. The Principal, Anugrah Narayan Magadh Medical College, Gaya. ------- Respondents ----------- 7 06.07.2010 Heard Mr. Shyama Prasad Mukherjee, learned senior counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as below:- “2(i) For quashing Notification No. 471(17) dated 27th June, 2001, as contained in Annexure-1 to this writ petition, by which the services of the petitioner, has been terminated with retrospective effect from 16.10.1990. (ii) For commanding the respondents to reinstate the petitioner in service with effect from the date of termination of his services and further to regularize the period of absence of the petitioner from 16.10.1990 to 15.12.1993 in accordance with the provisions of the leave rules. 2 (iii) For commanding the respondents to grant all other consequential benefits including the payment of arrears of salary after reinstating the petitioner in service.” Mr. Mukherjee, while assailing the impugned order dated 27.6.2001, has firstly submitted that the order of termination of service of the petitioner can never be retrospective and in fact it has always to be prospective from the date such order was passed. There can be no quarrel on this very settled proposition of law but even if the petitioner’s date of termination is held to 27.6.2001 in place of 16.10.1990, the petitioner will get no advantage because it is the case of the respondents that he had remained unauthorizedly absent from duty since 16.10.1990 initially on account of his illness and later on account of the pendency of the departmental proceeding. The problem, however, for the respondents will also not be over, inasmuch as, even if the aforesaid order of punishment is held to be prospective in nature, it would still transpire from the enquiry report that 3 the enquiry officer had only adopted a unique procedure for holding the departmental enquiry by only interrogating the petitioner by asking question from him and eliciting his answer even when the petitioner had categorically denied the charges in his written statement of defence. Admittedly, the presenting officer had never appeared in course of enquiry and therefore, the enquiry officer had before him no evidence either oral of documentary. Unfortunately, when this aspect of the matter was pointed out by the petitioner on receipt of the enquiry report, the order of punishment does not even remotely deal with any of the contention raised by the petitioner in reply to the second show-cause notice. This Court, therefore, is satisfied that the impugned order of punishment cannot be sustained on the ground of violation of principle of natural justice in course of enquiry as also in course of passing of the final order. The petitioner, however, is facing serious charge of remaining absent from duty without there being sanction of leave and 4 his unauthorized absence by itself can lead to major punishment, specially when the petitioner was a doctor-cum-teacher in a medical college, whose services were essentially required. That being so, this Court would direct the Principal Secretary, Health to initiate a fresh departmental proceeding against the petitioner from the stage of framing of charge. Such a departmental proceeding, however, keeping in view that the petitioner has suffered for a long period, must be completed within a period of nine months from the date of receipt/production of a copy of this order. Any further benefit being claimed by the petitioner of his period of service would squarely remain dependant on the result of the enquiry and the final order passed thereon. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)