IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.355 of 2010 MD. EJAZ AHMAD, SON OF LATE MD. IZHARUL HAQUE, RESIDENT OF MOHALLA- KARBIGAHIYA, P.O.- PRITHVIPUR (CHIRAIYA TAR), P.S.- JAKKANPUR, PATNA- 800001, ASSISTANT, EMPLOYEES STATE INSURANCE DISPENSARY, JAMAL ROAD, PATNA :---PETITIONER. Versus 1. STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, LABOUR RESOURCES DEPTT. GOVT. OF BIHAR, PATNA. 2. MD. VEYAS JEE, THE PRINCIPAL SECRETARY, LABOUR RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. DR. AKHILESH SINGH, THE DIRECTOR, MEDICAL SERVICES, EMPLOYEES STATE INSURANCE SCHEME, UNDER LABOUR RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. DR. BIRENDRA KUMAR THAKUR, THE INSURANCE MEDICAL OFFICER I/C, EMPLOYEES STATE INSURANCE DISPENSARY, JAMAL ROAD, PATNA :----OPPOSITE PARTIES. with CIVIL REVIEW No.271 of 2010 1.THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, LABOUR RESOURCES DEPARTMENT, GOVT. OF BIHAR. 3. THE DIRECTOR, MEDICAL SERVICES, EMPLOYEE STATE INSURANCE SCHEME UNDER LABOUR RESOURCES DEPARTMENT, GOVT. OF BIHAR. 4. THE INSURANCE MEDICAL OFFICER, I/C E.S.I. DISPENSARY JAMAL ROAD, PATNA :--PETITIONER. Versus MD. EJAZ AHMAD, S/O- LATE MD. IZHARUL HAQUE, R/O- MOH.- KARBIGAHIYA, P.O.- PRITHVIPUR TAL, P.S. JAKKANPUR, DIST. PATNA:-- RESPONDENT. ----------- 3. 14.03.2011. Heard learned counsel for the petitioner and the State. 2. The contempt application has been filed asserting non-compliance of the orders of this Court dated 23.11.2009 passed in C.W.J.C.No. 15995 of 2009, Annexure-A, whereunder this Court asked the Director, Medical Services, Employees State Insurance Scheme to consider the case of the petitioner for payment of subsistence allowance. Such prayer has been refused by the Director, Medical - 2 - Services under orders dated 19.03.2010 which is contained in Annexure-C to the review application filed for review of the order dated 23.11.2009 on the ground that petitioner having not reported his attendance at the place of his headquarter is not entitled for payment of subsistence allowance in the light of proviso to sub-rule (iii) (1) of Rule 10 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as the “Rules) which inter alia require the government servant under suspension to mark his attendance at the place of his headquarter. 3. It is submitted on behalf of the petitioner that request of the petitioner for payment of subsistence allowance was refused under order dated 19.03.2010 without appreciating the fact that his medical condition was such that he could not made himself available at the place of headquarter and had requested for change of the headquarter. In support of such plea reliance is placed on the prescription of the Out Patient Department of the Nalanda Medical College Hospital Unit Dr. Prof. A.K.Sinha-II dated 08.01.2010. It is submitted on behalf of the petitioner that if the medical condition of the petitioner as is appearing from the prescription dated 08.01.2010 was not acceptable to the Director, Medical Services - 3 - he ought to have asked the petitioner to appear before a medical board so as to confirm the findings recorded in the prescription dated 08.01.2010. It is also submitted on behalf of the petitioner that his suspension has now been vacated and he has joined his place of posting at Jamal Road, Patna. 4. Let the Director, Medical Services, Employees State Insurance Scheme consider the correctness or otherwise of the contents of the medical prescription dated 08.01.2010 by asking the medical officer who has issued such prescription about the real state of health of the petitioner during the relevant time and pass appropriate orders in accordance with law. It goes without saying that if the condition of the petitioner at the relevant time was such that he could not have gone to Banjari, the authorities will not insist on enforcing the proviso to sub-rule (iii) (1) of Rule 10 but before coming to such finding the actual state of health of the petitioner at the relevant time must be ascertained. 5. Both the applications are accordingly, disposed of. P.K.P. (V.N.Sinha,J.)