Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21414 of 2012 ====================================================== Dr. (Smt.) Anu Rani, wife of Er. Ashok Varma, Anuashok Ashram, Hospital Chawk, Narkatiaganj, West Champaran, PIN 845455 .... .... Petitioner Versus 1. The State Of Bihar through Secretary Department of Health, Govt. of Bihar, Patna 2. Under Secretary, Health Department, Govt. of Bihar, Patna 3. Deputy Secretary, Health Department, Govt. of Bihar, Patna 4. Additional Secretary, Health Department, Govt. of Bihar, Patna 5. Civil Surgeon, Bhabhua, District Kaimur .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar Sahay, Adv. For the Respondent/s : Mr. H.S.Sundaram, AC to GP24 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 26-11-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “(A) That this is an application for issuance of a writ in the nature of certiorari, for quashing the order dated 17.4.2012 contained in Memo No. 533(9) dated 24.4.2012 (Annexure 9B) passed by the respondent no.4 in departmental proceeding Appeal filed on 7.6.2006. Whereby and where under he upheld the order contained in Departmental Notification no. 645(9) dated 16.5.2006 (Annexure 9A) passed by respondent no.3. Whereby the petitioner was intentionally punished with (a) Without pay from 22.11.2000 to 7.9.2003. (b) Denial of two increments with cumulative effect. (c) Only suspension allowance payable for the suspension period.
Legal Reasoning
Patna High Court CWJC No.21414 of 2012 (2) dt.26-11-2013 2 (B) For issuance of a writ in the nature of mandamus or any other appropriate writ order/s, direction commanding the respondents for the following: (i) to treat the Annexure 9A and 9B to the petition to be nullity and non-est in the eye of law. (ii) To hold that suspension was illegal. (iii) To hold that order of “without pay from 22.11.2000 to 7.9.2003” is illegal. (iv) To hold that after vacation of suspension “only suspension allowances is payable for the suspension period” is illegal. (v) to hold that punishment for posting twice against NON-VACANT post is malafide and wrong intentioned.” Learned counsel for the petitioner while assailing the impugned order of punishment in a departmental proceeding dated 16.5.2006 and its affirmance in the order dated 24.4.2012 has basically concentrated on the aspect that the authorities have miserably failed to examine that there was no vacant post at the transferred place on which the petitioner’s joining could have been accepted and as such, the petitioner’s absence from duty could not be held to be unauthorized. In this regard he has also submitted that the petitioner had received the transfer order only on 15.11.2000 and as such when she had also reported in the office of the Civil Surgeon, Bhabhua on 21.11.2000, the authorities ought Patna High Court CWJC No.21414 of 2012 (2) dt.26-11-2013 3 to have to take into account this aspect as well. Counsel has also submitted that since the petitioner after joining at Bhabhua in the office of the Civil Surgeon became unwell she had proceeded on the medical leave and therefore, she would be entitled to both salary as also continuance in service for the period of her absence i.e. 22.11.2000 to 7.9.2003.
Legal Reasoning
Learned counsel for the State, on the other hand, having filed the counter affidavit has sought to explain that first of all there is no procedural infirmity in course of departmental proceeding and secondly, the plea of the petitioner as being sought to be raised in this writ application was never her defence in course of the departmental proceeding. This Court would find that the transfer of the petitioner dated 25.9.2000 was issued pursuant to a general direction of this Court in C.W.J.C.No. 4036/1999, whereby and whereunder the State Government was directed to shift each and every doctor working at a particular place for a period of ten years or more. Thus, in the list of doctors, who were transferred by the State Government on 25.9.2000, the petitioner, who was also working in Patna District and was posted at Sadar Prakhand, Patna was transferred to Sadar Hospital, Bhabhua. The transfer order very categorically had directed each and every incumbent to submit Patna High Court CWJC No.21414 of 2012 (2) dt.26-11-2013 4 their joining by 15th October, 2000. There is no denial to this aspect that the petitioner did not join at her transferred place at any point of time because it is her own explanation that she had gone to the office of the Civil Surgeon, Bhabhua on 21.11.2000. This Court fails to understand that when she had to join at Sadar Hospital, Bhabhua on or before 15.10.2000 why in the first place she did not submit her joining by that date at her transferred place and chose to go to the office of the Civil Surgeon after expiry of more than one month of schedule time fixed in the Government notification. This in itself was a clear violation of the order of the transfer and therefore, the first plea of the petitioner’s joining in the office of the Civil Surgeon, Bhabhua on 21.11.2000 can be of no avail. As with regard to so called joining of the petitioner in the office of the Civil Surgeon, Bhabhua on 21.11.2000 it has come on record that as there was no provision made in the order of transfer for submitting joining in the office of the Civil Surgeon no decision was taken on that joining report. Had the petitioner, therefore, complied the order of transfer dated 25.9.2000 within the prescribed period i.e. 15.10.2000 and had not been given charge at Sadar Hospital, Bhabhua, she had the remedy of reporting the matter to the Addl. Secretary to the Government, Patna High Court CWJC No.21414 of 2012 (2) dt.26-11-2013 5 inasmuch as in the transfer notification it was very much mentioned that in the event of not being given charge on account of the post being not vacant the person concerned had to report without fail within 15 days from the date of issue of the notification. As noted above, the 15 days had expired on 10th October, 2010 whereas the petitioner for the first time had gone to give her joining on 21.11.2000 and therefore, her plea of there being no vacant post in Sadar Hospital, Bhabhua is factually incorrect and was not found to have been substantiated in any manner in departmental enquiry. The last plea of the petitioner of becoming unwell at Bhabhua and therefore, proceeding on medical leave will leave with her no other consequence but of being absent from duty without there being any proof of sanctioned of leave to her. Learned counsel for the State has correctly pointed out that the petitioner’s alleged joining at Patna at her own in the office of the Civil Surgeon was an act of defiance of the transfer order because at no point of time the petitioner was directed to revert back to Patna. Thus, this Court does not find the explanation of the petitioner to be of any substance. That apart there is no procedural infirmity in the departmental proceeding and this Court is not required to go into Patna High Court CWJC No.21414 of 2012 (2) dt.26-11-2013 6 the merits of the charge because even if there be some evidence for proving of the charges a Writ Court in exercise of power under Article 226 of the Constitution of India cannot substitute its own finding as against those recorded in the departmental proceeding. The punishment inflicted upon the petitioner also is not disproportionate, inasmuch as she has been only denied the payment of salary for the period she had not worked i.e. 22.11.2000 to 7.9.2003 and also censure in her service record. This order of punishment was passed on 16.5.2006 and therefore, now in the year 2013 this Court is not inclined to even interfere in the same only on the basis of a subsequent order dated 24.4.2012 which in no view of the matter can be said to be the appellate order because initially the order dated 16.5.2006 was also passed with the approval of the State Government and has been done in the order dated 24.4.2012. Considering all these aspects this Court does not find any merit in this application and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) surendra/-