Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4845 of 2013 ====================================================== Baijnath Yadav, Son of Late Vikku Yadav, Resident of Ghorasahan, P.O. and P.S.- Ghorasahan, District- East Champaran (Motihari). Versus .... .... Petitioner/s 1. The State of Bihar 2. The State of Bihar through the Director-Incharge, Health Services (Department of Health) Govt. of Bihar, Patna 3. The Regional Deputy Director, Health Services, Tirhut Pramandal (Department of Health, Govt. of Bihar), Muzaffarpur 4. The District Magistrate, East Champaran, Motihari 5. The Civil Surgeon-Cum-Chief Medical Officer, East Champaran Motihari 6. The Incharge Medical Officer, Primary Health Centre Ghorasahan, P.O. and P.S.- Ghorasahan, District- East Champaran
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sanjay Kumar Mishra, Advocate. For the Respondent/s : Mr. Kamlesh Kumar Sharma, AC to S.C. 22. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 30-10-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows: “……. For quashing the order passed by the District Magistrate, East Champaran, Motihari circulated vide Memo No. 2271 dated 15.10.2012 by which letter no. 657 dated 10.10.2012 i.e. the order passed by the Regional Deputy Director, health Services, Tirhut Pramandal, Muzaffarpur has been cancelled, as well as also for quashing the consequential order for suspension of the petitioner circulated vide Memo No. 146 dated 22.01.2013 passed by the Civil Surgeon-cum- Chief Medical Officer, East Champaran, Motihar.” 2 Patna High Court CWJC No.4845 of 2013 (2) dt.30-10-2013 2 / 5 Learned counsel for the petitioner has submitted that the impugned order dated 15.10.2012 by which the Collector of East Champaran, Motihari has directed for compliance of the earlier transfer order of the petitioner dated 25.09.2012, is bad both on facts and in law inasmuch as the Collector does not have any jurisdiction to interfere in the affairs of the Health Department, specially when such order of transfer of the petitioner dated 25.09.2012 passed by the Civil Surgeon-cum-Chief Medical Officer, East Champaran, Motihari was stayed by the Regional Deputy Director of Health Services, Muzaffarpur by his order dated 10.12.2012. Learned counsel for the State, by filing a counter affidavit, has explained that the petitioner was posted at Primary Health Centre, Ghorasahan for last 23 years and had created administrative problem and that is how the order of transfer was passed on 25.09.2012. He has further submitted that the order passed by the Regional Deputy Director of Health was itself without jurisdiction who in fact has been vested with no such appellate power as against the order of the Civil Surgeon-cum- Chief Medical Officer. He has also submitted that such order of Regional Deputy Director of Health being bad, both on facts and in law, the Collector’s order cannot be interfered with inasmuch as even if it would be set aside on being held to be an illegal order, the same would lead to revival of yet another illegal order passed by the Regional Deputy Director of Health. In the considered opinion of this Court, the petitioner being a Family Welfare Worker, his cadre controlling authority being the Civil Surgeon-cum-Chief Medical Officer, his transfer order passed on 25.09.2012 was absolutely justified. The 3 Patna High Court CWJC No.4845 of 2013 (2) dt.30-10-2013 3 / 5 petitioner, under the said order, was directed to join within a period of three days and for that purpose he was deemed to have been relieved on 27.09.2012. The Regional Deputy Director of Health had, therefore, no jurisdiction to pass an order on 10.12.2012 as with regard to a person who had already committed misconduct by flouting the order of transfer. In any event, when the Regional Deputy Director of Health had not found any sound reason for interference and had only called for a report from the Civil Surgeon-cum-Chief Medical Officer, he in all fairness ought to have not in the meantime stayed the operation of transfer order which had already become operational on expiry of period of three days. In that view of the matter, this Court is not inclined to interfere with the impugned order passed by the Collector even though the Collector also had no jurisdiction vested in him to interfere with the order of the Regional Deputy Director, East Champaran, Motihari. The net result would be that the petitioner did not comply with the order of transfer dated 25.09.2012 and therefore, his having been placed under suspension by another impugned order dated 22.01.2013 by the Civil Surgeon-cum-Chief Medical Officer, the cadre controlling authority, cannot be faulted on facts or in law. The issue, however, would still be as to the continuation of such suspension order. Admittedly, the petitioner, having not complied with the transfer order, was placed under suspension on 22.01.2013 and thus, in terms of Bihar Government Servant (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as ‘the Rules’), the memo of charge had to be drawn within a period of three months i.e. by 22.04.2013. 4 Patna High Court CWJC No.4845 of 2013 (2) dt.30-10-2013 4 / 5 There is nothing on record to show that after the petitioner was placed under suspension, he had filed any representation complaining about issuance of memo of charge. In terms of Rule 9 of the aforementioned Rules, the period of suspension could have been extended to another period of four months for the reasons recorded in writing, but from the counter affidavit it does not transpire that a memo of charge was filed even up to 16.08.2013 when the said counter affidavit was sworn by one Dr. Mahendra Prasad Gupta, Incharge Medical Officer, Ghorasahan, East Champaran. The net result would be that the petitioner continues under the order of suspension dated 22.01.2013 even after expiry of a period of more than 20 months. Such suspension, therefore, cannot be no longer continued specially when there is nothing on record to deny the specific averment made by the petitioner in Interlocutory Application No. 4944 of 2013 that the memo of charge pursuant to the order of suspension has not been framed as yet. Let it be noted that this Interlocutory Application was filed on 24th July 2013 whereas counter affidavit has been sworn on 16th August 2013 and filed on 21st August 2013. In that view of the matter, the impugned order of suspension being in the teeth of Rule 9 of the aforementioned Rules must be and is hereby quashed. As a result of quashing of the order of suspension of the petitioner, he will be deemed to be posted on his transferred place at Primary Health Centre, Fenhara and if the petitioner joins the said post and resumes his duty, he will be paid his salary and emoluments from the date of his joining. The rest of the grievance of the petitioner, as highlighted by the learned counsel for the petitioner that the 5 Patna High Court CWJC No.4845 of 2013 (2) dt.30-10-2013 5 / 5 petitioner was also not paid any subsistence allowance during the period of suspension, will also be examined by the Civil Surgeon- cum-Chief Medical Officer, East Champaran, Motihari in terms of Rule 9 of the Rules itself, which very clearly lays down that if the suspended employee continues under the order of suspension, he will be entitled for payment of such subsistence allowance provided that he remains in the headquarters fixed in the order of suspension. As with regard to misconduct committed by the petitioner in relation to his non-compliance of the transfer order dated 25.09.2012 or any other allegation as has been sought to be projected in the counter affidavit, the Civil Surgeon-cum-Chief Medical Officer must frame memo of charge within a period of three months from the date of receipt of this order and the payment of full salary beyond subsistence allowance for the period of suspension would abide by the result of the aforementioned departmental proceeding. With the aforementioned observation and direction,
Decision
this application is disposed of. Sujit/- (Mihir Kumar Jha, J)