Dr. Indreshwar Tiwary … v. 1.The State of Jharkhand 2.The Secretary, Department of Health, Govt. of Jharkhand, Ranchi 3.The
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 494 of 2013 --- Dr. Indreshwar Tiwary … … Petitioner Versus 1.The State of Jharkhand 2.The Secretary, Department of Health, Govt. of Jharkhand, Ranchi 3.The Deputy Secretary, Health & Family Welfare Department, Govt. of Jharkhand, Ranchi 4.The Secretary, Department of Health & Family Welfare, Govt. of Bihar, Patna 5.The State of Bihar through the Secretary, Department of Health, Govt. of Bihar, Patna 6.The Director, Department of Health, Govt. of Bihar, Patna 7.The Accountant General, Jharkhand … … Respondents --- CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR --- For the Petitioner : M/s. Rajiv Ranjan & For the Respondents-State For the Accountant General
Legal Reasoning
The petitioner earlier approached this Court in W.P.(S) No. 6023 of
Arguments
: Mr. Yogendra Prasad, J.C. to S.C. I : Mr. S. Shrivastava, Advocate Shresth Gautam, Advocate --- 04/09.12.2013 The petitioner has approached this Court seeking quashing of order dated 07.12.2011. 2. Heard learned counsel appearing for the parties and perused the documents on record. 3. The petitioner was appointed as Civil Assistant Surgeon on 29.09.1977 and he superannuated from service on 31.01.2009.
Decision
2010 which was disposed of on 31.01.2011 with a direction to the respondent no. 2 to decide the claim of the petitioner within a period of 16 weeks. By order dated 07.12.2011, passed in pursuance of the aforesaid direction, the alleged unauthorised absence between the period 22.06.1992 to 06.09.1992 which was regularised by order dated 25.05.2011 was cancelled and the period between 23.05.1995 to 21.12.1996 was not regularised on -2- the plea that the petitioner remained absent in Headquarters and he did not show any interest in getting himself posted. 4. A counter affidavit has been filed stating that the impugned order is self-explanatory and it has further been stated thus; 7. “That it is most humbly stated and submitted that the petitioner was absent from his duty between 22.06.1992 to 06.09.1992. The earn leave of the said period was sanctioned vide departmental order no. 409 (2) dated 25.05.2011. It came to know from the information of Accountant General, Jharkhand, Ranchi that the petitioner had been paid 300 days earn leave after his retirement. Therefore the previous order no. 409 (2) dated 25.05.2011 was cancelled keeping in view that the period was related with undivided Bihar period and said period was not regularized by the Government of Bihar. The petitioner Dr. Tiwari did not mention cause for his long absence from 22.06.1992 to 06.09.1992 and no effort was made by the petitioner for getting the said period regularized as earned leave. It is clear case of willful and unauthorised absence from duty. Therefore earned leave sanction order no. 409 (2) dated 25.05.2011 has been cancelled. It is also pertinent to mention here that no earn leave can be sanctioned after encashment of three hundred days earn leave after retirement. The period from 24.05.1995 to 21.12.1996 was unregularized. The period is related with undivided Bihar. In this period petitioner was absent from headquarter, therefore this period cannot be regularized as period on duty.” 5. The learned counsel appearing for the petitioner has submitted that the petitioner all along remained present in the Headquarters and on various occasions orders for posting the petitioner at different places were passed, however the petitioner was not permitted to join at those places as no post was available. The period between 22.06.1992 and 06.09.1992 was regularised by order dated 25.05.2011 which has also been cancelled by the impugned order dated 07.12.2011 on the ground that since the petitioner has already availed and was paid for maximum of 300 days of earned leave. The learned counsel appearing for the petitioner has contended that the ground taken by the respondent no. 2 is not justified in view of the fact that the petitioner sought -3- regularisation of the period between 22.06.1992 to 06.09.1992 by adjustment of 77 days through the earned leave of the petitioner, and therefore, such regularisation could not have cancelled by the impugned order dated 07.12.2011 on the plea that the petitioner has been paid for 300 days of earned leave. The learned counsel appearing for the petitioner has submitted that all that was open to the respondents-authority to deduct salary for 77 days of earned leave and not to cancel the regularisation of the said period which was sanctioned by order dated 25.05.2011. The learned counsel appearing for the petitioner has further submitted that the order recalling order dated 25.05.2011 has been passed without issuing any notice to the petitioner. 6. The learned counsel appearing for the respondents has submitted that since the petitioner remained absent during the said period, it has been ordered to be treated as period not on duty and consequently, break in service. Reiterating the stand taken in the counter affidavit, the learned counsel for the respondents-State of Jharkhand has supported the impugned order dated 07.12.2011. 7. On a perusal of the documents on record, I find that on 23.05.1995, the petitioner was relieved from his post and he has been ordered to join his new posting. However, the petitioner was not permitted to join and by order dated 30.05.1995, the petitioner was sent back and therefore, he joined the Headquarters on 01.06.1995. A fresh order was passed on 22.12.1995 posting the petitioner at a different place, however again the petitioner was not permitted to join at the said place as there was no post vacant at that time and the petitioner was sent back by order dated 03.01.1996. The petitioner joined the Headquarters on 05.01.1996 and by order dated 14.12.1996 the petitioner was posted at Koderma where he joined on 22.12.1996. In view of the aforesaid, I find that all along the petitioner was present either at the place where he was posted or in the Headquarters and different orders have been issued in this regard. I further find that once the -4- respondents-authority has taken the decision to regularise the period between 22.06.1992 to 06.09.1992, it was not open to the respondents-authority to take a contrary view insofar as, the regularisation of period between 24.05.1995 to 21.12.1996 is concerned. I am of the view that the order dated 25.05.2011 could not have been recalled by the respondents-authority without issuing any show-cause notice to the petitioner. I find that the order passed by the respondent no. 2 on 07.12.2011 is contrary to procedure established by law. No show-cause notice was ever issued to the petitioner nor any departmental inquiry was initiated against the petitioner and therefore, it was not open to the respondents-authority to treat the period in dispute as unauthorised absence. Further, it was not also open to the respondents-authority to pass an order by which the period between 22.06.1992 and 06.09.1992 has been treated as break in service. Such an order would definitely entail serious consequence as the petitioner may be deprived of the benefit of pension and therefore, the petitioner was entitled for grant of hearing. In view of aforesaid discussion order dated 07.12.2011 is hereby quashed. The writ petition is allowed, however it would be open to the respondents to deduct an amount equivalent to 77 days of earned leave. 8. It is clarified that the period between 22.06.1992 to 06.09.1992 would not be treated as break in service of the petitioner and the petitioner would be entitled for all pensionary benefits. R. Shekhar Cp 2 (Shree Chandrashekhar, J.)