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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.5246 of 2008
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Umblan Kerketta ... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Secretary, Department of Health and Family Welfare, Jharkhand, Ranchi.
3. The Director in Chief, Department of Health Service, Jharkhand, Ranchi.
4. The Civil Surgeon-cum-Chief Medical Officer, Dumka.
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. S. P. Sinha, Adv. For the Res. State :Mr. Rahul Saboo, S.C.I
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Through:- Video Conferencing
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20/17.03.2021 Heard learned counsel for the parties through V.C.
2. The instant writ application has been preferred by the petitioner praying therein for quashing the order dated 30.06.2008 passed by respondent No.4 whereby petitioner's prayer to allow him to resume his duty forthwith has been rejected without taking into consideration that no departmental proceeding was initiated in terms of provision of Rules under the Civil Services (Classification, Control and Appeal) Rules and the Bihar and Orissa Subordinate Services (Discipline and 2 Appeal) Rules, although the petitioner's service has been regularized vide judgment dated 08.04.1997 passed in C.W.J.C. No.12147 of 1993.
3. Mr. S.P.Sinha, learned counsel for the petitioner draws attention of this Court towards Annexure-3 and submits that the petitioner had earlier moved before Patna High Court against the order of dismissal in C.W.J.C. No.12147 of 1993. He further submits that the said case was allowed and the impugned order was quashed and set aside. Paragraph No.7 of the aforesaid order is quoted herein below:-
"7. The impugned orders are therefore quashed. It will however, be open to the State Government, if they are so advised, to initiate an appropriate proceeding in accordance with law. As the impugned orders of termination have been quashed by this Court, the respondents are directed to forthwith reinstate the petitioners in service. It is, however, made clear that after reinstatement, the petitioners are entitled to the continuity of service but they will not be paid any thing by way of arrears of salary for the period they did not work."
4. Learned counsel further submits that since the petitioner remain absent for more than 5 years as he was mentally sick and was admitted in the Mental Hospital and was not able to resume his duty; as such, the respondents did not allow this petitioner to resume his duty after a gap of almost 9 years. Thereafter, petitioner preferred another writ application before this Court being W.P.(S) No.2106 of 3 2007 which was disposed of by giving liberty to the petitioner to file a fresh representation to the Civil Surgeon- cum-Chief Medical Officer, Dumka stating his grievance in details along with supporting documents and the concerned respondents was directed to dispose of the representation.
5. The grievance of the petitioner is that when he filed the representation in pursuance to the order dated 22.11.2007 passed in W.P.(S) No.2106 of 2007, a reasoned order has been passed whereby the claim of the petitioner has been rejected on the ground that since the petitioner was absent for more than 5 years; as such as per Rule 76(b) of Jharkhand Service Code, such employee cannot remain in service.
Mr. Sinha assailed this reasoned order on the ground that as per Rule 76 (b) of Jharkhand Service Code, the respondents were duty bound to follow the principles of natural justice which has not been followed in the instant case.
6. A counter affidavit has been filed in this case wherein the State has stated that if an employee remains absent for a period of 5 years such employee cannot remain in service as per Rule 76 of Bihar Service Code.
7. Mr. Rahul Saboo, learned counsel for the respondent-State opposed the prayer of the petitioner on the ground that Rule 76 of the Bihar Service Code is very clear, inasmuch as, if any employee remains absent for 4 continuous period of 5 years, he shall, unless the State Government otherwise determine, be removed from service and the impugned order has been passed on the basis Rule 76(b) of the aforesaid rule.
However, in the counter affidavit no document has been annexed so as to show that any show-cause notice has been given in compliance to Rule 76(b) of the Service Code.
8. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits, it appears that though the original impugned order was quashed by Patna High Court in C.W.J.C No.12147 of 1993 and the respondents were directed to reinstate the petitioner in service could not happen because the petitioner remain absent for more than 9 years as he was mentally sick which appears from different medical certificates/prescriptions.
9. The short question involved in the instant writ application is that "whether the reasoned order is sustainable in the eye of law in the background of Rule 76(b) of Jharkhand Service Code".
To decide the aforesaid question Rule 76(b) of Service Code is quoted herein below:-
76. ..................
(a) ..................
(b) Where a Government servant does not
resume duty after remaining on leave for a continuous period of 5 years, or where a Government servant after the expiry of his leave remains absent from duty, otherwise 5 that on foreign service or on account of suspension, for any period which together with the period of the leave granted to him, exceeds a continuous period of 5 years, he shall, unless the State Government otherwise determine, be removed from service after following the procedure laid down in the Civil Services (Classification, Control & Appeal) Rules and Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules, 1935."
10. After going through the aforesaid Rule it appears that the State Government is empowered to remove the service of any employee if he exceeds absence for a continuous period of 5 years. However, there are two conditions. First; the State Government has been given a discretion to use this power of termination as the language says "............unless the State Government otherwise determine.......". The Second condition is that before termination, the department will have to follow the procedure as laid down in Civil Services (Classification, Control & Appeal) Rules and Bihar & Orissa Subordinate Service (Discipline & Appeal) Rules, 1935. This is nothing but the principles of natural justice which is missing in the instant case. At the cost of repetition; no document has been annexed by the Respondent State so as to show that any show-cause notice has been given in compliance to Rule 76(b) of the Service Code
11. In this view of the matter; the instant writ application is allowed. Consequently, the impugned order as contained in Memo No.1627 dated 30.06.2008, is hereby, quashed and set aside. The matter is remitted back 6 to the Respondent No.4 with a direction to issue show- cause notice to the petitioner and pass an order on the reply given by this petitioner strictly in the line of Rule 76(b) of the Jharkhand Service Code.
12. It goes without saying that since the impugned order has been quashed the respondent authority will allow this petitioner to join service and proceed with the matter by giving show cause notice.
13. With the aforesaid terms the instant writ application stands allowed.
(Deepak Roshan, J.) Fahim/-
AFR