Jharkhand High Court

Umblan Kerketta vs The State Of Jharkhand on 17 March, 2021

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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

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

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

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

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