Dr. Nirmal Kumar Singh vs The State Of Bihar
2021 Latest Caselaw 5033 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.79 of 2021
     ======================================================

Dr. Nirmal Kumar Singh S/o Rameshwar Prasad posted as Medical Officer, Community Health Centre, Sonbarsa, P.O. and P.S.- Sonbarsa, District- Sitamarhi.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Old Secretariat, Patna.

2. The Principal Secretary, Health Department, Government of Bihar, New Secretariat, Vikash Bhawan, Patna.

3. The Joint Secretary, Health Department, Government of Bihar, New Secretariat, Vikash Bhawan, Patna.

4. The Under Secretary, Health Department, Government of Bihar, New Secretariat, Vikash Bhawan, Patna.

5. Civil Surgeon-cum-Chief Medical Officer, Aurangabad.

6. Civil Surgeon-cum-Chief Medical Officer, Sitamarhi.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :      Mr.Surendra Mishra
     For the Respondent/s   :      Mr.Lalit Kishore, AG
                            :      Mr. Birju Prasad, GP

====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI ORAL JUDGMENT Date : 27-10-2021

In the instant petition, State counsel accepts notice for the

respondents.

Heard learned counsels for the parties.

The petitioner has prayed for the following reliefs:

(i) For quashing and setting aside the

notification of the Health Department, Government

of Bihar issued vide memo no. 538 (9), dated

12.05.2016 under the signature of Sri Nagendra

Prasad, Under Secretary to the Government Patna High Court CWJC No.79 of 2021 dt.27-10-2021

whereby and whereunder the following order of

punishment has been passed against the petitioner

(i) punishment for sensure has been awarded against

the petitioner, (ii) stoppage of 3 annual increments

with non cumulative effect, (iii) no pay for the

period 01.09.2005 to 08.06.2007 will be made to the

petitioner and (iv) for the period of suspension

14.06.2009 to 21.06.2010 nothing would be paid

except subsistence allowance.

(ii) For direction upon the respondents

authorities to grant and pay all the dues salary of

the petitioner for the period 01.09.2005 to

08.06.2007 after sanctioning the same as commuted

leave and further for direction to pay full salary of

the petitioner of suspension period.

(iii) For direction upon the respondents

to release all the three annual increments and its

consequential benefits to the petitioner.

(iv) For direction upon the respondents

to grant any such other relief or reliefs for which the

petitioner is found legally entitled in the facts and

circumstances of the case.

The petitioner was subjected to a disciplinary proceedings

and it was concluded in imposition of penalty by the disciplinary Patna High Court CWJC No.79 of 2021 dt.27-10-2021

authority. The petitioner without exhausting statutory remedy of

appeal before the appellate authority has rushed to this court in

seeking quashing of the disciplinary authority's order. Thus, prima

facie the present petition is premature. The Apex Court in the case of

State of Jammu and Kashmir vs R.K. Zalpuri and Others AIR 2016

Supreme Court 3006 in paragraph 20 held as under:

Having stated thus, it is useful to refer to a

passage from City and Industrial Development Corporation v.

Dosu Aardeshir Bhiwandiwala and Others, wherein this Court

while dwelling upon jurisdiction under Article 226 of the

Constitution, has expressed thus:-

"The Court while exercising its jurisdiction under

Article 226 is duty-bound to consider whether:

(a) adjudication of writ petition involves any

complex and disputed questions of facts and whether they can

be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the petitioner has any alternative or effective

remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of

unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or

barred by any valid law; and host of other factors."

Underline emphasized Patna High Court CWJC No.79 of 2021 dt.27-10-2021

One of the principle laid down in the aforesaid decision of

the Apex Court is that writ court cannot entertain writ petition in the

absence of exhausting statutory remedy of appeal. Similar view was

expressed in the latest decision of Assistant Commissioner (CT)

LTU, Kakinada and ors. Vs. M/S Glaxo Smith Kline Consumer

Health Care Ltd., in Civil Appeal No.2413/2020 (Arising out of SLP

(C) No.12892/2019) reported in 2020 SCC Online SC 440,

elaborately discussed and held that party must avail statutory remedy

and writ petition.

In view of these facts and circumstances, the petition

stands disposed as premature reserving liberty to the petitioner to

approach the appellate authority. In the event of filing of

memorandum of appeal before the appellate authority, the same shall

be considered within a period of six months from the date of receipt

of the petitioner's memorandum of appeal in accordance with law.

With the above observations, writ petition stands disposed

of.

(P. B. Bajanthri, J)

GAURAV S./-

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