Dr. Vijaya Laxmi Kundra vs The State Of Bihar And Ors
2022 Latest Caselaw 2779 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.14770 of 2014
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Dr. Vijaya Laxmi Kundra, W/o Dr. R.B. Singh, Resident of House No. 60, LIC Colony Kankarbagh, P.S. - Kankarbagh, District - Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna

2. The Commissioner-cum-Secretary, Department of Health, Government of Bihar, Patna.

3. The Director Health Services, Department of Health, Government of Bihar, Patna.

4. The Additional Secretary, Department of Health, Government of Bihar, Patna.

5. The Under Secretary to the Government, Department of Health, Government of Bihar, Patna.

6. The Deputy Director, Health Services, Tirhut Division, Muzaffarpur.

7. The Civil Surgeon, Bettiah.

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

For the Petitioner/s : Mr. Chitranjan Sinha, Sr. Advocate Mr. Siddhartha Prasad, Advocate Ms. Surya Nilambari, Advocate For the Respondent/s : Mr. Rajeshwar Singh, GA-10 Mr. Niraj Kumar, AC to GA-10 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH CAV JUDGMENT Date : 11-05-2022

The petitioner has put to challenge, in the present writ

application filed under Article 226 of the Constitution of India, a

notification issued vide Memo No. 322 dated 05.05.2014, by the

Department of Health, Government of Bihar, whereby

punishment of stoppage of full pension has been imposed upon

the petitioner, in exercise of powers under Rule 43(b) of Bihar Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

Pension Rules, 1950.

2. Heard Mr. Chitranjan Sinha, learned Senior Counsel

assisted by Mr. Siddhartha Prasad and Ms. Surya Nilambari,

learned Advocates and Mr. Rajeshwar Singh, learned GA-10 with

Mr. Niraj Kumar, learned AC to GA-10.

3. The short facts leading to issuance of the impugned

order are that the petitioner, at the relevant point of time, was

posted as a Lady Medical Officer in MJK Hospital, Bettiah. On

the charge of misconduct in the nature of her unauthorised

continuous absence from duty since 1994, a departmental

proceeding was initiated against her on 04.02.2003. The

Enquiring Authority found the charge of misconduct against the

petitioner of her unauthorised absence from 1994 to 07.01.1999

proved. A second show cause notice was issued to the petitioner

with the enquiry report giving her opportunity to comment upon

the said finding in the enquiry report. The petitioner had

submitted her reply on 12.06.2004. Subsequently, the

Disciplinary Authority, agreeing with the findings recorded by the

Enquiring Authority and upon obtaining concurrence of Bihar

Public Service Commission decided to impose punishment of

dismissal from service and accordingly vide the Health

Department's resolution No. 675(9) dated 01.12.2005, the Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

petitioner was dismissed from service.

4. The petitioner challenged the order of dismissal

before this Court by filing a writ petition giving rise to CWJC No.

6787 of 2008. On the technical ground that the second show

cause notice issued to the petitioner was vague, inasmuch as, it

did not clearly disclose the opinion of the Disciplinary Authority

as regards finding in respect of charge against the petitioner, this

Court held that a vague show cause notice could not be the basis

for imposing punishment of dismissal from service. This Court

held that there had been violation of principles of natural justice

by not communicating to the petitioner a clear finding in respect

of the charge framed against her. The memo of charge has been

brought on record by way of Annexure-8, which is dated

04.02.2003.

5. It is alleged in the charge memo that the petitioner

was absent continuously since 1994, unauthorisedly. The

petitioner submitted her written statement of defence. From the

report of the Enquiring Authority (Annexure-7 to the writ

petition) it appears that the petitioner took a plea that she had

proceeded on casual leave for five days after making an

application on 16.08.1994 because of her indisposition and

thereafter she kept on applying for extension of leave by Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

subsequent communications sent through UPC. She submitted

prescriptions in support of her ailment written by Dr. M. Shukla,

a Civil Assistant Surgeon posted in the same MJK Hospital,

Bettiah, whereby she was advised bed-rest. She also took a plea

that on 08.01.1999 she had submitted her joining, whereafter the

Superintendent of the Hospital had written to the Commissioner-

cum-Secretary, Health Department, Government of Bihar for

adjusting the petitioner's posting against the post of Lady Medical

Officer in PP Programme, in the same hospital.

6. The Presenting Officer did inform the Enquiring

Authority that there was no report to substantiate the petitioner's

claim to the effect that any communication was made for

adjusting the petitioner's posting at MJK Hospital. There is a

finding in the enquiry report to the effect that pursuant to a press

communique dated 01.02.2002 the petitioner had submitted her

joining on 01.02.2002 and again on 16.08.2002 before the

Superintendent, MJK Hospital, Bettiah. Subsequently by a

notification dated 04.02.2003 issued by the Health Department,

Government of Bihar she was placed under suspension. The

Enquiring Authority recorded in his report that the petitioner

proceeded for leave on 16.08.1994 and pursuant to a press

communique she submitted her joining on 08.01.1999 at the place Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

of her previous posting i.e. MJK Hospital, Bettiah. He, however,

opined that if there was no direction received from the

Department for adjusting the petitioner at MJK Hospital, Bettiah,

she should have been relieved for joining in the department.

7. As has been noted hereinabove, the petitioner was put

to second show cause notice which she replied through her letter

dated 12.06.2004. Thereafter the order dated 01.12.2005 came to

be passed by the department dismissing the petitioner from

service. The petitioner had preferred an appeal against the order

of dismissal, which came to be rejected by the competent

authority by an order dated 12.11.2007. In the meanwhile, the

petitioner attained the age of superannuation on 13.09.2007. The

aforesaid two orders were set aside by this Court's order dated

22.07.2011, passed in CWJC No. 6787 of 2008. This Court while

allowing the petitioner's writ application made the following

significant observations :-

"The facts do show that the petitioner has hardly any convincing explanation for her absence from duties for more than five years without any validly sanctioned leave." (emphasis)

8. The writ petition was allowed with the following

observations and directions :-

"In the circumstances, in view of this vague second show cause notice Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

and enquiry report without any findings, petitioner was not required to explain her conduct further. As such, this vague enquiry report and vague second show cause notice could not be the basis for issue of punishment order against the petitioner terminating her services. Clearly, there has been infraction of Principles of Natural Justice in the case by not communicating the petitioner a clear finding in respect of the charge framed against her giving her opportunity to meet the finding.

In the circumstances, punishment order as contained in Annexure-14 and the appellate order as contained in Annexure-17 are quashed. The matter is remitted back to the Disciplinary Authority with liberty to him to issue fresh second show cause notice to the petitioner or to take any other step as he may consider appropriate, in the proceeding in accordance with law.

It is made clear that on account of quashing of the impugned order of termination and the appellate authority, petitioner shall be treated as under suspension from the date of termination order itself."

9. In compliance of this Court's order dated 22.07.2011,

the Health Department, Government of Bihar issued fresh second

show cause notice dated 04.05.2012, which has been brought on

record by way of Annexure-20 to the writ application. The said

second show cause notice dated 04.05.2012 clearly indicates the

opinion formed by the Disciplinary Authority in relation to the

charge framed regarding her unauthorised absence from August Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

1994. The Disciplinary Authority clearly recorded its opinion to

the effect that the petitioner unauthorisedly remained absent from

16.08.1994 to 07.01.1999 and 09.01.1999 to 16.08.2002.

10. In reply to the said second show cause notice the

petitioner submitted her reply reiterating that she had left the

hospital on casual leave for five days on 16.08.1994 but because

of her indisposition she had to remain absent for a long period.

She asserted that on 08.01.1999 she had submitted her joining

and thus she was on leave from 16.08.1994 to 07.01.1999. She

asserted in her reply that despite communication made by the

Superintendent of Hospital to the Health Commissioner for

adjusting the petitioner's service at MJK Hospital Bettiah, no

guideline was received either from the Health Department or

from the level of the Superintendent, by her. She blamed the

Health Department for not acting promptly after submission of

her joining in 1999, in her reply to the second show cause notice.

11. After noticing her name in the press communique

dated 01.02.2002, she submitted her joining and on the basis of

oral direction of the Health Department she again submitted her

joining at MJK Hospital Bettiah. This time also she was not

allowed to register her attendance. Subsequently, she was placed

under suspension. She accordingly pleaded that her absence from Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

duty was justified in view of the situation as explained in her

reply.

12. After considering the petitioner's reply to the second

show cause notice, the department asked her to submit evidence

in support of her stand that she had submitted her joining on

08.01.1999 and the steps taken by her to communicate with

superior authorities for assignment of duties. Dealing with her

plea in her reply to the second show cause that she had stopped

going to the hospital after sometime, she was asked by the

Disciplinary Authority to disclose since when she had stopped

visiting the hospital. The petitioner again submitted her reply on

24.09.2012.

13. It is the petitioner's case that as no action was being

taken by the authorities to conclude the departmental proceeding,

she approached this Court by filing a writ petition giving rise to

CWJC No. 6784 of 2013. The said writ petition came to be

disposed of by an order dated 03.05.2013 with a direction to the

Disciplinary Authority to conclude the disciplinary proceeding, if

not already concluded, within a period of two months. The

impugned order has finally been passed on 28.04.2014 imposing

punishment of withholding of 100% of pension.

14. Mr. Chitranjan Sinha, learned Senior Counsel Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

appearing on behalf of the petitioner has contended that the

impugned action of imposition of harshest of the punishments of

forfeiting full pension is disproportionate to the misconduct said

to have been proved. He has relied on a Single Bench decision of

this Court in case of Nandjee Mehta vs. The State of Bihar &

Ors. reported in 2017(1) PLJR 753 and a Division Bench

decision of this Court rendered on 30.03.2016 in LPA No. 131 of

2013 (The State of Bihar & Ors. vs. Narmdeshwar Sharma and

Anr.). He has submitted, relying on the aforesaid decisions, that

pension earned by the petitioner during all these long years of

service could not be obliterated so lightly, in the evening of the

petitioner's life. He contends that the punishment of withholding

of 100% of pension is shockingly disproportionate to a former

employee, even on the ground of proved misconduct.

15. I have carefully perused the pleadings and materials

on record. It is to be noted that the petitioner has brought on

record medical prescriptions by way of supplementary affidavit

filed in this case in support of her stand that she was absent from

service on account of genuine reasons. From the said

supplementary affidavit, it is evident that the petitioner's defence

for her unauthorised absence is her indisposition, for which,

according to her, she was undergoing treatment in a private clinic Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

of a doctor who was posted in the same MJK Hospital, Bettiah.

The petitioner herself admits that she remained absent from

16.08.1994 till 07.01.1999 because of her ailment. It is her case

that she was suffering from Pulmonary Tuberculosis, Poly

arthritis and Bronchial Asthma. It is her own case that nearly four

and half years after she had left the hospital, she had submitted

her joining in MJK Hospital, Bettiah on 08.01.1999. She has

relied on a copy of the communication dated 09.01.1999 made by

the Superintendent of Hospital addressed to the Commissioner-

cum-Health Secretary, Government of Bihar requesting

adjustment of the petitioner's posting against the then vacant post

of Lady Medical Officer in PP Programme. Nowhere the

petitioner has asserted that the post, against which she was

working before going on leave, was vacant when she had

submitted her joining. Her unauthorised absence, from 5 days

(period of casual leave) after 16.08.1994, till she is said to have

submitted her joining on 08.01.1999 is an admitted fact. The

finding recorded by the Disciplinary Authority regarding

petitioner's unauthorised absence for the said period cannot be

said to be suffering from any infirmity. The petitioner's

justification for her absence during the said period has rightly

been rejected by the Disciplinary Authority. The petitioner's plea Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

that one fine morning on 08.01.1999 she submitted her joining

and thereafter again disappeared in the absence of any direction

issued by the Superintendent of the Hospital or the Health

Department, in Court's opinion, is thoroughly obnoxious. Instead

of introspecting her own conduct, the petitioner has blamed in the

writ petition the Superintendent of the Hospital and the

department for not issuing any direction after submission of her

joining on 08.01.1999.

16. On the basis of what has been asserted in the

pleadings of the petitioner, it can be easily inferred that the

petitioner, while posted as a lady doctor in MJK Hospital, Bettiah

left on 16.08.1994 for five days on casual leave. If her case is to

be accepted, she joined on 08.01.1999 and thereafter again she

remained absent. I do not intend to go into the question as to

whether the petitioner had submitted her joining on 08.01.1999 or

not.

17. Mr. Chitranjan Sinha, learned Senior Counsel in his

submission has taken a line of least assistance and has addressed

this Court mainly on the point of disproportionality of

punishment imposed while placing reliance on the decisions of

this Court in case of Nandjee Mehta (supra) and Narmdeshwar

Sharma (supra).

Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

18. In the peculiar facts and circumstances of the present

case, the submission so advanced by Mr. Chitranjan Sinha,

learned Senior Counsel has failed to persuade me.

19. As has been noted above, on the basis of the same

departmental enquiry and the report of the Enquiring Authority

the petitioner was dismissed from service in February, 2005. Her

appeal was also rejected in 2006. Rule 101 of the Bihar Pension

Rules stipulates that dismissal from service for misconduct shall

entail forfeiture of past service for the purpose of grant of

pension. The order of dismissal was interfered with by this Court

on technical ground of second show cause notice issued to the

petitioner being vague and containing no clear opinion of the

Disciplinary Authority. The said requirement has subsequently

been complied with in the light of the observations made by this

Court in the order passed in CWJC No. 6787 of 2008.

20. It is a case where the punishment has been imposed

by the Disciplinary Authority on a medical professional posted in

a government hospital on the ground of her unauthorised absence.

The finding that the petitioner remained absent unauthorisedly

without any acceptable justification, in the Court's opinion,

cannot be said to be without any basis or on the basis of materials

which are irrelevant. The said finding is rather based on cogent Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

materials and admitted facts.

21. It is noteworthy that after having perused the enquiry

report, the second show cause notice, the petitioner's reply to the

second show cause and the order of dismissal, this Court in its

order dated 22.07.2011 in CWJC No. 6787 of 2008 had clearly

recorded that the petitioner had hardly any convincing

explanation for her absence from duties for more than five years

without any validly sanctioned leave. I do not find any reason to

take a different view than what was taken by this Court in the said

order dated 22.07.2011.

22. In the Court's opinion, unauthorised absence of a

doctor posted in a government hospital without any valid

justification is a gross misconduct. The gravity of the

consequence of unauthorised absence of a doctor from a

government hospital cannot be underestimated while taking a call

on the point of punishment for such misconduct. In my opinion,

absence of a doctor in a government hospital/ dispensary leaves

the patients requiring medical attention in great jeopardy, which

immensely hampers public interest. The plight of unattended,

inadequately attended patients in need in a government hospital

because of continuous, uncertain absence of a doctor cannot be

lost sight of.

Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

23. The petitioner, despite being a medical professional,

chose to remain absent from duty for years together without any

duly sanctioned leave, which must have prevented the

administration from making alternative arrangements because of

the uncertainty to meet this situation arising out of petitioner's

absence. The petitioner miserably failed to demonstrate that after

five days of causal leave which she had taken, she made any

sincere effort to inform the administration about her likely

absence from duties. Considering the potential of harm which can

be caused by sudden absence of a doctor from government

hospital without any authority for years together, in my opinion,

the decision of the State Government to forfeit 100% of pension

cannot be said to be so unreasonable in the facts and

circumstances of the case, which would require this Court's

interference in a proceeding under Article 226 of the Constitution

of India, which is an equitable discretionary remedy.

24. This Court, in exercise of writ jurisdiction is required

to balance the competing public interest and an individual

interest. A writ Court in its discretion may decline to exercise its

jurisdiction once the Court is satisfied that there has been no

failure of justice.

25. This Court is mindful of the position that nature of Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

misconduct of an employee under the State from the perspective

of gravity varies, depending much on consequence of an act or

omission constituting such misconduct. A conduct of absence

from duty of an employee in civil establishment may not be as

grave as that of an army personnel leaving his post

unauthorisedly. Similarly, in case of a bank employee the

Supreme Court has held in case of State Bank of India vs. Bela

Bagchi reported in (2005) 7 SCC 435 that a Bank Officer to

exercise higher standards of honesty and integrity as he deals

with the money of the depositors and the customers. Every

officer/ employee of a bank is required to take all possible steps

to protect the interests of the Bank and to discharge his duties

with utmost integrity, honesty, devotion and diligence and to do

nothing which is unbecoming of a bank officer.

26. The position of a Doctor posted in a government

hospital carries no less responsibilities, rather more than an

officer of a bank. The proved charge of petitioner's unauthorised

absence for more than four and half years cannot be treated to be

casual in nature. Further, plea of the petitioner based on medical

prescriptions of a doctor of the same hospital does not inspire

much confidence. In any view of the matter, I am not inclined to

interfere with the impugned order in present proceeding under Patna High Court CWJC No.14770 of 2014 dt. 11-05-2022

writ jurisdiction after having noticed the admitted facts regarding

the petitioner's absence from duty without any sanctioned leave.

27. In the court's opinion, in the facts and circumstances

of the present case, the decisions rendered by this Court in case of

Nandjee Mehta (supra) and Narmdeshwar Sharma (supra) do

not apply.

28. In view of the aforesaid discussions, in my opinion,

this writ petition is devoid of any merit, which is accordingly

dismissed.

29. No order as to costs.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR                NAFR
CAV DATE                27.04.2022
Uploading Date          11.05.2022
Transmission Date       NA