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IN THE HIGH COURT OF JUDICATURE AT PATNA
Chakradhari Sharan Singh, J.
Dr. Vijaya Laxmi Kundra, W/o Dr. R.B. Singh – Petitioner
Versus
The State of Bihar through the Commissioner-cum-Secretary, Department of Health and ors. – Respondents
Civil Writ Jurisdiction Case No.14770 of 2014
Decided On : 11-05-2022
Bihar Pension Rules, 1950 – Rules 43(b) and 101 – Imposition of punishment of stoppage of full pension – Charge of misconduct in nature of unauthorised continuous absence from duty from 1994 to 07.01.1999 – Finding recorded by Disciplinary Authority regarding petitioner's unauthorised absence for said period cannot be said to be suffering from any infirmity – Petitioner's justification for her absence during said period has rightly been rejected by Disciplinary Authority – On the basis of same departmental enquiry and report of Enquiring Authority petitioner was dismissed from service in February, 2005 – Her appeal was also rejected in 2006 – Rule 101 of Bihar Pension Rules stipulates that dismissal from service for misconduct shall entail forfeiture of past service for the purpose of grant of pension – Order of dismissal was interfered with by this Court on technical ground of second show cause notice issued to petitioner being vague and containing no clear opinion of Disciplinary Authority – Said requirement has subsequently been complied with – Finding that petitioner remained absent unauthorisedly without any acceptable justification, cannot be said to be without any basis or on the basis of materials which are irrelevant. (Paras 15, 19 and 20)
Constitution of India – Article 226 – Bihar Pension Rules, 1950 – Rule 43(b) – Imposition of punishment of stoppage of full pension – Unauthorised absence of a doctor posted in a government hospital without any valid justification is a gross misconduct – Gravity of 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 – Absence of a doctor in a government hospital/ dispensary leaves patients requiring medical attention in great jeopardy, which immensely hampers public interest – 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 – Petitioner, despite being a medical professional, chose to remain absent from duty for years together without any duly sanctioned leave, which must have prevented administration from making alternative arrangements because of uncertainty to meet this situation arising out of petitioner's absence – Considering potential of harm which can be caused by sudden absence of a doctor from government hospital without any authority for years together, decision of State Government to forfeit 100% of pension cannot be said to be so unreasonable in facts and circumstances of case, which would require this Court's interference in a proceeding under Article 226 of Constitution of India, which is an equitable discretionary remedy – High Court, in exercise of writ jurisdiction is required to balance competing public interest and an individual interest – Writ Court in its discretion may decline to exercise its jurisdiction once Court is satisfied that there has been no failure of justice – Plea of petitioner based on medical prescriptions of a doctor of same hospital does not inspire much confidence – Writ Petition dismissed. (Paras 22, 23, 24, 26 and 28)
JUDGMENT :
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 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 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 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, Govern
Disciplinary action must consider proportionality of punishment in light of circumstances, including health issues, and proper procedure must be followed to ensure fair treatment.
While courts generally do not interfere with findings of fact in disciplinary inquiries, a penalty of dismissal for unauthorised absence is reviewable if the disciplinary authority fails to exercise ....
Dismissal should only be imposed for willful and intentional absence, and the punishment should be proportionate to the gravity of the misconduct.
Disciplinary action under Rule 43(b) of the Bihar Pension Rules requires proof of grave misconduct or financial loss to the government; failure to provide substantiated reasoning in orders renders th....
Termination without proper procedure and documentation is disproportionate, violating legal norms on employee's rights.
The court upheld the disciplinary authority's decision to impose a 100% pension cut for unauthorized absence, emphasizing the importance of discipline in public service.
The punishment imposed must be in accordance with the prescribed list of punishments under the relevant rules and should not deviate from the statutory provisions.
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