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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAVI RANJAN, SUJIT NARAYAN PRASAD, JJ.
Dr. Pratik Kumar, Son of Late Sachindra Kumar Sinha – Appellant
Versus
State of Jharkhand – Respondent
L.P.A. No. 381 of 2020
Decided on : 05-07-2021
Constitution of India,1950 - Article 226,227 and 32 - Jharkhand Service Code - Rule 74 (b) and 1 - Appointed as Civil Assistant Surgeon - Application for Voluntary retirement - Dismissal from services - According to writ petitioner since he had filed application on and as such after expiry of period of three months, he will be deemed to have been separated from service by way of voluntary retirement and, therefore, initiation of departmental proceeding by virtue of resolution and consequential order of dismissal from services vide order not sustainable in eye of law - Whether any existing rule or precedence of scrutiny of supplementary affidavit filed subsequently is there or not or whether same could be placed before Bench without examining as to whether there is some defect in affidavit or not – Held Court find that writ petitioner admittedly absented himself unauthorizedly from service since department authority initiated a departmental proceeding by framing charge containing therein several charges, as referred hereinabove - In pursuance thereto writ petitioner defended charges by putting forth his defense before enquiry officer - It is further evident that writ petitioner was provided with all reasonable opportunity to defend himself but enquiry officer found charges proved, which was finally accepted by disciplinary authority, who passed order of dismissal vide order -Court are not considering that ground to look into legality and propriety of order of dismissal - So far as reason shown by learned counsel for writ petitioner for not resuming duty, according to us has been well discussed by authority and Court cannot delve upon by substituting our view which has already been expressed by administrative authority, as per settled position of law, as referred herein above since writ petitioner has failed to make out a case of interference under power of judicial review under Article 226 of Constitution of India as per guidelines stipulated by Hon’ble Apex Court in judgments referred hereinabove more particularly taking into consideration nature of allegation which pertains to unauthorized absence by writ petitioner for a period of more than 10 years and without sanction of leave which as per relevant Conduct Rule is a gross Misconduct- Appeal dismissed.
JUDGMENT :
With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
2. In compliance of order of dated 23.06.2021, explanation has been submitted by Dealing Assistant and Section Officer as also by the Assistant Registrar of the concerned Section.
3. Perused the explanation.
4. Let the Registrar General examine the matter as to whether any existing rule or precedence of scrutiny of supplementary affidavit filed subsequently is there or not or whether the same could be placed before the Bench without examining as to whether there is some defect in the affidavit or not?
Thereafter, place the matter before the Chief Justice on the administrative side for taking appropriate decision in this regard.
L.P.A. No. 381 of 2020
5. The instant intra-court appeal is preferred against the order/judgment dated 03.11.2020 passed by learned Single Judge in W.P. (S) No. 395 of 2020, whereby and whereunder the learned Single Judge refused to interfere with order dated 23.06.2017, by which the application of the writ petitioner seeking Voluntary Retirement has been rejected; as also order dated 03.08.2017 whereby departmental proceeding was initiated against the petitioner and order dated 09.10.2019 whereby the writ petitioner was dismissed from services.
6. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are as under:
The writ petitioner was appointed as Civil Assistant Surgeon (Medical Officer) on 22.04.1990 on the recommendation being made by Bihar Public Service Commission and pursuant thereto he joined as Medical Officer at Additional Primary Health Centre, Karaikela (Bandgaon), Chaibasa, West Singhbhum. During his service tenure, the writ petitioner was posted at different places and finally he was posted as Medical Officer (Anaesthetist), Sadar Hospital, Ranchi, where he joined on 12.10.2004 and worked till 02.06.2006. Thereafter, the petitioner proceeded on extraordinary leave by submitting application dated 02.06.2006 mainly on the ground of total disablement of his father, which was duly received and acknowledged by the office of Deputy Secretary of the Department. In continuation of his application, the petitioner again submitted application dated 29.08.2007 for extension of extraordinary leave. In response thereto, the writ petitioner received instruction from Civil Surgeon, Ranchi vide letter dated 16.10.2007 to join at Head Quarter (Department of Health, Medical Education and Family Welfare) and submit application for extension to the Department itself with further direction not to make any correspondence to the Civil Surgeon, Ranchi in this regard in future. The writ petitioner again submitted application dated 02.06.2008 to the Joint Secretary for extension of leave as also application dated 29.05.2008 to the Civil Surgeon, Ranchi for extension of leave. It is contended that the writ petitioner did not receive any response to the aforesaid leave applications and as such he finally made an application on 16.10.2015 under Rule 74 (b) of the Jharkhand Service Code (hereinafter referred to as “Code”) for voluntary retirement.
The writ petitioner having not received any response to his application for voluntary retirement moved before this Court by filing writ petition, being W.P. (S) No. 676 of 2019 but during pendency of that writ petition the writ petitioner was dismissed from services vide order dated 09.10.2019 and in that view of the matter, the writ petition was withdrawn by taking liberty to challenge the dismissal order.
Pursuant thereto, the writ petitioner has again approached this Court by filing W.P. (S) No. 395 of 2020. According to writ petitioner, he was on leave and finally on 16.10.2015 filed an application for voluntary retirement in terms of Rule 74(b) of the Code, which provides that within a period of three months from the date of submitting such application t
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