Dr. Joycee Jones @ Joycee Jones vs The State of Bihar and Others

S.N. Jha, J.—The petitioner seeks quashing of the order of the Health Commissioner & Secretary, Department of Health, contained in his memo no. 125 (HC) dated 3.9.97, by which the plea of the petitioner to regularise the period of absence between 6.5.93 and 30.11.95 against leave due has been rejected, and treating the said period as unauthorised absence it has been held that the period shall be treated as break in service. The petitioner had come to this court earlier in C.W.J.C. No. 321 of 1996 seeking direction for payment of her retrial dues. The aforesaid order has been passed while considering her entitlement to retrial dues in the light of the direction of this Court. The relevant facts are as follows. The petitioner, an ex-member of the Bihar Health Service, was initially appointed on 9.3.62 and thereafter posted at different places, and was finally transferred to Patna City Hospital as Deputy Superintendent vide memo no. 1557 (3) dated 30.12.92. At that time she was posted as Sub-divisional Medical Officer at Bhagalpur. The petitioner made representation against the said transfer which was rejected on 15.4.93. On 5.5.93 she submitted her joining before the Superintendent, Patna City Hospital, and took one day''s casual leave for 6.5.93. She went to Bhagalpur from where on 7.5.93 she sent an application for extension of leave on account, of her mother''s illness from 10.5.93. to 9.6.93. On 6.6.93 she sent another. application for extension of leave on account of her own illness from 10.6.93 to 8.9.93. She sent yet another application on 4.9.93 for special medical leave from 9.9.93 to 6.9.94. On 6.3.95 she submitted her joining in the Health Department before the Under Secretary. On the same day she also submitted an application seeking extraordinary leave from 7.9.94 to 5.3.95 under Rule 234 of the Bihar Service Code. She made another application for her posting at Bhagalpur on the ground that she was to superannuate on 30.11.95. On 30.11.95 finally the petitioner retired from service on reaching the age of superannuation.

The validity of the order has been challenged on the ground of violation of rules of natural justice. Counsel for the petitioner was at pains to satisfy this Court about the bona fide of the petitioner''s conduct. So far as the conduct is concerned, it hardly can be said to be inspiring. It is obvious that the petitioner did not want to be transferred from Bhagalpur, she initially made representation which was rejected. Her submitting the joining and on the same day taking casual leave for a day and seeking extension of the leave from time to time leaves no room for doubt that the petitioner was not interested in performing her duties at Patna City Hospital. Wilful absence from duty is a serious matter specially for the doctors who enjoy special place in the society and are different from ordinary Government servants. The tact that the petitioner remained absent from the hospital for over two years with least concern for the patients whom she was supposed to serve is indeed a serious matter, the gravity of which cannot be ignored. However, the fact remains that no disciplinary action was taken against the petitioner at the relevant time, and after her retirement no such action can be taken. The point which arises for consideration is whether merely on the ground that the petitioner remained un-authorised absent from duty, the period of absence cannot be regularised as leave? The petitioner has referred to Rules 234, 240 and 243 of the Bihar Service Code in the writ petition. Without expressing any opinion as to whether the provisions of. the said Rules can be applied in the case of the petitioner, I am of the view that if the petitioner is entitled to have the period of absence regularised against any kind of leave due under the Bihar Service Code the same should be considered independently. Since the claim of the petitioner has not been considered in the light of the aforementioned Rules or any other rule, which may be applicable, I am inclined to direct the Commissioner and Secretary, Health Department to re-examine the claim of the petitioner. The impugned order dated 3.9.97 contained in Annexure-11 is quashed and the matter is sent back for fresh consideration in accordance with law. The writ petition stands disposed of accordingly.