Patna High Court - Orders
The State Of Bihar & Ors vs Dr. Krishna Kumar Mallick on 10 September, 2013
Author: R.M. Doshit
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1943 of 2012
In
Civil Writ Jurisdiction Case No. 4826 of 2005
With
Interlocutory Application No. 8244 of 2012
In
Letters Patent Appeal No. 1943 of 2012
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1. The State of Bihar through the Chief Secretary, Bihar, Patna.
2. The Secretary, Finance Department, Government of Bihar, Patna.
3. The Secretary, Health Department, Government of Bihar, Patna.
4. The Director-in-Chief, Health and Family Welfare, Government of
Bihar, Patna.
5. The Accountant General, Bihar, Patna.
.... .... Respondents-Appellants
Versus
Dr. Krishna Kumar Mallick, son of late Brajeshwar Mallick, Resident of
House No.90, Road No.2, Srikrishna Nagar, P.S. Budha Colony, Patna, at
present residing at 1, Preet Vihar Cottage, near Rani Talab, Dhaiya,
Dhanbad.
.... .... Respondent-Petitioner
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Appearance :
For the Appellants : Mr. Y.P. Sinha, AAG-15 with
Mr. R.S. Singh, A.C. to AAG-15
For the Respondent: Mr. Vinod Kumar Kanth, Senior Advocate.
Mr. Ugranath Mallik, Advocate.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
10 10-09-2013This Appeal under Clause 10 of the Letters Patent has been preferred by the respondent State of Bihar against the 2 Patna High Court LPA No.1943 of 2012 (10) dt. 10-09-2013 2/9 judgment and order dated 10th May 2011 passed by the learned single Judge in C.W.J.C. No. 4826 of 2005. Under the impugned judgment, the learned single Judge has held that the writ petitioner has retired from service with effect from 1st April 2000 and that he is entitled to all consequential benefits.
The facts leading to this Appeal are somewhat chequered and are disputed.
The writ petitioner joined the service of the State of Bihar as a Medical Officer in 1979. In November 1999, the writ petitioner, then posted as Medical Officer at Primary Health Centre, Deori, Giridih (now in the State of Jharkhand), submitted application for voluntary retirement effective from 31st March 2000 addressed to the Director-in-Chief, Health Services. As the writ petitioner did not hear anything from the State Government, he put down his papers on 31st March 2000 and left the service on 1st April 2000. Although he had taken voluntary retirement, his claim for recovery of salary for the period from 19 th December 1997 to 21st July 1998 as compulsory waiting period was not paid by the State Government nor his pension or other retiral dues were released. In answer to one of the representations made by the writ petitioner, under order dated 9th December 2004 made by the State Government, the writ petitioner was informed that his application for voluntary retirement had been rejected and that he was placed under suspension and a disciplinary proceeding was pending against him in respect of his complicity in MSD scam. Feeling aggrieved, the writ petitioner approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 4826 of 2005.
According to the writ petitioner, he had completed 20 years of qualified service and he had right to take voluntary retirement as envisaged by Rule 74(b)(i) of the Bihar Service 3 Patna High Court LPA No.1943 of 2012 (10) dt. 10-09-2013 3/9 Code, 1952. As his application for voluntary retirement was not responded to by the State Government, he retired from service by efflux of time after expiry of the notice period. The writ petitioner denied that he was suspended from service or that any disciplinary proceeding was pending against him. During the aforesaid 20 years of service, for five years from 1st July 1993 till 19th December 1997, he had served the Ministry of Health, Government of Libya, a foreign Government sponsored by the Government of India. The said service was, therefore, a pensionable service under the State of Bihar and thus he had completed 20 years of pensionable service.
The petition was contested by the State Government. The State Government denied that the writ petitioner's service under the Government of Libya was sponsored by the Government of India and that it was a pensionable service under the State of Bihar. The State Government also maintained that the application for voluntary retirement purportedly made by the writ petitioner in November 1999 was never received by the Government of Bihar. All that the Government of Bihar received was the intimation dated 1st July 2000 given by the writ petitioner of his giving up the charge unilaterally on 1st April 2000 and the accompanying papers which contained a photocopy of the application for voluntary retirement purportedly made by the writ petitioner. The State Government also maintained that the writ petitioner was involved in MSD scam and that he was suspended from service. A disciplinary proceeding is contemplated/pending against him.
In answer to this, by a rejoinder affidavit, the writ petitioner brought on record the communication dated 24th July 1981 of the State of Bihar, Health Department and the communication dated 13th December 1983 issued by the 4 Patna High Court LPA No.1943 of 2012 (10) dt. 10-09-2013 4/9 Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms.
The learned single Judge having considered the above referred pleadings and judgments of the Hon'ble Supreme Court in the matter of Dinesh Chandra Sangma v. State of Assam and others, (AIR 1978 SC 17) and in the case of Union of India and others v. Sayed Muzaffar Mir, (AIR 1995 SC 176) has been pleased to hold that, "voluntary retirement or compulsory retirement are unilateral acts as against resignation, which is to be accepted. ... ... there is no question of acceptance of request for voluntary retirement (sic. made) by the Government servant when the government servant exercises his right in respect therein." The learned single Judge also held that the writ petitioner had completed 20 years of qualifying service. The learned single Judge did not believe that the writ petitioner was placed under suspension or a disciplinary proceeding was initiated against him as alleged. The learned single Judge also held, "There is no question of completion of 20 years of satisfactory service and further no period of service can be deducted as unauthorized leave or be deemed to be a break in service without a departmental proceeding in that regard having been initiated and concluded."
In view of the aforesaid findings the learned single Judge has allowed the writ petition as aforesaid. Therefore, this Appeal.
Learned advocate Mr. Y.P.Sinha has appeared for the appellants. He has assailed the judgment of the learned single Judge. He has submitted that the writ petitioner left the service without obtaining prior leave to join the service under the Government of Libya. He remained there for five years. The said 5 Patna High Court LPA No.1943 of 2012 (10) dt. 10-09-2013 5/9 service, therefore, cannot be said to be a pensionable service under the State of Bihar. The writ petitioner having not completed 20 years of pensionable service, no right to voluntary retirement had accrued to him. He has also submitted that in view of his involvement in MSD scam and his suspension from service and a disciplinary proceeding pending against him, the writ petitioner cannot be permitted to take voluntary retirement.
Learned counsel Mr. Vinod Kumar Kanth has appeared for the writ petitioner. He has contested the Appeal. He has supported the judgment of the learned single Judge. He has relied upon the Bihar Service Code, particularly Rule 68 thereof to submit that while serving the Government of Libya, the writ petitioner had lien under the State of Bihar. The said service, therefore, cannot be excluded from the qualifying service. He has also relied upon the above referred communications of the State of Bihar and the Government of India. He has vehemently submitted that the Medical officers were invited to accept the service under the Government of Libya and that the writ petitioner had accepted the assignment under the Government of Libya under the sponsorship of the Government of India.
Let us first examine the facts before us. True, although the State Government has made a categorical statement that the writ petitioner is involved in MSD scam; that he has been suspended from service; and that a disciplinary proceeding is pending against him, the aforesaid statements are not corroborated by the documentary evidence or any other particulars. Nor do we get the date of suspension from service or the date of memorandum of charge. In our opinion, the learned single Judge has rightly not believed that the writ petitioner, while in service, was suspended from service or that a disciplinary proceeding was 6 Patna High Court LPA No.1943 of 2012 (10) dt. 10-09-2013 6/9 initiated against him.
The next question of fact that arises before us is whether the writ petitioner can be said to have completed 20 years of qualifying service enabling him to take voluntary retirement effective from 1st April 2000. In our opinion, the learned single Judge has committed error apparent on the face of the record in holding that the factum of completion of 20 years' qualifying service cannot be denied unless a disciplinary proceeding were conducted against the writ petitioner.
Although it has been vehemently submitted that the writ petitioner had accepted assignment under the Government of Libya under the sponsorship of the Government of India, the statement is not supported by documentary evidence. We may refer to the application for voluntary retirement purportedly made by the writ petitioner on 27th November 1999 (Annexrue-1 to the writ petition). The said application starts with a sentence that after return from "Leave", the writ petitioner had reported for duty on 19th December 1997 and that under Notification dated 30th June 1998, he was posted at Primary Health Centre, Deori, Giridih. Thus, the said application gives an impression that before proceeding to join the service under the Government of Libya, the writ petitioner had obtained leave from the State of Bihar. In the rejoinder affidavit also the writ petitioner has made a categorical statement that the Government of Bihar had recommended his name for appointment in a foreign country for improvement of his qualification/experience.
We may note here that nothing on record even remotely suggests that the Government of Bihar had recommended the name of the writ petitioner for the aforesaid foreign service under the Government of Libya or that the writ 7 Patna High Court LPA No.1943 of 2012 (10) dt. 10-09-2013 7/9 petitioner had joined the service under the Government of Libya under the sponsorship of the Government of India. The communication dated 24th July 1981 and 13th December 1983 are totally irrelevant. It does appear that on 24th July 1981, the Government of Bihar had recommended some four Medical Officers under the State of Bihar, including the writ petitioner, for empanelment in the panel for foreign service. Without anything further on the record, it cannot be believed that the said recommendation was subsisting until 1993 and that on the strength of the said recommendation the writ petitioner was sponsored for foreign service by the Government of India. The letter dated 13 th December 1983 is also a general information for possible recruitment of medical and paramedical experts by the Government of Libya for 100-150 beds hospitals. Under the said letter, the Government of India called upon the information in respect of willing officers latest by 26th December 1983. The said letter also specified, "This is neither an offer of appointment nor an assurance that your name will finally be sponsored. It should be treated only as a preliminary enquiry at this stage." It is hard to believe that the Government of India sponsored the writ petitioner for foreign service under the Government of Libya as late as in 1993 on the strength of the information received in 1983. We are unable to accept that the writ petitioner was officially sponsored for foreign service under the Government of Libya or that he was sanctioned leave to join the foreign service as asserted by the writ petitioner. Nor the writ petitioner has brought any material on record to establish that prior to his leaving for Libya, he had applied for leave or that he had obtained leave to join the foreign Government. The writ petitioner has also not brought on record the required sanction of the State Government.
8 Patna High Court LPA No.1943 of 2012 (10) dt. 10-09-2013 8/9We are, therefore, constrained to hold that the writ petitioner was absent without leave for the aforesaid period from 1st July 1993 to 19th December 1997. There is nothing on the record to suggest that the writ petitioner ever applied for regularization of the said absence. Unless, the said absence were regularized against admissible leave or as leave without pay, the said service cannot be treated as pensionable service. Further, unless regularized, the absence from service would amount to a break in service. In our opinion, in either case the writ petitioner was not entitled to the benefit of pension. If the aforesaid period of five years were treated as break in service, the writ petitioner would forfeit his right to pension for earlier service from 1979 to 1993. He, therefore, could not be said to have completed qualified service for pension on his retirement on 1st April 2000. Even in case, the said service from 1st July 1993 to 19th December 1997 were not treated as break in service, the five years he served under the Government of Libya cannot be treated as pensionable service under the Government of Bihar. In that case the total service rendered by the writ petitioner would be less than 20 years. The writ petitioner, therefore, did not qualify for voluntary retirement as envisaged by Rule 74(b)(i) of the Bihar Service Code. The writ petitioner, therefore, could not have proceeded on voluntary retirement on 1st April 2000 as he did.
Further, the State Government has categorically denied that the said application was received by it any time prior to the intimation dated 1st July 2000 sent by the writ petitioner. Nor has the writ petitioner brought anything on the record to prove that the voluntary retirement allegedly submitted by the writ petitioner was ever sent to the appointing authority.
Now that we have held that the writ petitioner was 9 Patna High Court LPA No.1943 of 2012 (10) dt. 10-09-2013 9/9 not entitled to take voluntary retirement effectively on 1st April 2000, as a necessary consequence he should join the duty and the question of interim period requires to be considered by the State Government. However, in view of passage of time such a course of action will not be conducive to the administration. The writ petitioner cannot be called upon to join the duty now more than 13 years after he left the service voluntarily and unilaterally. He may also have reached the age of superannuation.
We, therefore, hold that the writ petitioner abandoned the service as early as in 1993 when he proceeded to join the service under the Government of Libya without obtaining prior leave and sanction of the State of Bihar. Once again, he abandoned the service on 1st April 2000 when he put the papers down unilaterally and voluntarily. We are, therefore, of the opinion that the writ petitioner is not entitled to the pension or other retiral dues claimed by him.
For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 10th May 2011 passed by the learned single Judge in C.W.J.C. No. 4826 of 2005 is set aside. C.W.J.C. No. 4826 of 2005 is dismissed.
Interlocutory Application stands disposed of.
(R.M. Doshit, CJ) Ashwani Kumar Singh, J :
I agree.
N.A.F.R. (Ashwani Kumar Singh, J) Pawan/-