MALTI JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The Petitioner, who is a doctor and a Member of the Bihar Health Service, has challenged the order of the State Government dated 29.01.2002 (Annexure-1) by which for certain periods, it has been ordered that they would be treated as leave without pay. Counter affidavit and rejoinder are on record and the parties have been heard at length.

(2.) There are three periods under consideration. The first period is from 12th of May, 1994 to 04th of July, 1995. The second period is 12th of December, 1996 to 05th of October, 1998 and the third period is 06th of October, 1998 to 22nd of June, 2001. As noted above, all these periods have been treated as leave without pay. Ordinarily, these being essential questions of fact, this Court is reluctant to interfere in the limited judicial review jurisdiction where the fact finding authority has taken into consideration and determined question of fact especially when it is not shown that the findings are perverse or dehors materials on record but as the learned Counsel for the Petitioner invited the Court to go into the questions of fact on the plea of perversity of findings, this Court, though reluctantly, is dealing with the same.

(3.) So far as the first period that is 12.05.1994 to 04.07.1995 is concerned, the Petitioner's plea is that she was under suspension which she had challenged in CWJC No 1620 of 1994. It is in course of those proceedings that she came to know that her suspension had been revoked and she was directed to rejoin her place of posting at Hazaribagh. She was not duly communicated the order of revocation of suspension or direction to join her post and, as such, she cannot be blamed and that period cannot be treated as leave without pay. On behalf of the State, it is submitted that while she was suspended, she was not found at her Headquarters that was fixed. While the said writ petition was pending, on the intervention of the Court, the suspension was revoked on 11.05.1994 and she was directed to join her place of posting at Hazaribagh which she failed to do. The said writ petition being CWJC No 1620 of 1994 was disposed of on 25.05.1995 which order Petitioner herself has annexed as Annexure-7 and which order itself noted that during pendency of the writ petition itself, the suspension had been revoked on 11.05.1994 yet she chose to join her place of posting at Hazaribagh Sadar Hospital only on 05.07.1995 long after the disposal of the writ petition itself and, as such, for the period after revocation of suspension to her joining, was rightly held as period of leave without pay.