KARUNA JHA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In the accompanied writ application initially the petitioner has inter alia prayed for quashing resolution dated 25.07.2012 whereby a departmental proceeding has been initiated against the petitioner and for quashing memo dated 20.02.2013, by which, the petitioner has been directed to deposit a sum of Rs. 23,65,858/- in the name of Director, RIMS against the amount which was paid to her against the termination period.

(2.) Sans details, the facts as delineated in the writ application, is that the petitioner was appointed on the post of Civil Assistant Surgeon vide notification dated 13.08.1976 and pursuant thereto, she joined at State Dispensary, Chanho Block, Ranchi on 19.08.1976. During service period, the petitioner was transferred to one place to another place and ultimately in the year 1980 she was transferred to Rajendra Medical College and Hospital, Ranchi on the post of Resident Surgical Officer and by passage of time, she got promotion to the post of Associate Professor in the Department of Gynecology and Obstetrics. After bifurcation of State of Bihar w.e.f 15.11.2000, the State of Jharkhand enacted the provisions of Rajendra Institute of Medical Sciences Act, 2002 in terms whereof, Rajendra Medical College and Hospital, Ranchi was converted into an autonomous institution and named as Rajendra Institute of Medical Sciences. It has been averred that when the option for absorption was called for, the petitioner submitted a conditional option on 12.08.2003 stating that in case, the service conditions at RIMS would be appropriate then she would like to be absorbed at RIMS as the service conditions and regulations which would be applicable on RIMS have not been made known to the petitioner or framed by RIMS in terms of Section 32 of the RIMS Act, 2002. It has been submitted that in the year 2006 since the petitioner fell ill, she submitted medical leave but to the utter surprise she was directed to give her joining report and when the petitioner received memo dated 22.06.2006, she informed about her illness and submitted that she had already sent application for extension of her medical leave and requested that since she is entitled for earned leave, medical leave, emergency leave, she could be paid her arrears of salary after making appropriate adjustment of her leave. But to the utter surprise, the petitioner was served with memo dated 18.08.2006, whereby she was informed that she has been removed from services. Aggrieved thereof, the petitioner knocked the door of this court by filing W.P. (S) No. 5991 of 2006, which was allowed vide order dated 07.07.2011 by quashing impugned order of termination dated 18.08.2006 with a direction to Director, RIMS to consider the claim of the petitioner for payment of arrears of her salary and pass appropriate order. Pursuant thereto, the petitioner immediately gave her joining report before Director, RIMS, which was accepted vide memo dated 25.07.2011. Thereafter, the petitioner applied for voluntary retirement on 09.09.2011 before the Secretary, Health, Medical Education and Family Welfare Department, Govt. of Jharkhand, Ranchi and the Department sent a letter to RIMS to send a clear report with his recommendation with regard to the application for voluntary retirement since her leave had to be adjusted. But when the petitioner did not hear of anything with regard to acceptance of her voluntary retirement, she gave reminder to Secretary, Health, Medical Education and Family Welfare Department, Govt. of Jharkhand, Ranchi. But to the utter surprise, she received a resolution dated 25.07.2012 whereby a departmental proceeding was initiated against the petitioner on the charge that she has been doing private practice and has been absenting herself from her duties and second charge is that though she was removed from services w.e.f 7.10.2005 vide office order dated 18.08.2006 for unauthorized leave of eleven months but in spite of that she gave her joining suo moto and disobeyed the government order. The said departmental proceeding culminated in passing of impugned order dated 20.02.2013 whereby the petitioner has been directed to deposit a sum of Rs. 23,65,858/- in the name of Director, RIMS against the amount which was paid to her against the termination period.

(3.) Learned counsel for the petitioner submitted with vehemence that this Court vide order dated 07.07.2011 passed in W.P. (S) No. 5991 of 2006 has been pleased to quash the order of termination dated 18.08.2006 and hold that the petitioner shall be entitled to get all benefits without break in service and a direction was given to Director, RIMS to consider the claim of the petitioner for arrears of service, as such the petitioner was paid the arrears, hence, the order of recovery is not sustainable in the eye of law. It has further been submitted before issuance of impugned order of recovery neither any show cause notice was issued nor any departmental proceeding was initiated nor any opportunity of hearing was afforded to the petitioner rendering the impugned order bad in law as the same has been passed without following the elementary principle of natural justice. Learned counsel for the petitioner further submits that the impugned order of recovery is illegal and bad as there has been no misrepresentation or fraud on the part of the petitioner rather the petitioner has been paid the said amount in pursuance of order passed by this Hon'ble Court. Learned counsel for the petitioner further submitted that since the petitioner had applied for voluntary retirement on 09.09.2011, hence, on completion of three months, it would be deemed to have been accepted since she fulfills all the criteria laid down in Rule 74 (b) of the Jharkhand Service Code, 2001 as such she was no more a government servant after 09.12.2011.