AI Structured Summary
Not yet generated for this judgment
Judgment
Date : 27-08-2026 Heard learned counsel for the petitioner petitioner, learned counsel for the State and learned counsel for the State Health Society Bihar.
Learned counsel for the petitioner submits that the present writ petition has been filed for quashing the order contained in Memo No. 5415 dated 11.01.2024, as contained in Annexure P/10, by which the services of the petitioner have been terminated by the State Health Society, Bihar, Patna, under the signature of the Executive Director, State Health Society, Bihar. Learned counsel further submits that the impugned order has been passed on the ground that the petitioner had applied for medical leave for a period of three months and six days, which was subsequently cancelled, but despite cancellation of the leave, the petitioner continued to remain absent from duty without authorization. Learned counsel for the petitioner further submits that the petitioner has also prayed for a direction to the respondent authorities to permit her to continue in service and to make payment of her salary and arrears of salary, to which she claims to be legally entitled, in the interest of justice.
Learned counsel for the petitioner submits that against the impugned order dated 11.01.2024, contained in Memo No. 5415 (Annexure P/10 to the writ petition), issued by the Executive Director, State Health Society Bihar, Patna, the petitioner has preferred an appeal, as contained in Annexure P/11 to the writ petition. However, no decision has been taken on the said appeal as yet. Learned counsel further submits that the impugned order has been passed in purported exercise of powers under Rule 12(e) of the State Health Society Bihar/ District Health Society, Human Resource Manual Rules and Regulations, 2021. Learned counsel for the petitioner further submits that since no decision has been taken on the appeal preferred by the petitioner, as contained in Annexure P/11 to the writ petition, she has been left with no efficacious alternative remedy except to approach this Court by filing the present writ petition.
Learned counsel for the State, on the other hand, submits that the services of the petitioner have been terminated in terms of Rule 12(f) of the aforesaid Rules and Regulations. He submits that there is no provision for preferring an appeal in the present matter, as the decision for termination of the petitioner’s contractual engagement has been taken on the ground of her unauthorized absence for fifteen days or more. Learned counsel further submits that Rule 12(e) has no application to the facts of the present case.
Learned counsel appearing for the State Health Society Bihar, Patna supports the submissions advanced by learned counsel for the State. He submits that the impugned order, dated 11.01.2024, contained in Annexure P/10 to the writ petition, categorically records that the decision for removal of the petitioner has been taken in terms of Clause 12(f) of Chapter 2 of the HR Policy. The said provision stipulates that if a contractual employee remains unauthorizedly absent for fifteen days or more, his/her post shall be deemed to be vacant and action for termination of his/her engagement shall be taken by the Appointing Authority. He further submits that, in such circumstances, no interference is required by this Court and the present writ petition is fit to be dismissed.
For better appreciation of the matter, it would be apposite to quote Rule 12 of Chapter 2 of the HR Policy:
“12.TERMINATION OF CONTRACT As per the provisions laid down under Chapter – 8
“Employees Control & Appeal Rules” the Society reserves right to terminate the services of contractual employee by assigning reasons thereof with or without 30 days written notice or one month pay in lieu of such notice. The right to termination shall be exercised under the following conditions:
a)If it is found anytime during the service of the contractual employee that he has submitted false information to support his candidature for position or the police verification report is found against him.
b)On the judgement of the Appointing Authority that the activities and behaviour of the Contractual employee is inappropriate, endangers the success of the programme or contravene local laws and customs.
c)On the judgement of the Appointing Authority if it is found that the contractual employee is using the resources of the Society or his present position for personal gains or favours.
d)During the course of service, the contractual employee will be handling public money. If it is found that the contractual employee is responsible for misutilisation, misappropriation, defalcation-temporary or permanent of money, any act of omission/commission leading to loss of money to Society/Government or undue gain to any entity, the financial loss caused to the Society shall be recovered from the contractual employee after due enquiry. Such recoverable money will be part of ‘public demand’ as defined in the Public Demands Recovery (PDR), Act, 1914 and the services of such employee concerned shall be terminated.
e)If the performance of the contractual employee is found unsatisfactory or against the interest of the Society by the competent authority, in such cases the services of the contractual employee is liable to be terminated after giving 30 days’ notice. The employee shall however have the option to file an appeal before the Chief Executive Officer, SHSB within 30 days against the termination order.In respect of district level posts in case of unsatisfactory or Adverse Performance Appraisal Report, decision on contractual employee service agreement will be taken by the Governing body of DHS. In the event of termination of employment, the employee shall have the option to file appeal before the Executive Director, SHSB within 30 days against the termination order.
f)If the contractual employee remains on unauthorised absence for 15 days or above, then his/her post shall be deemed to be vacant and action for his/her termination will be taken by the Appointing Authority.
g)In the event, contractual employee is declared to be medically unfit to remain in service by a medical board, in such situation his/her services shall be terminated after giving 30 days’ notice.”
Upon perusal of the impugned order, this Court finds that Rule 12(f) does not contemplate the grant of any opportunity of showing cause. On the other hand, Rule 12(e) provides for grant of an opportunity to show cause and/or issuance of thirty days' notice.
In the present case, however, the impugned order itself reveals that a notice was issued to the petitioner and the petitioner had also submitted her reply, which was considered by the competent authority.
In the considered opinion of this Court, there is a clear distinction between the proceedings contemplated under Rule 12(e) and Rule 12(f). Rule 12(f) operates upon the occurrence of the stipulated contingency and does not contemplate any decision-making process involving consideration of the employee's explanation. On the other hand, Rule 12(e) contemplates a decision-making process by the competent authority after issuance of notice and consideration of the reply submitted by the concerned employee.
Upon a conjoint reading of the provisions of Rule 12 of Chapter 2 of the HR Policy, this Court is of the view that wherever an order is passed after undertaking a decision-making process, particularly after issuing notice and considering the reply of the concerned employee, the remedy of appeal, if otherwise available under the Rules, cannot be denied merely on the nomenclature or provision referred to in the impugned order.
In the present case, the impugned order discloses that an opportunity to show cause was granted to the petitioner and her reply was considered before the decision was taken. Thus, a decision-making process had admittedly taken place. In such circumstances, this Court finds that the petitioner has rightly adopted the remedy of preferring an appeal against the impugned order.
In view of the aforesaid facts, and considering that the appeal preferred by the petitioner is pending before the Additional Chief Secretary-cum-Chief Executive Officer, State Health Society Bihar, Patna, this Court directs the Additional Chief Secretary-cum-Chief Executive Officer, State Health Society Bihar, Patna or in his absence either Principal Secretary or Secretary as the case may be, holding the charge of Chief Executive Officer, State Health Society Bihar, Patna, to consider and decide the appeal of the petitioner by passing a reasoned and speaking order, in accordance with law, within a period of sixty days from the date of receipt/production of a copy of this order.
It is made clear that this Court has not expressed any opinion on the merits of the claim of the petitioner, and the appellate authority shall decide the appeal independently and in accordance with law.
With the aforesaid observations and directions, the present writ petition stands disposed of.