Where notice and reply are considered, appeal cannot be denied merely on the termination provision cited.

The petitioner, a contractual employee, challenged Memo No. 5415 dated 11 January 2024, by which the State Health Society, Bihar terminated her engagement on the ground that she remained absent from duty after cancellation of her medical leave.

The termination order referred to Rule 12(f) of Chapter 2 of the State Health Society Bihar/District Health Society Human Resource Manual Rules and Regulations, 2021, concerning unauthorised absence for fifteen days or more.

The petitioner contended that the order was effectively passed after issuance of notice and consideration of her reply, attracting Rule 12(e), which permits an appeal against termination.

She had accordingly preferred an appeal before the competent authority, but no decision had been taken on it.

The respondents argued that Rule 12(f) applied, that termination for unauthorised absence did not provide an appellate remedy, and that the writ petition should be dismissed.

1. Whether termination of the petitioner under Rule 12(f) for unauthorised absence, after issuance of notice and consideration of her reply, deprived her of the appellate remedy available under Rule 12(e).

2. Whether the High Court should direct the competent appellate authority to consider and decide the petitioner’s pending appeal against the termination order.

Rule 12 of Chapter 2 of the State Health Society Bihar/District Health Society Human Resource Manual Rules and Regulations, 2021 governs termination of contractual employees.

Rule 12(e) applies where termination is based on unsatisfactory performance or adverse performance and contemplates notice, consideration of the employee’s response, and an appellate remedy within the prescribed period; for district-level posts, an appeal lies before the Executive Director, State Health Society, Bihar.

Rule 12(f) provides that where a contractual employee remains unauthorisedly absent for fifteen days or more, the post is deemed vacant and the Appointing Authority may take action for termination; it does not expressly prescribe a show-cause procedure.

Where the authority undertakes a decision-making process by issuing notice and considering the employee’s reply, the availability of an appeal cannot be denied merely because the termination order refers to a different sub-rule or provision.

The Court distinguished the automatic or contingency-based consequence contemplated by Rule 12(f) from the decision-making process contemplated by Rule 12(e).

Although the impugned order referred to Rule 12(f), it expressly showed that notice had been issued to the petitioner and that her reply had been considered before termination.

This demonstrated that the termination was not merely an automatic consequence of unauthorised absence but followed an adjudicatory decision-making process.

Accordingly, the petitioner could not be denied the appellate remedy solely on the basis of the nomenclature or provision cited in the termination order.

Since the appeal was pending, the Court considered it appropriate to require the competent authority to decide it rather than examine the merits of the termination in the writ proceedings.

The Additional Chief Secretary-cum-Chief Executive Officer, State Health Society, Bihar, or the officer holding that charge, was directed to consider and decide the petitioner’s appeal by a reasoned and speaking order within sixty days of receipt or production of the judgment.

The Court expressly left the merits open and disposed of the writ petition with the aforesaid directions.