IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1225 of 2010 IN (CIVIL WRIT JURISDICTION CASE 10353/2006) ======================================================= Arun Kumar Sinha, S/O Late Jalendra Prasad Singh Resident of Nihura, P.O.- Dhibra, P.S.- Janipur (Phulwari Sharif), District- Patna. Versus 1. The State of Bihar. 2. The Chief Secretary, Old Secretariat, Patna. 3. The Secretary, Board of Revenue, Bihar, Patna. 4. The Secretary Personnel and Administrative Reforms Department, Government of Bihar, Patna. 5. The Deputy Secretary Personnel and Administrative Reforms Department, Government of Bihar, Patna. ----------------------------- For the Petitioner: - Mr. Gopal Govind Mishra, Advocate. Mr. Vijay Kumar Mishra, Advocate. For the State: - Mr. Tej Bahadur Singh, A.A.G. 7. Mr. Brisketu Sharan Pandey, A.C. to A.A.G.7 ------------------------------ CORAM: HONOURABLE MR. JUSTICE S.K.KATRIAR and HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH -------------------- Ahsanuddin Amanullah, J. Heard Mr. Gopal Govind Mishra for the appellant and Mr. Tej Bhadur Singh learned Additional Advocate General No. 7 for the respondents. 2. The present appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna has been filed against the order dated 30.6.2010 passed in C.W.J.C. No. 10353 of 2006 (Arun Kumar Sinha Vs. The State of Bihar & Ors.). Patna High Court LPA No.1225 of 2010 dt.25-08-2011 2 The writ petition was filed for setting aside the order of dismissal from service of the writ petitioner on the ground of being convicted in a criminal case under Sections 307, 408 (A) and 34 of the Indian Penal Code and Section 27 of the Arms Act read with Sections 3 and 4 of the Dowry Prohibition Act. The respondents, pursuant to the order of conviction passed against the writ petitioner in the said criminal case, by order dated 17.10.2005 dismissed the petitioner from service. 3. Being aggrieved by the same the petitioner had moved this Court in the said writ petition. The main ground for assailing the order of dismissal was that the petitioner was acquitted in the appeal filed by him against the conviction order by the High Court. It was his contention that in view of the conviction order not remaining the ground for dismissal itself is washed away and thus the petitioner was entitled to reinstatement with all consequential benefits. 4. After hearing the parties, the learned Single Judge was in agreement with this proposition on behalf of the writ petitioner that once the conviction, which was the sole ground of the dismissal order, itself did not remain, the petitioner Patna High Court LPA No.1225 of 2010 dt.25-08-2011 3 was entitled to be taken back in service. In that view of the matter the order of termination was set-aside. However, the learned Single Judge had observed that in view of the various decisions of the Apex Court on the point of entitlement of payment of salary etc. for the period during which the person was removed from service, the entitlement may not be there. Still, the question was left to the authority for consideration and for taking a decision. Being aggrieved by the said observation of the learned Single Judge with regard to not holding the petitioner entitled for the salary etc. for the period during which he remained out of service, the present appeal has been filed. Learned counsel appearing for the appellant had drawn this Court‟s attention to Annexure-A of the supplementary affidavit which is an order dated 24.11.2010 which has been passed pursuant to the order under appeal and by which the petitioner has been reinstated in service maintaining continuity but he has been denied payment for the period, he was dismissed, on the principle of no work no pay. Learned counsel appearing for the petitioner while assailing the order under appeal as well as the consequential order dated 24.11.2010 passed by the Department Patna High Court LPA No.1225 of 2010 dt.25-08-2011 4 submits that in view of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the „Rules‟) as well as various reported decisions of this Court, he was entitled to full salary for the period during which he was dismissed. He has specially relied on Sections 12 and 13 of the Rules which deals with termination of service, reinstatement and admissibility of pay and allowances after dismissal/compulsory retirement as a result of appeal or where the same has been set aside by a Court of law. Relying on the same he contends that the petitioner is entitled to the entire salary for the period during which he was dismissed and later on reinstated pursuant to order of this Court which itself was based on the fact that he was acquitted in appeal by the High Court. He has also relied upon the order passed by this Court by a learned single Judge in the case of Devendra Prasad Sinha Vs. The State of Bihar & Ors. reported in 2006 (4) PLJR 230 as well as the order passed by a Division Bench of this Court in the case of Bhagirath Mahto Vs. The State of Bihar & Ors. reported in 2008 (2) PLJR 597. 5. Learned Senior counsel appearing for the respondents on the other hand submits that the Patna High Court LPA No.1225 of 2010 dt.25-08-2011 5 case of the petitioner is not squarely covered under Sections 12 and 13 of the Bihar C.C.A. Rules, 2005 since it relates to an inter departmental appeal pursuant to any order or punishment passed against an employee as well as a case where the said order of punishment was set aside by a Court of law. He contents that in the present case the action of the department in dismissing the petitioner from service was based on bona fide ground in as much as he had been convicted by a Court of competent jurisdiction in a criminal case against him and thus the said situation was not covered by the Rules under consideration. He further contends that this is not a case where the dismissal order has been set- aside by a Court of law in the sense that the Court has only set aside the order of dismissal on the ground that the reason for dismissal on conviction in a criminal case did not exist in view of the fact that the petitioner was subsequently acquitted in appeal. He has further placed reliance on the judgment of the Hon‟ble Apex Court in the case of Coal India Limited & Ors. Vs. Ananta Saha & Ors. reported in (2011) 5 SCC 142 the relevant portion being paragraph 49 of the said judgment. 6. After hearing learned counsel for the Patna High Court LPA No.1225 of 2010 dt.25-08-2011 6 parties and considering the rival contentions as well as the materials available on record, we are of the opinion that the order under appeal is sound and needs no interference. The learned Single Judge has rightly set aside the order of dismissal but has left it open to the authority to decide with regard to the issue relating to payment of salary etc. The authority after due consideration has reinstated the appellant maintaining his continuity in service but had denied the salary for the said period on the sole ground of no work no pay which is justified in the facts and circumstances of the present case. The decision relied upon by the learned counsel appearing for the appellant in the case of Devendra Prasad Sinha (Supra) is not applicable in the present case since in the said case the dismissal order was quashed by this Court but there was no observation as to how the period between the dismissal order and order of the Court should be treated. In such circumstances, this Court was of the opinion that once the dismissal order was quashed, status quo as obtaining at the time when the dismissal order was passed should automatically revive and accordingly the petitioner had been held entitled to his salary for the said period. In the present case the learned Patna High Court LPA No.1225 of 2010 dt.25-08-2011 7 Single Judge after setting aside the order of dismissal has himself indicated that the petitioner may not be entitled for salary etc. in view of the various decisions of the Hon‟ble Apex Court. Thus, the said decision does not support the contention as raised by learned counsel for the appellant. As far as other decision relied upon by learned counsel for the appellant in the case of Bhagirath Mahto (Supra), the facts of the case are substantially different from the present case. In the said case, pursuant to certain charges, both departmental proceeding as well as criminal proceeding were initiated. In the criminal proceeding, due to lack of fool proof evidence, the persons could not be convicted whereas in the departmental proceeding on the same charges he was punished. The Court in that background held that since the level of scrutiny and trial is more stringent in a criminal trial compared to a departmental proceeding and once there is an order of acquittal in the criminal case then on that very same charges the departmental proceeding could not be justified and any punishment order passed could not be sustained. In the present case there has been no departmental proceeding against the petitioner. The department only passed an Patna High Court LPA No.1225 of 2010 dt.25-08-2011 8 order based upon the conviction recorded by the competent criminal Court and thus it cannot be contended that the order of dismissal was unjustified which could warrant reinstatement with full wages for the said period. Thus this decision also does not come to the rescue of the appellant. On the other hand the decision relied upon by learned Senior counsel for the respondents in the case of Coal India Limited (Supra) is more relevant in the facts and circumstances of the present case, specially paragraph 49 which is quoted hereinbelow. 49. “The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the Court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the Court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wage is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic”. 7. It has been consistently and rightly Patna High Court LPA No.1225 of 2010 dt.25-08-2011 9 held that there is no straitjacket formula for dealing with cases regarding entitlement of back wages pursuant to reinstatement. The factual scenario and the principles of justice, equity and good faith have to be kept in mind by the appropriate authority. In the present case, considering the entire over all perspective, we feel that the order of reinstatement dated 24.11.2010 is a balanced one and does not require any interference. The interest of the appellant has been protected to the extent he is entitled to in law. 8. For the reasons aforesaid, we do not find any reason to interfere in the order under appeal. Accordingly the L.P.A. stands dismissed. There shall be no order as to cost. I agree (S. K. Katriar, J.) Patna High Court, Dated,25th August, 2011 Anand Kr./NAFR (Ahsanuddin Amanullah, J.) (S. K. Katriar, J.)