IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8220 of 2009 Lallan Pandey Versus The State Of Bihar & Ors ----- For the Petitioner : Mr. Ram Hriday Prasad, Advocate For the State : Mr. Chandra Shekhar Singh, JC to GP 12 2. 09.08.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner, a Constable, was charged for 25 days of alleged unauthorized absence. The departmental proceeding led to dismissal on 15.7.2005. In the memorial on 23.11.2006 it was noticed that there was procedural deficiency in the conduct of the proceeding. The period from dismissal was to be reckoned as an extra ordinary leave and directions for fresh proceedings were given. The fresh proceedings have resulted in a report of exoneration on 10.11.2007. Learned Counsel for the petitioner submits that in view of the subsequent exoneration the suspension dated 20.10.2001 till 14.7.2005 is therefore wholly unjustified and despite recommendation to that effect salary for the period of suspension has not been paid. He next submits that in view of the exoneration in the departmental proceeding the petitioner is entitled to full salary for the period from dismissal till reinstatement. The order of the Director General of Police dated 23.11.2006 adjusting the same against extra ordinary leave was but an interim arrangement to facilitate fresh enquiry. Learned Counsel for the State submits that a counter affidavit has been filed. No copy is available on record. Learned Counsel for the petitioner also submits that no copy has been served on him. Counsel for the State very fairly submits that even the counter affidavit 2 stops on the earlier order of dismissal and does not deal with the claims in light of the subsequent exoneration. If the petitioner has been subsequently exonerated, naturally the dismissal is unjustified. The petitioner was wrongly kept away from the work. But back wages do not necessarily follow as a matter of course. The view now being taken by the Courts is that the grant of back wages is dependant upon certain other factors also and the petitioner cannot have double bonanza of dual income during that period. The law on back wages after reinstatement has recently been considered in (2009) 9 SCC 597 (C. N. Malla Vs State of Jammu and Kashmir) at paragraph 11 as follows:- “11. The legal position is fairly settled by a catena of decisions that direction to pay back wages in its entirety is not automatic consequent upon declaration of dismissal order bad in law. The concept of discretion is inbuilt in such exercise. The court is required to exercise discretion reasonably and judiciously keeping in view the facts and circumstances of the case. Each case, of course, would depend on its own facts.” In the facts and circumstances of the case the finding of the respondents themselves that the earlier enquiry was defective, the petitioner’s absence having been found to be justified, the Court holds that the petitioner is entitled to 50% of the back wages only. Insofar as the remaining 50% of the back wages from the period of dismissal till reinstatement, let the petitioner represent before the Superintendent of Police. The Superintendent of Police shall hold an enquiry with regard to the status of the petitioner in the interregnum and then pass appropriate orders with regard to the balance claim for wages to the extent of 50%. 3 Let this order on both counts be complied with within a maximum period of two months from the date that the petitioner submits his application before the Superintendent of Police. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)