IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 105 of 2005 BISHNU DEO SINGH Versus THE STATE OF BIHAR & ORS ----------- 07. 16.03.2011 Heard learned counsel for the petitioner and the counsel appearing for the State of Bihar as well as State of Jharkhand. The period, during which the incident took place and which gave rise to institution of a criminal case as well as initiation of Departmental Proceeding against the petitioner, is of 1997. During this period, petitioner, who was posted as Constable at Gumla, which is now in Jharkhand State, Chaibasa P. S. Case No. 42 of 1997, was instituted against the petitioner under section 376, 366A and 366 of the Indian Penal Code on the allegation that he committed rape upon one Budhani Tutu, giving false assurance of marriage as well as employment. The criminal case was tried vide Sessions Trial No. 207 of 2001, and it ended in acquittal of the petitioner. A Departmental Proceeding had also been initiated against the petitioner for similar charges, Departmental Proceeding No. 36/98 was initiated against the petitioner, in which the Enquiry Officer found all charges framed against the petitioner to be 2 proved. The Disciplinary Authority awarded punishment of dismissal from service to the petitioner. Against the punishment order, an appeal was preferred by the petitioner before the Deputy Inspector General of Police, South Chhotanagpur Range at Ranchi. During the pendency of the appeal Sessions Trial was concluded and ended in acquittal of the petitioner. The judgment passed in Sessions Trial No. 207 of 2001 was brought before the Appellate Authority. The Appellate Authority considering the evidence and Judgment of Sessions Trial, set aside the order of punishment awarded to the petitioner in the Departmental Proceeding and appeal was allowed vide Memo No. 613, dated 27.03.2003 with a direction to reinstate the petitioner in service. The Superintendent of Police, Gumla receiving the order passed in appeal, passed an order for petitioner’s re-instatement, allotted his Brass No. 192 of Armed Force and also directed for payment of entire back-wages / dues of the termination period, vide Memo No. 819, dated 19.07.2003. However, subsequently, when the petitioner was transferred to Sheohar, the order of 3 S.P., Gumla was revised by the Superintendent of Police, Sheohar to the extent that petitioner was allowed to receive salary from the date of joining, but so far period in between dismissal and reinstatement is concerned, payment of salary was refused, observing the policy of “no work no pay”. This order was challenged by the petitioner by filing C.W.J.C. No. 12573 of 2003. The Writ Application was dismissed vide Order, dated 07.01.2004 and the Hon'ble Judge recorded a finding that “I do not find any illegality or infirmity in the order impugned. However, in case the petitioner would have any grievance, he may represent his case before the appropriate authority for redressal of his grievance.” Taking advantage of the last two lines of the order, the petitioner moved before the DIG, South Chhotanagpur, Ranchi with a prayer that a direction be issued for payment of his salary for the period in between dismissal and reinstatement in service, i.e., 17.11.2000 to 28.06.2003. By the impugned order, dated 06.09.2004, contained in Memo No. 2233, prayer of the petitioner has been rejected on the ground that for the period of dismissal petitioner is not entitled for any salary as per the principle of “no 4 work no pay”. Counsel for the petitioner has submitted that the impugned order is completely against Rule 841(2)(a) of the Bihar Police Manual. Rule 841(2)(a) of Bihar Police Manual deals with the payment of full salary and allowance to such Government employee, who have been reinstated on setting aside of their order of dismissal / removal from service or compulsory retirement or revocation of suspension. Rule 841(2)(a) provided that competent authority will pass an order for full payment of salary with allowances, if the employee has been fully exonerated, and if employee would have been entitled for the same on account of remaining in service. On perusal of this provision I find that for allowing full salary and allowance, for the period of dismissal on reinstatement, it is essential criteria that the employee must have been fully exonerated of the charge, for which he had been dismissed from service. In the present case, charges were proved against the petitioner in the Departmental Enquiry. He was awarded punishment of dismissal from service. Till the date, Department Enquiry was 5 concluded, criminal case instituted against the petitioner had not been concluded and judgment of acquittal was not passed in the Sessions Trial. The Evidences brought before the Trial Court were not brought by the petitioner before the Enquiry Officer. The Enquiry Officer had found charges proved against the petitioner, on the basis of evidence brought before him. During the pendency of the appeal, the petitioner was acquitted in the Sessions Trial. The judgment passed in the Sessions Trial as well as the evidence adduced before the Sessions Court, were brought by the petitioner before the Appellate Authority. Placing reliance on the finding recorded by the Sessions Court, the Appellate Authority set aside the order passed in the Departmental Proceeding, whereby punishment of dismissal had been awarded against the petitioner. Appellate Court directed to reinstate the petitioner and for payment of his salary and allowances. The Appellate Authority did not consider evidences considered in the Departmental Proceeding. Appellate Court did not record any finding that Departmental Proceeding had not been conducted following the procedure and the rule. There was no 6 finding recorded by the Appellate Authority that evidence, considered by the Conducting Officer to prove charges were not sufficient for recording this finding. There was no other reason for altering the order passed in Departmental Proceeding other than the Judgment of the Sessions Court and the evidence adduced before it. The Appellate Authority set aside the order awarding punishment, considering Judgment passed in Sessions Trial, though criminal case and Departmental Enquiry were two separate and different proceedings. Petitioner had not been fully exonerated from the charges framed against him, as charges were found to be proved in the Departmental Proceeding. Counsel, appearing for the petitioner, also submits that the earlier Writ Application, filed by him, though dismissed, but liberty was given to him for representing before the appropriate authority for redressal of his grievance. This means that the modified order regarding “no work no pay” though not interfered by the Hon'ble Judge, petitioner was given liberty to approach for redressal of his grievance before the appropriate authority. On perusal of the order, passed in C.W.J.C. 7 No. 12573 of 2003, I find that Hon'ble Judges did not find any illegality on infirmity in the impugned order. Writ Application had been filed against the order, whereby earlier order allowing full salary and allowances had been modified and petitioner was debarred from receiving salary for the period of dismissal, following the principle of “no work no pay”. The liberty, granted to the petitioner, could not have been for challenging same order before the concerned authority, which was found to be legal by the Hon'ble Judge in the earlier Writ Application. I find that the liberty given to the petitioner was restricted only for payment of salary for the period after his joining in the service and not for the period of dismissal from service. The petitioner has placed reliance on two judgments, one reported in 2004(4) PLJR 517 (Rajib Lochan Jha Vrs. The State of Bihar & Ors.) and another reported in 2000(2) All PLR 289 (Javed Shoukat Vrs. The State of Bihar & Ors.). In 2004(4) PLJR 517, it was alleged by the petitioner that the Departmental Proceeding was conducted contrary to all canons of law and procedure. Despite this, the Disciplinary Authority awarded punishment of 8 dismissal from service against the employee. For similar charges, if criminal case was also instituted, which ended in acquittal, in that case, the Authorities were bound to review the order passed in the Departmental Proceeding and come to a fresh conclusion with regard to the Departmental misdemeanor. In the present case, there is no such allegation at any stage by the petitioner that Departmental Proceeding was not conducted properly or it was conducted without following the rules and the procedures. Facts of the present case being different from the facts of the case in the reported decision, I do not find that the petitioner can get any benefits of this Judgment. In 2000(2) All PLR 289 also, the facts are distinguishable from the facts of this case. The decision of the criminal court, which ended in acquittal of the delinquent, was brought before the Conducting Officer, that was ignored and in an ex-parte proceeding, the punishment was awarded against the employee. In this case, the orders passed in the Departmental Proceeding by the authorities concerned were never challenged by the petitioner, filing a Writ Application, in which a finding had been recorded that no 9 infirmity or illegality is apparent in the impugned order. Once this finding has been recorded in the Writ Application, for similar relief, the petitioner could not have approached Respondent authorities by filing representation. I do not find any illegality in the impugned order. For the reasons, stated above, I do not find any merit in this Writ Application. Accordingly, it is dismissed. SKM (Mridula Mishra, J.)