IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10967 of 2006 AWADHESH PRASAD SINGH, SON OF LATE MANGAL PRASAD SINGH, RESIDENT OF VILLAGE – NAWADA, P.S. SARAIYA, DISTRICT – MUZAFFARPUR, PRESENTLY POSTED AS CONSTABALE , POLICE LINE, SHEOHAR, DISTRICT – SHEOHAR. …………. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE COMMISSIONER –CUM- SECRETARY, DEPARTMENT OF HOME (POLICE) OLD SECRETARIAT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR GENERAL OF POLICE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE, CHAMPARAN RANGE, BETTIAH. 5. THE SUPERINTENDENT OF POLICE, GOPALGANJ, DISTRICT – GOPALGANJ. 6. THE SUPERINTENDENT OF POLICE, EAST CHAMPARAN, MOTIHARI. ………… RESPONDENTS. FOR THE PETITIONER : - MR. S.B.K. MANGALAM, ADVOCATE MR. SHASHI BHUSHAN SINGH, ADVOCATE FOR THE STATE : - MR. NEERAJ KUMAR, AC TO SC 7. ----------- 02/ 14.02.2011 Heard counsel for the petitioner and the counsel appearing for the State. I.A. No. 5522 of 2010 has been filed by Ranju Sinha widow of Awadhesh Prasad Singh, informing the Court that during the pendency of writ application writ- petitioner was murdered by Maoists, on 27.8.2009. His dead body was found thrown in the Hotel Conclave, Hill Cart Road, Siliguri. Prayer of the legal heir of original writ-petitioner, widow of Awadhesh Prasad Singh is to expunge the name of original writ-petitioner from the records of the case and to substitute her name in place of her husband Awadhesh Prasad Singh. Interlocutory 2 application is allowed. Ranju Devi is directed to be substituted in place of Awadhesh Prasad Singh after expunging his name from the records of the case. The original writ-petitioner was working on the post of Constable at Mohammadpur Police Station in the year, 2001. One Mithilesh Prasad Yadav, Member of Legislative Assembly had filed an application before the Commissioner, Tirhut Range, Muzaffarpur on 17.4.2001 stating that during the election, the petitioner instead of doing his election duty had gone to his native place and terrorized the voters of his village. In the last election also he was found indulging in illegal activities, during election. The Commissioner, Tirhut Range directed the D.I.G., Champaran to look into the matter. On the basis of such complaint Awadhesh Prasad Singh was put under suspension in contemplation of a departmental proceeding. Punishment of dismissal from service was awarded by the Superintendent of Police, Motihari. The order awarding punishment was challenged by the petitioner by filing C.W.J.C. No. 7488 of 2004. The order of punishment passed by the disciplinary authority was quashed, with this finding that allegation has to be 3 established by the person, who has made it, but in the departmental proceeding except the allegation no evidence was brought in support of the allegation or the charges. The finding recorded by the Enquiry Officer was held to be perverse and the order of punishment held to be illegal. The writ-petitioner represented before the Superintendent of Police, Motihari for complying the direction passed in the writ application by allowing him to join his place of posting. His joining was accepted, but he was not paid his arrears of salary for the period 12.4.2004 to 17.10.2005. Finally by the District Order No. 977/05 contained in Memo No. 2006 dated 25.10.2005 it was directed that for the period 12.4.2004 to 17.10.2005 no arrears of salary would be paid to the petitioner and this period will be adjusted against extra- ordinary leave. The petitioner represented before the authorities against this illegal order, but the same not considered, as such writ application was filed for quashing of that order and for directing the respondents for making payment of arrears of salary for the period 12.4.2004 to 17.10.2005. Counsel for the petitioner submits that the 4 order impugned is completely in violation of Rule 97(2) of the Bihar Service Code. Rule 97(2) of Bihar Service Code reads as follows:- “ Where the authority mentioned is sub- rule (1), is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled, had he had been dismissed, removed or suspended as the case may be.” The order passed in the writ application by the High Court, whereby dismissal order of the petitioner was quashed, indicates that the order of dismissal was perverse. There was no evidence on record to prove the charges and with this finding the dismissal order was held to be completely illegal. This was a case in which petitioner was fully exonerated from the charges framed against him. The circumstances of this case were completely covered under the provisions under Rule 5 97(2) of the Bihar Service Code. However, the Superintendent of Police, Gopalganj completely overlooking this provision, has illegally passed the impugned order on this ground that during the period of dismissal till the date of reinstatement, petitioner did not discharge his duties. It goes without saying that a dismissed employee is not supposed to discharge his duties. The dismissal order was found to be completely illegal. In case the petitioner would not have been dismissed and remained in service, there was no reason for him, not to discharge his duty. The petitioner had not discharged his duties, due to dismissal and that was not intentional or optional. On account of an illegal order of dismissal, he was restrained from discharging his duties. In the facts and the circumstances of this case, I find that the impugned order i.e. Gopalganj District Order No. 977/05 contained in Memo No. 2006 dated 25.10.2005 is fit to be quashed, so far it relates to non- payment of salary to the deceased writ-petitioner. Now the writ-petitioner is dead the arrears of salary for which Awadhesh Prasad Singh was entitled will be paid to his widow i.e. substituted writ-petitioner Ranju Sinha. 6 Payments must be made within eight weeks from the date of production/communication of this order. This application is allowed. DKS/ (Mridula Mishra, J.)