IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.894 of 2009 1. The Bihar State Co-operative Marketing Union Ltd., Biscomaun Bhawan, West Gandhi Maidan, Patna-800001, through its Administrator. 2. The Administrator, Bihar State Co-operative Marketing Union Ltd., West Gandhi Maidan, Patan. 3. The Special Officer, Administration Bihar State Co-operative Union Ltd., West Gandhi Maidan, Patna. ------- Respondents/Appellants Versus 1. Ugranath Jha, S/o Sri Srikant Jha, Resident of Village + P.O. & P.S. – Babubarhi, Distt. Madhubani present residing at Bangali Tola, P.O. & P.S. Laheriyasarai, Distt. Darbhanga. ----------- Petitioner-Respondents ------ For the Appellants :- Mr. Rajesh Prasad Choudhary, Adv. For the Respondent :- Mr. Ratan Kumar Kumar ----------- 3/ 25.01.2010 I.A. No. 4203 of 2009 Having heard counsel for the appellants as also contesting respondent-writ petitioner and for the reasons mentioned in the application, the delay of four hundred and three days in filing of this appeal is condoned. 2 I.A. No. 4203/2009 accordingly stands disposed of. L.P.A. No. 894 of 2009 Having condoned the delay in filing of the appeal, this Court with the consent of counsel for both the parties has heard them on merits with a view to disposal of this appeal at the stage of admission itself. This appeal arises out of an order of the learned single Judge dated 21.2.2008 whereby and whereunder the writ application C.W.J.C. No. 410/2001 filed by the respondent-writ petitioner assailing an order of punishment of dismissal from service has been allowed. Before this Court would go into the questions involved in this appeal, it would be useful to refer to the relevant facts in brief. The respondent-writ petitioner who has still been undergoing the rigors of a departmental proceeding for past 22 years as on date, had initially entered in the service of Bihar State Co-operative Marketing Union Ltd. (hereinafter referred to as “BISCOMAUN”) on 6.12.1980 on daily wages whereafter his service were regularised by an order dated 28.1.1984. He however was placed under suspension by an order dated 03.09.1988 while holding the post of Assistant Depot Manager In- charge, Sale Centre Bibhutipur. Subsequently by an order dated 13.8.1988, a memo of charge for certain misconduct as also financial 3 irregularities was issued against him. The respondent-writ petitioner had submitted his written statement of defence on 15.12.1988, whereafter, on submission of the enquiry report dated 10.3.1989, he was dismissed from service by an order dated 21.8.1989 primarily for misappropriation of a sum of Rs. 383.96 Paise also for certain discrepancy in maintenance of the stock register of fertilizer and disobedience of certain orders of his controlling officer. The respondent-writ petitioner, thereafter, had assailed the said order of punishment dated 21.8.1989 in C.W.J.C. No. 878 of 1992 wherein this Court had quashed the aforementioned order of punishment by holding that the same was in violation of the principle of natural justice as also without undergoing the prescribed procedure for inflicting major punishment. As a consequence of the order of this Court dated 3.7.1997 in C.W.J.C. No. 878 of 1992, the petitioner was reinstated in service with effect from 26.7.1997 by an order dated 1.6.1998 and was again subjected to a show-cause notice dated 23.7.1998 by giving him a copy of the earlier enquiry report dated 10.3.1989 and when the respondent-writ petitioner had submitted his detailed explanation/comments to the said enquiry report on 14.6.1999, he was again subjected to an order of punishment by way of dismissal of his service by an order dated 19.8.2000 whereafter the respondent- 4 writ petitioner had filed the present writ application on 9.1.2001 which has been allowed by the impugned order dated 21.2.2008, operative portion whereof reads as follows:- . “............Accordingly the order impugned contained in Memo no. 561 dated 19.8.2000 issued under the signature of Administrator, Biscomaun is quashed. Since the petitioner has been subjected to a prolonged harassment right from 1988 he is directed to be reinstated with all consequential benefits. In case the respondents decide to proceed with the departmental enquiry for same charge they can start denovo. This application is allowed............” It has to be noted here itself that the BISCOMAUN has already partly complied the directions aforementioned impugned order by reinstating the respondent writ petitioner back in service vide an order dated 6.2.2009 with effect from 18.3.2008 and has also again proceeded for holding a departmental proceeding denovo for the earlier charges framed against him. In the said order only the payment of salary for the period the respondent-writ petitioner had remained out of service i.e. from 19.8.2000 to 18.3.2008 has been kept subject to the result of the present appeal, which in fact was actually filed on 14.7.2009. In view of this subsequent development, the only limited issue on which the counsel for the appellant has pressed this appeal is with 5 regard to the payment of salary and allowance for the period 21.8.1989 to 18.03.2008 which has become payable to the respondent-writ petitioner in terms of the impugned order allowing his reinstatement with consequential benefits. Counsel for the appellant in this regard has submitted that when this Court by an order dated 3.7.1997 in C.W.J.C. No. 878 of 1992 had quashed the earlier order of punishment dated 21.8.1989, the appellant BISCOMAUN and its authorities had decided to continue with the departmental proceeding on the same charges framed against the respondent-writ petitioner vide order dated 13.10.1988 and he was again found to be guilty even in the subsequent proceedings leading to his dismissal from service on 19.8.2000 which has been quashed again only on a purely technical ground with a liberty to proceed afresh the direction to pay salary and emoluments for the intervening period in which the Respondent writ petitioner had remained out of service would not be legally payable by way of consequential benefit upon his reinstatement. He has also submitted that when BISCOMAUN in compliance of the impugned order dated 21.2.2008 in C.W.J.C. No. 410 of 2001 had infact reinstated the respondent-writ petitioner back in the service of the BISCOMAUN by an order dated 6.2.2009 w.e.f. 18.3.2008 with a further decision to continue with the departmental proceeding and the result of such 6 departmental proceeding was yet to be arrived at, the respondent-writ petitioner cannot be held entitled for payment of full salary and emoluments for the period 21.3.1989 to 18.03.2008 at least till the final result of the pending departmental proceeding. Alternatively it has been submitted that the Respondent writ petitioner having not worked in the aforesaid period cannot be paid full salary by way of consequential benefit of reinstatement of his service in compliance of the impugned order. Learned counsel for the respondent-writ petitioner on the other hand has submitted that the respondent-writ petitioner had been made to suffer like anything in the last 22 years during which the authorities of the BISCOMAUN had utterly failed to prove the charges and as such, the respondent-writ petitioner can not be deprived of the full payment of salary and emoluments for the period 22.3.1989 to 18.3.2008 which becomes automatically payable on account of the direction of reinstatement of the writ petitioner with consequential benefits. In this context, he has also invited attention of this Court towards the earlier findings and directions recorded in the order dated 3.7.1997 in C.W.J.C. No. 878 of 1992 while quashing the earlier order of punishment dated 29.9.1992:- “5. I have considered the submissions for the counsel for the parties. I have also perused the enquiry report, 7 copy whereof has been marked Annexure 6 to the writ petition. From the report it appears that the Enquiry Officer noticed the aforesaid three inspection reports and thereafter directed the petitioner to appear. He thereafter called certain clarifications from the Range Officer and Sr. Range Officer. On the basis of the explanation given by the petitioner and the so-called clarification given by the officers, behind back of the petitioner, he recorded his findings on 10.3.89 and forwarded the same to the Administrator. Copies of the communication received from Range/Senior Range Officer were not furnished to the petitioner and he was not allowed any opportunity to explain the same. Since the order is based on materials not known to the petitioner I find substance in the contention of the petitioner that there has been violation of natural justice. Further, in my opinion, if the respondents wanted to impose major punishment they should have held a regular enquiry and given liberty to the petitioner to adduce his evidence. If they wanted to rely on any report or material which was obtained after the submission of the show cause and explanation orally furnished by the petitioner, in all fairness, copies should have been given to him so that he could explain them. In the above premises, the impugned order cannot be sustained. 6. In the result, this writ petition is allowed. The impugned order as contained in Annexure 1 is set aside. There will be no order as to cost. 8 7. Since the petitioner had approached this Court after two-and-a half years (he filed the writ petition on 29.1.92) he will not be entitled to salary for the intervening period between 21.8.89 and 21.1.92.” Counsel has further submitted that despite a clear finding recorded in the earlier order of this Court dated 3rd July, 1997 the Administrator of the BISCOMAUN had again dismissed the respondent-writ petitioner by an order dated 18.8.2000 without following the prescribed procedure by inflicting a major punishment, inasmuch as, all that was done by the authorities of the BISCOMAUN after the order of this Court dated 3rd July, 1997 was that the respondent-writ petitioner was only supplied with a copy of the enquiry report on 22.7.1998 and when the petitioner had filed its reply on 14.6.1999, the order of punishment was passed on 18.8.2000. It has been thus contended that when such order of punishment, being obviously illegal as also in teeth of the earlier direction of this court in the order dated 3.7.1997, could not be sustained and had been again quashed by the impugned order, the petitioner cannot be made to suffer in the matter of receiving payment of his backwages as a consequence of his being reinstated in service. In the opinion of this Court this aspect of the matter has in fact been gone into by the learned single Judge in the impugned order itself 9 wherein it has been correctly held that the authorities of the BISCOMAUN had failed to discharge the responsibility of holding a full fledged departmental enquiry in accordance with law before inflicting the respondent-writ petitioner with the punishment of dismissal from service. This Court must hold that such finding recorded by the Single Judge is not only in conformity with the rules requiring inflicting of major punishment only after holding of a full fledged departmental enquiry but also in violation of the earlier order of this Court dated 3rd July, 1997 wherein it was clearly indicated that if the authority of the BISCOMAUN wanted to impose major punishment, they were required to hold a regular enquiry and also give opportunity to the respondent/writ petitioner to adduce his evidence in his defence. Admittedly, such procedure was not followed even in the second round and therefore, this Court must concur also with the findings of the learned single Judge in the impugned order that the respondent-writ petitioner has been unnecessarily subjected to repeated harassment. Such woes of the Respondent writ petitioner even now have not come to an end, inasmuch as, the appellant BISCOMAUN has again decided to initiate departmental proceeding denovo on the same charge in view of liberty given by the learned single Judge in the impugned order. 10 In that view of the matter, it would be wholly unfair on the part of appellant BISCOMAUN to deprive the respondent-writ petitioner altogether from the consequenties benefits upon his reinstatement by way of payment of salary and emoluments for the period the petitioner was kept forcibly out of service. It is however clear from the order of punishment dated 18.8.2000 itself that in terms of the earlier order of this Court dated 3.7.1997 in C.W.J.C. No. 878 of 1992, the respondent- writ petitioner was reinstated in service by an order dated 1.6.1998 by accepting his joining with effect from 26.7.1997 whereafter he was also paid his salary and emoluments from 26.7.1997 upto the date of punishment i.e. 19.8.2000. It is thus clear that the respondent-writ petitioner whose claim for payment of salary for the period 21.8.1989 to 21.1.1992 was specifically rejected by this Court in the order dated 3.7.1997 in C.W.J.C. No. 878/1992 would therefore be entitled for payment of salary for the period 22.1.1992 to 18.3.2008 in which the respondent-writ petitioner was kept out of service, in which he had been paid his salary only for the period of 26.7.1997 to 19.8.2000 pursuant to his reinstatement vide order dated 1.6.1998 till his dismissal again vide order dated 19.8.2000. At the same time, this Court cannot ignore the fact that the respondents could not have taken any work from the Respondent writ 11 petitioner, inasmuch as, he was/is facing some serious allegation pertaining to gross misconduct as also financial irregularities. Thus, loss of faith of the BISCOMAUN and its authorities in the respondent- writ petition during the pendency of the two writ petitions and the resultant action of not taking work from the petitioner till conclusion of enquiry cannot be held to be arbitrary. The concept of reinstatement with full back wages and/or other benefits definitely connotes the recording of satisfaction by the employer that the delinquent had been fully exonerated from the charges. Here the respondent-writ petitioner cannot claim to have been fully exonerated as a result of the impugned order of the learned single Judge who herself has gone to give liberty to initiate a departmental proceeding against the respondent-writ petitioner denovo. Thus where an employee sought to be reinstated after setting aside order of punishment is to be still given a clean chit by way of exoneration from charges he cannot be paid full salary for the period he had remained out of service and in such cases the Courts have invariably adopted the principle of a lump sum payment or restricting the payment of salary to certain quantified amount. Reference in this connection may be made to the judgment of the Apex Court in the case of State of Maharashtra & Ors. Vs. Reshma Hamesh Meher & Anr. reported in 2008(8)SCC 664 wherein it was 12 laid down that once the order of termination of service of an employee is set aside, ordinarily the relief of reinstatement is available to him but the entitlement of an employee to get reinstated does not also necessarily mean payment of full or partial back wages, which is independent of reinstatement and in that context it was held that:- “..............While dealing with the prayer of back wages, factual scenario, equity and good conscience, a number of other factors, like the manner of selection, nature of appointment, the period for which the employee has worked with the employer etc., have to be kept in view. All these factors and circumstances are illustrative and no precise or abstract formula can be laid down as to under what circumstances full or partial back wages should be awarded. It depends upon the facts and circumstances of each case.............” Yet again in almost a similar case, as in hand, the Apex Court in the case of Cantonment Executive Officer & Anr. Vs. Vijay D. Wani & Ors. reported in 2008(12)SCC 230 had again considered the issue of payment of backwages upon reinstatement wherein it was held that :- “............So far as grant of back wages is concerned, it depends upon case to case. But in the present case as the respondent was found guilty by the Cantonment Board but the order of Cantonment Board was set aside because it suffered from bias it will be unfair to deny 50% back wages to the respondent (herein)............." 13 In the present case also as has been noted above, the writ petitioner-respondent had been reinstated in service after the order of this Court dated 3.7.1997 in C.W.J.C. No. 878 of 1992 and had drawn full salary for the period he had continued in service till passing of the impugned order dismissing him from service. Thus, when the learned single Judge has set aside the order of punishment on the ground the departmental proceeding being not conducted despite an earlier observation to this effect in the order of this Court dated 3.7.1997 in C.W.J.C. No. 878 of 1992, the petitioner cannot be denied payment of his entire salary for the period he had remained out of service 20.8.2000 to 21.2.2008 on account of the order of punishment. Similarly now when the petitioner stands reinstated and a departmental proceeding has been started denovo it would be also unfair to keep the issue of payment of salary of the earlier period i.e. 22.1.1992 to 19.8.2000 . Thus considering the facts of this case as also keeping in view the ratio of the Apex Court in the case of Reshma Hamesh Meher (supra) and Vijay D. Wani (supra), this Court, therefore, would hold the respondent-writ petitioner to be entitled for payment of his salary and emoluments to the tune of 60% of his salary for the period 22.1.1992 to 18.3.2008. The petitioner who has been paid full salary 14 for the integerum period 26.7.1997 to 18.8.2000 as also is receiving payment of salary with effect from 19.3.2008 upon his reinstatement will not be entitled for payment of any amount of salary for the period 21.8.1989 to 21.1.1992 in view of the earlier order of this Court dated 3.7.1997 in C.W.J.C. No. 878 of 1992. Such payment @ 60% to the respondent writ petitioner for the period 22.1.1992 to 18.3.2008, after making necessary adjustment of the any payment of salary already made to him by the appellant BISCOMAUN in the intervening period of 22.1.1992 to 18.3.2008, must be made to him within a period of three months from today. Before parting with, this Court must record that the appellant BISCOMAUN and its authorities will have no unbridled liberty to keep the Damocles’ sword hanging on the head of the respondent-writ petitioner for an indefinite period in the name of continuing with the departmental proceeding denovo and as such, this Court would also direct that such departmental proceeding already initiated against the Respondent writ petitioner by the order of BISCOMAUN dated 6.2.2009 must be concluded within a period of nine months from the date of receipt/production of a copy of this order strictly by complying the observations and directions in the orders of this Court dated 3.7.1997 in C.W.J.C. No. 878 of 1992 read with the impugned order 15 dated 21.2.2008 in C.W.J.C. No. 410 of 2001. With the aforementioned modification in the impugned order, this appeal is disposed of. There would be however no order as to costs. (Dipak Misra, CJ.) (Mihir Kumar Jha, J.) Rsh