IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10687 of 2006 BASISTH SINGH, SON OF LATE RAMAYAN SINGH, RESIDENT OF VILLAGE – KANWARA, P.S. JAGDISHPUR, DISTRICT – BHOJPUR. ………. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. DIRECTOR GENERAL OF POLICE CUM INSPECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. DEPUTY INSPECTOR GENERAL OF POLICE, BIHAR MILITARY, EASTERN ZONE, MUZZAFARPUR. 4. ADDITIONAL INSPECTOR GENERAL OF POLICE (VIGILANCE), PATNA. 5. COMMANDANT, B.M.P. -9, JAMALPUR. ……….. RESPONDENTS. FOR THE PETITIONER : - MR. R.N. MUKHOPADHYAY, ADVOCATE MR. SACHCHIDA NAND SINGH, ADVOCATE FOR THE STATE : - MR. MANOJ KUMAR SINHA, ACT TO GA -10. ----------- 02/ 11.02.2011 Heard counsel for the petitioner and counsel appearing for the State. Counter affidavit has been on behalf of Respondents 1 to 5. This is the second round of litigation by the petitioner for the identical relief. For the same relief earlier the petitioner has filed C.W.J.C. No. 1038 of 2000 challenging the order of punishment passed in the departmental proceeding and its confirmation by the appellate authority. C.W.J.C. No. 1038 of 2000 was allowed by order dated 01.02.2005. The orders of punishment passed by the disciplinary authority as well as the confirmation by the appellate authority were quashed. So far the punishment was concerned, it was 2 held that since the charge framed against the petitioner was not proved and there was no charge framed against the petitioner that he was negligent in maintaining the safety valve of his gun and due to negligence of the petitioner the incident took place, in which one of the constable got injured, no punishment could have been awarded to the petitioner. The Enquiring Officer had specifically indicated in his report that the charge framed against the petitioner regarding deliberate firing on the date of occurrence being not proved, no punishment could have been awarded. The petitioner had been dismissed by the disciplinary authority despite the fact that no charges regarding negligence had been proved. Petitioner’s plea is that traveling beyond the purview of the disciplinary proceeding severe punishment of dismissal from service has been awarded by the authority concerned. In C.W.J.C. No. 1038 of 2000 it had also been held that since, dismissal order is not sustainable as such for the period in between dismissal and reinstatement the concerned authority will decide whether petitioner is entitled for arrears of salary. For deciding this issue specific guideline had been given to 3 the concerned authority and that specific guideline was “whether during this period petitioner was gainfully engaged anywhere else”. On remand the Commandant, B.M.P. 9, Jamalpur passed order on 16.4.2005, which is the impugned order under challenge. The Respondent No. 5 again came to same conclusion that for the period of suspension i.e. period in between 2.9.1983 to 18.12.1984 and 4.7.1986 to 25.5.1987 nothing but for subsistence allowance petitioner is entitled and the period after the revocation of suspension order also no salary will be paid to the petitioner as the same will be treated as treated as extra-ordinary leave. Regarding arrears of salary for the period in between dismissal and reinstatement, it was held that since petitioner has not worked, he is not entitled for any arrears of salary. Counsel appearing for the petitioner has submitted that the order passed by Respondent No. 5, so far non-payment of salary for the period of suspension is concerned, is completely against the service rule. Admittedly the charge framed against the petitioner was not found to be proved. Once the charge 4 was not proved in the departmental proceeding, there was no reason for not allowing salary for the period of suspension to the petitioner. The finding recorded by Respondent No. 5 that this order is being passed in compliance of Rule 97(2) of the Bihar Service Code is also illegal. Rule 97(2) reads thus:- “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 not been dismissed, removed or suspended as the case may be.” In the counter affidavit filed on behalf of respondents it has been stated that it is not true that the petitioner was exonerated in totality from the charge framed against him. The Enquiring Officer had remarked that the petitioner did not check up the safety catch of the gun and due to such act of negligence the incident took place. In this background the petitioner, had been 5 dismissed from service, and there was nothing to show any violation of rules. This statement is completely wrong, considering the finding recorded in the earlier writ application i.e. C.W.J.C. No. 1038 of 2000. In the writ application it was held that no such charge was framed against the petitioner, as such this comment of the Enquiring Officer could not have been a ground for imposing any punishment against the petitioner. The respondent no. 5 has repeatedly committed same error, which he had earlier committed, while passing the order in the departmental proceeding. Regarding non-payment of salary for the period of dismissal and reinstatement it has been stated in para 17 of the counter affidavit that enquiry was conducted by the department by sending an Enquiry Officer to his home address to gather information about the fact as to whether the petitioner was engaged anywhere during the period of dismissal, till the date of his reinstatement. The Enquiry Officer submitted his report that petitioner was engaged in his domestic work like cultivation during this period, as such he was gainfully appointed during this period. In the impugned order there is no whisper about such enquiry 6 rather in the impugned order it has stated that since petitioner had not discharged his duties during this period, as such he is not entitled for any salary, following the principle of no work no pay. This finding was completely against the direction of the High Court in C.W.J.C. No. 1038 of 2000. So far domestic work like cultivation is concerned, it cannot be treated as being gainfully engaged at some other place and on that account finding recorded by respondent no. 5 is completely illegal and in violation of the specific direction of the High Court in C.W.J.C. No. 1038 of 2000. Considering all these facts, the order dated 16.4.2005 passed by the Commandant, B.M.P. 9, Jamalpur (Annexure-1) is quashed. The Director General of Police cum Inspector General of Police, Bihar, Patna and the Commandant, B.M.P. 9, Jamalpur are directed to make payment of salary minus subsistence allowance to the petitioner for the period of suspension i.e. period in between 2.9.1983 to 19.12.1984 and 4.7.1986 to 26.5.1987. The Respondents are directed to make payment of arrears of salary for the period in between the 7 dismissal and reinstatement of the petitioner. All payments must be made to the petitioner within twelve weeks from the date of production/communication of this order. This application is allowed. DKS/ (Mridula Mishra, J.)