Jharkhand High Court
Yamuna Ram vs Police on 23 July, 2013
Author: P.P. Bhatt
Bench: P.P.Bhatt
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 74 of 2012
Yamuna Ram .... .. Petitioner
Versus
1. The State of Jharkhand
2. Director General of Police, Jharkhand, Ranchi
3. Deputy Inspector General of Police, Hazaribagh
4. Superintendent of Police, Hazaribagh ...... Respondents
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CORAM: HON'BLE MR. JUSTICE P.P.BHATT
For the Petitioner : M/s. Pandey Niraj Rai, Adv.
For the respondents : J.C to A.A.G.
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11/23.07.2013Petitioner, by way of filing the present application under Order 47 Rule 1 of the Code of Civil Procedure read with Article 226 of the Constitution of India, has prayed for grant of review and thereby extend the benefit of back wages which has been declined by this Court while delivering the judgment and order dated 24.02.2012 passed in W.P. (S) No.5447 of 2006.
2. Heard learned counsel for the applicant as well as learned counsel appearing for the respondents. Perused the materials placed on record.
3. It was submitted by the learned counsel that the petitioner was not gainfully engaged during the period of dismissal and he was taken care by his brother in his native place. It was further submitted that as per law contained in fundamental Rule (FR) 54A (3), when the dismissal order was set aside on the merit of case then the intervening period of dismissal, including the period of suspension, till the date of reinstatement shall be treated as duty for all purpose, to which he would have been entitled, had he not been dismissed prior to such dismissal.
4. Learned counsel for the petitioner in support of his submission has relied upon the grounds which are enumerated in the review petition, more particularly the grounds B, C and E. These three grounds are based on relevant provision of law. Learned counsel for the petitioner in support of his submission has referred to and relied upon the Division Bench Judgment delivered in case of Nawal Kishore vs. State of Jharkhand and Ors. reported in 2013 (1) JCR 495. Learned counsel for the petitioner while referring paragraph 16 of the said judgment has also submitted that the Division Bench has taken note of the judgment delivered in the case of Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh and Ors. reported in AIR 1962 SC 1334 and in the case of Arjun Chaubey Vs. Union of India and Ors. reported in (1984) 2 SCC 578 and followed the ratio laid down in those cases. Learned counsel for the petitioner also relied upon the above referred two decisions and pointed out the relevant paragraphs i.e paragraph 11 and 8 respectively of the said decision.
5. Learned counsel appearing for the respondents-State Government raised preliminary objection about the maintainability of the review application mainly on two grounds. Firstly, that the review application is not filed within the stipulated time of thirty days and secondly, that if the petitioner is aggrieved by the part of the judgment and order passed by this Court with regard to rejection of prayer for back wages, he is required to prefer an appeal before the Division Bench of this Court.
6. As against this, learned counsel for the petitioner by referring the provision under Order 47 Rule 1 of C.P.C submitted that the review can be filed in a case where appeal has not been preferred. In the instant case, the applicant has not preferred any appeal. Likewise, the respondents-State Government till date has also not preferred any appeal being aggrieved and dissatisfied by the judgment and order passed by this Court and in view of the provision contained in Fundamental Rule (FR) 54A (3) and Rule 97 of Bihar Service Code there appears to be an apparent error on the face of record and, therefore, review application is maintainable. It is also submitted that in the instant case review can be preferred within reasonable time.
7. Considering the rival submissions and more particularly the provision as contained in Order 47 Rule 1 of the Code of Civil Procedure, it appears that looking to the grounds enumerated in the present application and ground No. B, C and E, the present review application appears to be maintainable. It also appears from the statement made by the learned counsel for the petitioner that no appeal has been preferred either by the petitioner or by the respondents-State Government till date, and, therefore, the present review application appears to be maintainable. It also appears that while delivering the judgment and order in W.P. (S) No.5447 of 2006, the relevant position of Fundamental Rule (FR) 54A (3) was not pointed out and like-wise Rule 97 of Bihar Service Code was also not highlighted by the learned counsel for the parties and, therefore, the said provision were not considered at the relevant time.
8. The Division Bench Judgment cited by the learned counsel for the petitioner delivered in case of Nawal Kishore vs. State of Jharkhand and Ors. reported in 2013 (1) JCR 495 appears to be relevant for deciding the present case. Paragraph 16 of the said judgment is reproduced herein below:-
"16. In the facts of the case, we are of the considered opinion that principle of 'no work no pay' cannot be applied in the fact situation where the petitioner being a Government Servant holding public post was denied the work of the post because of the act of the respondent and in view of Rule 97 (2) of Jharkhand Service Code, 2001 as well as in view of the judgment of Hon'ble Supreme Court delivered in the case of Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh and Ors. (Supra) and in the case of Arjun Chaubey Vs. Union of India and Ors. (Supra), we are of the considered opinion that the petitioner is not only entitled to the reinstatement but also to full back pay on the basis of the salary last drawn by him without taking into account the increments which he might have earned subsequent to that date but if there is pay revision then that pay revision will be allowed. The petitioner shall also be entitled to all other consequential benefits. The respondents are directed to reinstate the petitioner without any delay. The arrears of payment may be calculated and be paid to the petitioner within a period of three months from the date of receipt of a copy of this order."
9. Likewise the decision rendered in case of Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh and Ors. reported in AIR 1962 SC 1334 is also relevant and important for deciding the present case. Paragraph 11 of the said judgment is reproduced herein below:-
"(11) In our view, this contention is wholly misconceived.
Rule 54, as amended in 1953, stands as follows:-
"54. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where such competent authority holds 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 the full pay to which he would have been entitled, had he not been dismissed removed or suspended, as the case may be together with any allowances of which he was in receipt prior to his dismissal, removal or suspension.
(3) In other cases, the Govt. servant shall be given such proportion of such pay and allowances as such competent authority may prescribe.
Provided that the payment of allowances under clauses (2) and (3) shall be subject to all other conditions under which such allowances are admissible.
(4) In a case falling under cl. (2) the period of absence from duty shall be treated as the period spent on duty for all purposes.
(5) In a case falling under Cl. (3) the period of absence from duty shall not be treated as period spent on duty unless such competent authority specifically directs that it shall be so treated for any specified purposes." This rule has no application to cases like the present in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. This rule, undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a departmental appeal. But in this case the order of dismissal was declared invalid in a civil suit. The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of the adjudication of the civil courts is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.
10. Another decision rendered in case of Arjun Chaubey Vs. Union of India and Ors. reported in (1984) 2 SCC 578 is also important for deciding the present case. Paragraph 8 of the said judgment is reproduced herein below:-
"8. In the result, we allow the appeal and set aside the judgment of the High Court. The order dated June 15, 1982 whereby the appellant was dismissed from service is set aside. In order, however, to avoid needless complications in working out the mutual rights and obligations of the parties, we direct that the appellant, who is due to retire within about six months, shall be treated as having retired from service with effect from April 1, 1984. He shall be paid the arrears of his salary due until March 31, 1984 on the basis of the salary last drawn by him on June 15, 1982, without taking into account the increments which he might have earned subsequent to that date. The provident fund and gratuity shall also be paid to the appellant as calculated in accordance with the rules, as if no order of dismissal was passed against him. The appellant may not and shall not rejoin his duties. He will be treated as on leave between now and March 31, 1984."
The above referred two decisions have been considered by the Division Bench of this Court and the ratio laid down therein has been followed by the Division Bench of this Court and, therefore, in the light of the observations/directions given by the Division Bench of this Court, the petitioner shall also be entitled to back-wages alongwith other consequential benefits and accordingly, the respondent authorities are directed to pay the arrears of payment on the basis of last pay drawn by him. During the intervening period, if revision of pay has taken place the effect of revised pay scale shall also be paid to the petitioner.
11. In view of the above observations and directions, this review application stands allowed.
(P.P. Bhatt, J.)
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