Jharkhand High Court
State Of Bihar Th The Secretar vs Dr.Om Prakash Diwakar & Anr. on 5 July, 2017
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, B. B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND, RANCHI
L.P.A. No.789 of 2004
The State of Bihar through the Secretary, Department of
Animal & Husbandry, Govt. of Bihar, Patna ..... Appellant(s)
Versus
1.Dr. Om Prakash Diwakar
2.The Treasury Officer, Dumka Treasury, Dumka
3.The Treasury Officer, Vikash Bhawan, Patna.
.... Respondent(s)
PRESENT
THE HON'BLE MR. JUSTICE APARESH KUMAR SINGH
THE HON'BLE MR. JUSTICE B. B. MANGALMURTI
For the Appellant(s) : Mr. Ramit Satender, Advocate
Mr. Rajneesh Vardhan, Advocate
For the Respondent(s) : Mr. Abhay Prakash, Advocate.
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By Court : The State of Bihar is appellant being aggrieved by the judgment
dated 5th March, 2004 passed in CWJC No.7645 of 1999 (P) by the learned Single Judge wherein the learned Writ Court has held the writ petitioner entitled to the salary and allowances for the period of his dismissal from service till his reinstatement. The part of the impugned order dated 11th May, 1999, rejecting the aforesaid claim was accordingly quashed.
2. Briefly stated, the writ petitioner who was serving in the capacity of Regional Director, Animal Husbandry Department, Dumka, was placed under suspension on 14 th February, 1996 on the grounds of financial irregularity after being implicated in Godda (Town) P.S. Case No.29 of 1996, Dumka (Town) P.S. Case No.16 of 1996 registered under Sections 420, 467, 468, 471, 470, 474, 477(A), 409, 120B and 34 of the Indian Penal Code. He was dismissed from service by order dated 21 st February, 1996 thereafter on the ground that notice for initiation of departmental proceeding was not possible to be served upon him as he had been absconding in connection with the criminal cases and that process under Sections 82/83 of the Cr.P.C. had also been initiated. The dismissal of the writ petitioner from service inflicted by invoking the provisions under Article 311(2)(b) of the Constitution of India, however, was quashed by the Patna High Court in CWJC No.11470 of 1996 by judgment dated 12 th May, 1998 with the observation that the State Government is not precluded from initiating a departmental proceeding against the petitioner and passing order of suspension against him by way of interim 2 measure.
3. The Letters Patent Appeal bearing No.1101 of 1998 preferred by the State of Bihar against the judgment of the learned Single Judge was also dismissed vide order dated 19 th July, 1999 (Annexure-1 & 2 to the memo of appeal). The petitioner was reinstated on 1st July, 1998. By the same order i.e. 1 st July, 1998, he was placed under suspension and claim for arrears of salary from 21st February, 1996 to 30th July, 1998 i.e. period between the date of dismissal and date of rejoining of the service were, however, rejected by the Department of Animal Husbandry, Government of Bihar. It was in this background that the learned Single Judge in CWJC No.7645 of 1999 (P) was pleased to set aside part of the order dated 11 th May, 1999 so far as it related to non- payment of salary and allowances for the period of his dismissal.
4. The petitioner has reportedly retired from service under suspension. He has also been convicted in three R.C. Cases bearing R.C. 77(A) of 1996, R.C.33(A) of 1996, R.C.43(A) and R.C.44(A) of 1996 which arose from the criminal cases registered in the year 1996 in relation to Fodder scam cases. It is the case of the appellant -State of Bihar that reinstatement in service pursuant to quashing of the dismissal order by the learned Single Judge in CWJC No.11470 of 1996 did not entail full exoneration of the petitioner from the serious charges of financial irregularity. Therefore, setting aside of the dismissal order could not be perceived as entitlement to back-wages in an automatic manner.
5. The claim for back-wages is dependent upon the outcome of the disciplinary proceeding and is guided by the provisions of Rule 97 (2) and (3) of Bihar Service Code (now Jharkhand).
6. Learned counsel has relied upon the judgments passed by the learned Single Judge of the Patna High Court in CWJC No.8342 of 1997 dated 6th November, 1997, CWJC No.735 of 1998 dated 27 th February, 1998 and CWJC No.5599 of 1996 dated 20 th February, 1998. In those cases also, similar dismissal orders of employees of the same department involved in Fodder scam cases, were under- challenge.
7. Learned Single Judge of the Patna High Court while quashing the dismissal order on the same ground, however, clearly held that it could not mean that the writ petitioners were entitled to claim back-wages automatically. Liberty was also reserved to initiate proper disciplinary proceedings. Simply because the order passed 3 by the learned Single Judge in the case of the writ petitioner did not expressly say so, would not mean that the writ petitioner can claim back-wages for the said period. Therefore, the impugned order deserves to be interfered with.
8. Learned counsel for the appellant has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Coal India Ltd. Vs. Ananta Saha, reported in 2011(5) SCC 142 in Paragraphs 46 to 49.
9. Learned counsel for the writ petitioner -respondent herein has defended the impugned order. It is submitted that the dismissal of the writ petitioner was in haste as the sequence of dates of suspension and the order of dismissal would show. If the writ petitioner was not at fault and the order of dismissal was suffering from serious errors of law and being in violation of the constitutional provisions, there is no reason why the arrears of back-wages be denied to him. The Department of Animal Husbandry has, therefore, without application of mind wrongly rejected the claim of the back-wages. It was open for the Department to wait till the outcome of the disciplinary inquiry also in such circumstances.
10. We have considered the submissions of the parties and gone through the impugned judgment and other relevant materials available on records. The principles which govern the grant of back-wages have been succintly summed up in the judgment rendered by the Hon'ble Supreme Court in the case of Ananta Saha (supra) and are profitably quoted hereunder.
46. In the last, the delinquent has submitted that this Court must issue directions for his reinstatement and payment of arrears of salary till date. Shri Bandopadhyay, learned Senior Counsel appearing for the appellants, has vehemently opposed the relief sought by the delinquent contending that the delinquent has to be deprived of the back wages on the principle of "no work--no pay". The delinquent had been practising privately i.e. has been gainfully employed, thus, not entitled for back wages. Even if this Court comes to the conclusion that the High Court was justified in setting aside the order of punishment and a fresh enquiry is to be held now, the delinquent can simply be reinstated and put under suspension and would be entitled to subsistence allowance as per the service rules applicable in his case. The question of back wages shall be determined by the disciplinary authority in accordance with law only on the conclusion of the fresh enquiry.
47. It is a settled legal proposition that the result of the fresh enquiry in such a case relates back to the date of termination. The submissions advanced on behalf of the appellants that the result of the enquiry in such a fact situation relates back to the date of imposition of punishment, earlier stands fortified by a 4 large number of judgments of this Court and particularly in R. Thiruvirkolam v. Presiding Officer, Punjab Dairy Development Corpn. Ltd. v. Kala Singh and Graphite India Ltd. v. Durgapur Projects Ltd.
48. In ECIL v. B. Karunakar and Union of India v. Y.S. Sadhu, this Court held that where the punishment awarded by the disciplinary authority is quashed by the court/tribunal on some technical ground, the authority must be given an opportunity to conduct the enquiry afresh from the stage where it stood before the alleged vulnerability surfaced. However, for the purpose of holding fresh enquiry, the delinquent is to be reinstated and may be put under suspension. The question of back wages, etc. is determined by the disciplinary authority in accordance with law after the fresh enquiry is concluded.
49. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh, Akola Taluka Education Society v. Shivaji and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale.)
11. The principle relating to grant of back-wages upon reinstatement in cases of suspension or removal, dismissal are governed by the provisions of Rule 97 of the Service Code which are also quoted hereunder:-
97. (1) When a Government servant who has been dismissed, removed, or suspended, reinstated, the authority competent to order the reinstatement shall consider and make 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 the authority mentioned in sub-rule (1), is of 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 has he not been dismissed, removed or suspended, as the case may be.
(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe :
Provided that the payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowance are admissible.5
(4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.
(5) In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose :
Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.
12. It is apparent that the order of dismissal of the writ petitioner dated 21st February, 1996 was quashed by the learned Single Judge of the Patna High Court on the grounds that the exercise of such power under Article 311(2) proviso (b) of the Constitution of India was not sustainable. The learned court also allowed liberty to the employer to initiate fresh departmental proceeding and pass order of suspension against him by way of an interim measure. This itself indicates that setting aside of the order of dismissal did not, in any way, amount to full exoneration of the writ petitioner/employee of the charges of financial irregularity, especially in the background of his implication in the criminal cases for the aforesaid offences.
13. In that way, the writ petitioner could not claim back-wages as a matter of right. This power has to be exercised by the employer at the appropriate stage keeping into mind the principles enshrined in Rule 97 of the Service Code and the ratio rendered by the Hon'ble Supreme Court as quoted hereinabove.
14. We, however, refrain from observing anything further, so far as the merits of the claim is concerned.
15. In the light of the aforesaid discussions and for the reasons recorded, we are, therefore, of the view that the impugned judgment cannot be sustained in law. Accordingly, it is quashed.
16. The appeal stands allowed.
(Aparesh Kumar Singh,J.) (B. B. Mangalmurti, J.) High Court of Jharkhand at Ranchi Dated :5.7.2017 Sandeep/RP