Jharkhand High Court
Awadh Singh vs Home Department on 13 November, 2017
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.903 of 2017
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Awadh Singh, son of late Chandeshwar Singh, resident of village Sakrowdha, P.O.
Sakrowdha, P.S. Nalanda, District Nalanda (Bihar).
... ... Petitioner
VERSUS
1. The State of Jharkhand through Secretary, Home Department, Govt. of Jharkhand,
Ranchi.
2. The Director General of Police, Ranchi.
3. The Deputy Inspector of General of Police, North Chhotanagpur, Hazaribagh.
4. The Superintendent of Police, Koderma.
5. The Officer-in-Charge of Marcachho Police Station, Koderma.
... ... Respondents.
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For Petitioner : Mr. Rajesh Lala, Advocate
Mr. Rakesh Kumar Gupta, Advocate
For Respondent-State : Ms. Aparajita Bhardwaj, JC to AG
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
07/ 13.11.2017Heard learned counsel for the petitioner and learned counsel for the respondents.
2. The petitioner has approached this Court with a prayer for quashing part of the order No. 991/2016, as contained in the memo No. 1316 dated 02.07.2016 (Annexure-13) issued by the S.P. Koderma, whereby the claim of the petitioner for full back wages of suspension period and arrears of back wages for the period in between the date of dismissal on 04.04.2011 of the petitioner till his joining on 01.07.2016 has been rejected on the ground of "No Work No Pay".
3. The factual exposition as has been delineated in the writ petition is that when the petitioner was posted as Police Hawaldar at Markachho Police Station, Koderma, an FIR was lodged against the petitioner being Markacho P.S. Case No. 51 of 2010 corresponding to G.R. Case No. 406 of 2010 under Section 377 IPC, for an allegation of commission of unnatural offence. The petitioner was immediately taken into custody on 05.06.2010 for the alleged offences. It is the further case of the petitioner that he was put under suspension vide order dated 05.06.2010 on the ground of offence under 2 Section 377 IPC. Thereafter, a departmental proceeding was also initiated against the petitioner by issuance of charge-sheet dated 25.06.2010 on the same ground. The petitioner was proceeded departmentally as well as in criminal proceeding. In the criminal proceeding, the petitioner was acquitted on 13.12.2012 but in the departmental proceeding, the petitioner was found guilty of the charges and he was dismissed from service on 04.04.2011 and the same was also affirmed by the higher authorities in the Appeal as well as in Revision. The said order of dismissal was subject matter of challenge in W.P.(S). No. 5765 of 2013 and this Hon'ble Court vide order dated 18.04.2016, quashed the order of dismissal with an observation to reinstate the petitioner in service forthwith. It was specifically observed that the question of back wages was left open for consideration before the respondent-authorities. After acquittal from the criminal charges and after quashment of the order of dismissal on 18.04.2016, the petitioner moved before the respondent- authorities vide Annexure-12, mentioning therein that in view of the quashment of the order of dismissal by the Hon'ble Court, the petitioner has been reinstated and as such, he has given his joining. Thereafter, in view of the representation of the petitioner, the respondents after due consideration, issued an order dated 02.07.2016, which is the subject matter of challenge before this Court.
4. Mr. Rajesh Lala assisted by Mr. Rakesh Kumar Gupta, learned counsel appearing for the petitioner strenuously urges that the petitioner is entitled for the back wages from the date of dismissal to the date of reinstatement. To buttress his arguments Mr. Lala places heavy reliance on the following judgments and argues that in view of the ratio decided in the following judgments, the petitioner is fully entitled for back wages from the date of dismissal till the date of reinstatement.
(i) Union of India & Ors. Vrs. Jaipal Singh [(2004) 1 SCC 121];
(ii) Commissioner, Karnataka Housing Board Vrs. C. Muddaiah [(2007) 7 SCC 689];
(iii) Arun Kumar Singh Vs. State of Jharkhand & Ors. [2016(4) JBCJ 599 (HC)]; and
(iv) Basudeo Prasad Yadava Vs. State of Jharkhand & Ors. [2017(3) JLJR 1] Mr. Rajesh Lala draws the attention of the Court towards Rules 97(2) and 99 of the Jharkhand Service Code and argues that in view of Rule 3 97(2), the petitioner is entitled for back wages and as such, the impugned order dated 02.07.2016 has been passed illegally, arbitrarily and against the provisions of law and is fit to be quashed and set aside with a direction to the respondents to pass an order for payment of back wages from the date of dismissal till the date of reinstatement.
5. Per contra counter-affidavit has been filed. Ms. Aparajita Bhardwaj, learned JC to AG appearing for the respondents vehemently opposes the contention of the learned counsel for the petitioner. Learned counsel for the respondents empathetically argued that the judgments cited by the learned counsel for the petitioner is not at all applicable in the instant case. Learned counsel further argued that there are two instances in which the order of acquittal can be taken into consideration for grant of back wages. Learned counsel further argued that in case where the complaint has been lodged by a 3rd party, in that case the plea of the petitioner that he was stopped from work and as such, they are liable for the back wages is not tenable. It is only in the case where the Department has lodged complaint against the petitioner then in that case if there is an acquittal, the petitioner is entitled for the back wages. Learned counsel further argued that the judgments cited by the learned counsel for the petitioner is not distinguishable on the ground that in the impugned order it has been clearly mentioned that petitioner is not entitled for any back wages other than substantial allowance, on the ground of 'No Work No Pay'. Admittedly, the petitioner did not work in the said period and it was not at the instance of the respondents but the petitioner was convicted on the basis of a complaint lodged by a 3rd party. Learned counsel further argued that petitioner is entitled for payment only from the date of his reinstatement which has rightly been done by the respondents and as such, order dated 02.07.2016 is fully justified.
6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no interference is warranted in the instant writ petition. The impugned order is fully justified on the following grounds:-
i) The petitioner is entitled for payment of salary only from the date of his reinstatement. The petitioner was reinstated on 01.07.2016 and as such, he was not liable to get the back wages.
ii) After quashment of the order of dismissal, the Hon'ble High Court in its order dated 18.04.2016, directed the respondents to take a decision regarding back wages. Pursuant to that, the respondents have taken a 4 decision vide order dated 02.07.2016 in accordance with law, which is fully justified.
iii) In the instant case, the acquittal was not honorable rather the petitioner was acquitted on the ground of benefit of doubt. The Hon'ble Apex Court in case of Deputy Inspector General of Police and Anr.
Vs. S. Samuthiram, reported in (2013) 1 SCC 598 has held as under:-
"26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient."
iv) In absence of certificate regarding petitioner being 'not in a gainful employment', the impugned order is fully justified.
7. As cumulative effect of the aforesaid rules, guidelines, judicial pronouncements, no interference is warranted in the instant writ petition.
8. Resultantly, the writ petition merits dismissal and is hereby dismissed.
(Dr. S.N. Pathak, J.) kunal/-