Sarfuddin @ Md. Sarfuddin vs State Of Jharkhand
2023 Latest Caselaw 4467 Jhar

Jharkhand High Court

Sarfuddin @ Md. Sarfuddin vs State Of Jharkhand on 8 December, 2023

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

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          IN THE HIGH COURT OF JHARKHAND AT RANCHI

                          W.P. (S) No. 6351 of 2018

   Sarfuddin @ Md. Sarfuddin, aged about 49 years, son of Hafijullah, resident
   of Village: Seorai, P.O: Seorai, P.S: Gahmar, Dist: Gajipur, Uttar Pradesh
                                                       ...     ...      Petitioner
                       Versus
1. State of Jharkhand
2. The Director General-cum-Inspector General of Police, Jharkhand, Ranchi,
   Police Head Quarter, P.O. & P.S. Dhurwa, Dist. Ranchi, Jharkhand
3. The Deputy Inspector General of Police, Kolhan Range, P.O. & P.S.
   Chaibasa, Dist. Chaibasa, Jharkhand
4. The Superintendent of Police, West Singhbhum, P.O. & P.S. Chaibasa, Dist:
   Chaibasa, Jharkhand                     ...      ...          Respondents
                                    ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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 For the Petitioner                 : Mr. Diwakar Upadhyay, Advocate
 For the State                      : Mr. Shashank Shekhar, Advocate
                                    ---
 11/08.12.2023
1.    Heard the learned counsels for the parties.

2. This writ petition has been filed for the following reliefs: -

"a) For issuance of an appropriate writ(s)/order(s)/direction(s) in the nature of 'Certiorari' for quashing the order dated 23.05.2018, bearing Memo No. 1368/Ra. Kaa. (Ann-3) passed by the Superintendent of Police, West Singhbhum, Chaibasa (Resp No.4) by which the Respondent Authorities have forfeited the salary of the intervening period from the date of dismissal to date of reinstatement i.e. 02.03.2008 to 12.03.2018, on the ground of No work No pay;

And

b) For issuance of a writ (s)/order(s)/ direction(s) in nature 'Mandamus' commanding upon the Respondents to pay the salary for the period during which the Petitioner was illegal and arbitrary dismissed from the service with all consequential benefits;

And

c) For issuance of an appropriate writ(s)/order(s)/direction(s) in the nature of 'Mandamus' commanding the Respondents for considering the case of the Petitioner for the promotion in view of that batchmates of the petitioner were promoted, since 2016.

And/Or

d) Pass any other order(s)/writ(s)/direction(s) as your Lordship may deem fit & proper in the facts and circumstances of the case and in accordance with law."

3. After some argument, the learned counsel for the petitioner has submitted that he will confine this writ petition only to the extent it relates to the denial of back wages for the period from 02.03.2008 to 12.03.2018 and so far as the petitioner's claim for promotion is concerned, the right may be reserved with the petitioner to take appropriate steps as per law.

4. Considering the submissions made, the writ petition is confined to the prayer of the petitioner concerning back wages for the period from 02.03.2008 to 12.03.2018 and liberty is reserved with the petitioner to raise his grievance in connection with his promotion in accordance with law and as may be permissible under law.

5. It is not in dispute that the petitioner was appointed as Constable in the year 1990. On 06.02.2006, one criminal case was lodged under Sections 419, 420, 467, 468, 471, 472, 473 and 120(B) of the Indian Penal Code against the petitioner alleging making forged Home Guard Certificate as well as interpolation in the master chart of the candidates selected pursuant to Advertisement No. 01/08. The charges were framed against the petitioner in the criminal case and simultaneously show cause notice was issued and departmental proceeding was initiated vide letter dated 06.02.2006. Upon enquiry, the petitioner was found guilty and was dismissed from service on 31.01.2008. Against this, the petitioner filed appeal and the appeal was dismissed vide order dated 30.05.2009. Consequently, the petitioner challenged the order of dismissal in W.P. (S) No. 3506/2009 and during the pendency of the writ petition, the petitioner was acquitted in the criminal case vide judgment dated 30.05.2016. The aforesaid writ petition was disposed of vide order dated 05.10.2017 and the matter was remitted back to the respondents to consider the case of the petitioner on the quantum of punishment in accordance with law and to pass an appropriate order taking into consideration the doctrine of parity with that of the co-delinquent, namely, Major Rama Kant Prasad within a period of twelve weeks from the date of receipt/production of a copy of the order. The operative portion of the judgment passed in W.P. (S) No. 3506/2009 dated 05.10.2017 is quoted as under:

"8. From perusal of the findings of the Enquiry officer, I find that there is absolutely no difference in the charges levelled against the codelinquent, Major Rama Kant Prasad, so far as the imputation of proved misconduct is concerned. Therefore, in the fitness of things, similar treatment ought to have been extended to the petitioner, so far as infliction of punishment is concerned. In that view of the matter, the impugned order dated 31.01.2008 (Annexure-4), passed by the Superintendent of Police, West Singhbhum, Chaibasa (disciplinary authority) as well as the order dated 30.05.2009 (Annexure-7), passed by the Deputy Inspector General of Police, Kolhan Range, Chaibasa (appellate authority), pertaining to dismissal from service are hereby quashed and set aside and the matter is remitted to the respondents to consider the case of the petitioner on the quantum of punishment in accordance with law and pass appropriate order on the ground of doctrine of parity as that of his co-delinquent,

Major Rama Kant Prasad within a period of 12 weeks from the date of receipt/production of a copy of the order.

9. With the aforesaid direction, the writ petition stands allowed."

6. Thereafter, vide Memo No. 779 dated 13.03.2018 issued by the Superintendent of Police, Chaibasa, the petitioner was reinstated in service with immediate effect on the post of Constable and was inflicted the same punishment as that of the co-delinquent, namely, Major Rama Kant Prasad i.e. forfeiture of annual increment for two years which will be equivalent to three black marks and vide another order containing in Memo No. 1368 dated 23.05.2018, the salary for the intervening period was forfeited on the ground of 'No Work No Pay' and further that the said duration has been directed to be treated as extraordinary leave.

7. The petitioner has challenged the order dated 23.05.2018 in the present writ petition, whereby the arrears of salary has been denied to the petitioner.

8. The learned counsel for the petitioner has submitted that since there was a direction that there would be parity between the petitioner and the co- delinquent, namely, Major Rama Kant Prasad, therefore, the petitioner should be put at par with that of Major Rama Kant Prasad, inasmuch as, Major Rama Kant Prasad was throughout given the salary.

9. However, during the course of hearing, it is not in dispute that Major Rama Kant Prasad was working with the Department and so far as the petitioner is concerned, he remained out of service on account of his dismissal from service.

10. The learned counsel for the respondents has submitted that in the matter of grant of wages for the intervening period, the impugned order does not call for any interference, inasmuch as, the petitioner did not discharge any work during such period and the fact remains that the petitioner was not exonerated in the departmental proceeding, but was found guilty. It is submitted that so far as the punishment is concerned, the case was remanded for consideration on the ground of parity.

11. After hearing the learned counsels for the parties and considering the facts and circumstances of this case, this Court finds that the petitioner had faced a criminal case and was dismissed from service pursuant to the departmental proceeding. Subsequently, the petitioner was acquitted in the criminal case and in the meantime, the co-delinquent, namely, Major Rama Kant Prasad was awarded the punishment of forfeiture of annual increment for

two years which was equivalent to three black marks. In the writ petition being W.P. (S) No. 3506/2009 filed by the writ petitioner challenging his order of dismissal , the writ Court recorded a finding in paragraph No. 7 that the Court was of the considered view that there was no procedural irregularity in the conduction of the departmental proceeding from the date of its initiation till its culmination but the case of the petitioner needed interference on the ground that the petitioner was inflicted with punishment of dismissal from service whereas the co-delinquent Major Rama Kant Prasad was inflicted with a lesser punishment i.e. stoppage of increments for two years which was equivalent to three black marks and, therefore, the Court was of the view that the petitioner's case needed reconsideration on the ground of doctrine of parity.

12. This Court finds that the learned writ Court in the earlier round of litigation in W.P. (S) No. 3506/2009 had interfered only with the quantum of punishment and had directed the authorities to take fresh decision regarding the quantum of punishment and consequently, the authorities have given the same punishment to the petitioner as that of the co-delinquent Major Rama Kant Prasad.

13. So far as the back wages is concerned, the authorities have denied back wages to the petitioner on account of 'No Work No Pay'. The fact remains that the petitioner was not exonerated from the departmental proceeding. The respondents were within their right to consider the consequential relief to the petitioner arising out of fresh order of punishment i.e. stoppage of increments for two years which was equivalent to three black marks. The fact remains that on account of the order of dismissal the petitioner did not discharge any duty, but so far as the co-delinquent Major Rama Kant Prasad is concerned, he was admittedly working with the department. In such circumstances, the respondents were under a duty to give wages to Major Rama Kant Prasad. The claim made by the writ petitioner seeking parity with co-delinquent Major Rama Kant Prasad in the matter of wages for the intervening period during which the petitioner remained out of service is misconceived and hence rejected.

14. This Court is of the considered view that in the matter of back wages arising out of the subsequent order passed by the respondents, the respondents have exercised sound discretion to deny back wages to the petitioner on the principle of 'no work no pay' with a direction to treat the intervening period as

extraordinary leave. Accordingly, the impugned order denying back wages to the petitioner does not call for any interference under Article 226 of the Constitution of India.

15. Consequently, the present writ petition is dismissed.

16. Pending interlocutory application, if any, is also dismissed.

(Anubha Rawat Choudhary, J.) Mukul