Jharkhand High Court

Binita Kumari vs State Of Jharkhand on 17 June, 2025

Author: Deepak Roshan

Bench: Deepak Roshan

                                                                      2025:JHHC:16452

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 1966 of 2020
                                       .........

Binita Kumari, aged about 47 years, daughter of Shri Yugal Ram Sahu, Resident of Arogra, P.O.-Argora, P.S. Argora, District-Ranchi, Jharkhand. ..... Petitioner Versus

1. State of Jharkhand

2. Director General-cum-Inspector General of Police, Jharkhand, P.O. Dhurwa, P.S. Jagannathpur, District- Ranchi/Jharkhand.

3. Dy. Inspector General of Police, Jharkhand Armed Police, Nepal House, P.O. Doranda, P.S. Doranda, District- Ranchi/Jharkhand.

4. The Commandant, Jharkhand Armed Police-10 Mahila Battalion, Hotwar, P.O. Hotwar, P.S. Sadar, District-

           Ranchi/Jharkhand.                ..... Respondents
                                                   .........


 CORAM:            HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                       .......
          For the Petitioner                       : Mr. Saurav Arun, Adv
          For the Res.-State                       : Mr. Abhinay Kumar, A.C. to G.A.-I
                                                   .........
C.A.V. ON 05/05/2025                               PRONOUNCED ON: 17/06/2025

           Heard learned counsel for the parties.

2. In the instant writ application, the petitioner prays for

the following reliefs;

a) for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of madamus commanding upon the respondents to consider the case of the petitioner for payment of her salary for the intervening period 31.10.2009 till the date of reinstatement i.e. 18.5.2019 as it has been done in similarly situated case passed in W.P.(S) No.1163/2016 where the Hon'ble Court has held that "It was the respondents who prevented her to work on the ground which had no legs to stand" and also in view of the Judgment passed by the Hon'ble Apex Court in K.V. Jankiraman case also held the same view due to latches on the part of the respondents the petitioner should not suffer as She is willing to work and She was forced not to work hence entitled for the salary of the intervening period, AND;

b) for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of madamus commanding upon the respondents to regularize the services of the petitioner during which She was out of the service and regularizing the same, pay the same pay scale as the person appointed

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alongwith the petitioner are getting to the tune of Rs.52220/- whereas the petitioner is getting Rs.34,110/- only as the service of the petitioner is being treated as a fresh appointment which is totally against the law as She has been appointed along with other similarly situated persons way back in the year 2005 i.e. on 27.6.2005;

AND

c) for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of madamus commanding upon the respondents to pay the arrear of salary for the intervening period as well as regularize the services of the petitioner during which She was out of service as the dismissal order has been set aside by this Hon'ble Court and give the pay scale what her batch mate is getting and not to treat as a fresh appointee otherwise it will fall under the category of "Double jeopardy";

AND

d) for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of madamus commanding upon the respondents to pay the arrear of salary for the intervening period as the case of the petitioner does not fall under the category of "no work no pay" as there is no latches on the part of the petitioner and the Hon'bleCourt has held in WP(S) No.2654/2014 dated 13.2.2019 "Penalty of dismissal for unauthorized duty for the period of 15 days is disproportionate to the charges framed and the same was also not proved in the Departmental proceeding who held as the dismissal is illegal and the matter was concluded and also held dismissal for trivial charges is bad and accordingly, directed to reinstate her forthwith, which clearly stipulate latches on the part of State Respondents, hence "no work no pay' is not applicable in the case of the petitioner;

AND

e) for issuance of a writ(s)/order (s)/direction (s) or a writ in the nature of madamus commanding upon the respondents not to discriminate with the petitioner with that of the petitioner of writ petition No. W.P.(S) 1163/2016 who has already been provided the arrear of salary for the intervening period;

AND/OR Pass such other order(s)/direction(s) as Your Lordships may deem fit and proper under the facts and circumstances of this case for doing conscionable justice to the petitioner.

3. The brief facts of the case as per the pleadings

are that the Petitioner was appointed as constable on

27.06.2005. She applied for maternity leave for 135 days,

and the same was sanctioned. However, she overstayed the

leave by 15 days due to medical reasons, for which she was

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suspended on 03.07.2009, and on 04.08.2009, a charge

sheet was served upon her for unauthorized absence. On

11.10.2009, the Inquiry Officer exonerated the Petitioner,

but the Disciplinary Authority, without issuing second show

cause and without differing from the finding of the Inquiry

Officer, dismissed her from the service on 31.10.2009,

which was challenged by her in W.P.(S) No. 6737 of 2011,

and the dismissal order as well as the appellate order were

quashed and the matter was remitted to disciplinary

authority from the stage of second show cause and to give

reasons for differing with the finding of the Inquiry Officer.

Thereafter, the Petitioner was dismissed again on

15.03.2014 against which she filed writ petition being

W.P.(S) No. 2654 of 2014, which was also allowed vide order

dated 13.02.2019 and she was reinstated on 08.05.2019.

After reinstatement, the Petitioner had made several

representations for the arrears of her salary; but the same

has been rejected by the concerned authority; as a result of

which she filed the present writ petition.

4. Learned Counsel for the Petitioner submits that

in compliance of the order passed by this Court, the

Petitioner has been reinstated in the service with effect from

8.5.2019 and the said order of reinstatement clearly

indicated the word "Punnah" (means "again") reinstated.

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However, the Respondent Authorities though issued the

letter of reinstatement but for the purpose of payment of

salary for the intervening period, as well as the payment of

pay scale as that of her batch mate, treated the service of

the Petitioner as "break in service"; which resulted that she

cannot claim the legal entitlements, hence the action of the

respondent authorities falls under the definition of double

jeopardy.

He further submits that because of the latches on

part of the respondent authorities, the Petitioner has not

been given annual increment since, 2009 till her

reinstatement; as such, the Petitioner should not suffer for

the high-handedness of respondent authorities. He lastly

submits that the batch mates of the Petitioner, who were

appointed along with her, are getting higher pay than the

Petitioner which is arbitrary; as such, the present writ

application deserves to be allowed.

5. Learned Counsel for the Respondents submits

that in compliance of the order of this Court the Petitioner

was reinstated on the vacant post of constable with effect

from 08.05.2019. He further submits that the

Commandant, JAP-10 Hotwar vide Force Order No.

1204/2019 dated 20.07.2019 adjusted the intervening

period of 9 years 9 months and 17 days in "Extra Ordinary

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Leave" on the principle of "No work no pay".

He further submits that the Petitioner cannot

equate herself with others who were appointed along with

her for the sole reason that the others have earned the

increments by continuing in service and the Petitioner was

out of service. Further, since the Petitioner has not been

allowed any back wages; as such, she has not earned any

increment also and that is the reason for difference in

salary with others.

6. Having heard learned counsel for the parties and

after going through the documents annexed with the

respective affidavits it appears that the Petitioner was

dismissed from service for overstaying 15 days only on her

leave. The impugned order of dismissal was initially assailed

by her in W.P.(S) No. 6737 of 2011, and vide order passed by

this Court in the aforesaid writ application; the dismissal

order as well as the appellate order were quashed and the

matter was remitted to disciplinary authority from the stage

of second show cause and to give reasons for differing with

the finding of the Inquiry Officer.

Thereafter, the Petitioner was dismissed again on

15.03.2014 against which she filed writ petition being

W.P.(S) No. 2654 of 2014, which was also allowed vide order

dated 13.02.2019; whereby the order of dismissal was

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quashed and the Petitioner was directed to be reinstated

and finally she was reinstated on 08.05.2019.

7. The core grievance of the Petitioner is that she is

not being paid the arrears of her salary for the intervening

period and her representation for regularization of her

service for the intervening period has been rejected by order

dated 20.07.2019. Supporting the rejection order learned

counsel for the Respondents contended that the period of 9

years 9 months and 17 days has been adjusted by the

Commandant, JAP-10 Hotwar as "Extra Ordinary Leave"

and the Petitioner is not entitled for any back wages on the

principle of "no work no pay".

8. This Court does not agree with the stand of the

respondents, inasmuch as, initially the order of dismissal

was quashed by this Court vide order passed in W.P.(S) No.

6737 of 2011 and the matter was remitted to disciplinary

authority from the stage of second show cause and to give

reasons for differing with the finding of the Inquiry Officer.

Thereafter, the Petitioner was dismissed again on

15.03.2014 against which she filed another writ petition

being W.P.(S) No. 2654 of 2014, which was also allowed vide

order dated 13.02.2019; whereby the order of dismissal was

quashed as being disproportionate and passed in breach of

natural justice; and the respondents were directed to

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reinstate the Petitioner.

The jurisprudence on the point of benefits for the

intervening period is very clear that when an employee is

reinstated after wrongful dismissal; he/she is reinstated

with all the benefits including pay, leave etc. as on

reinstatement the employee is entitled for all the privileges

of which he/she was divested by order of dismissal. The

employer cannot unilaterally decide to adjust the period of

wrongful dismissal as "Extraordinary Leave".

In this regard it would be profitable to refer to

Rule 236 and 180 of the Jharkhand Service Code which

talks about extra ordinary leave. The relevant part is quoted

herein below:

"E- EXTRAORDINARY LEAVE

236. Extraordinary leave may be granted to a government servant in special circumstances: -

(i) When no other leave is admissible under these rules;

(ii) When, other leave being admissible, the Government servant applies in writing for the grant of extra ordinary leave ".

"180. (a) In special circumstances and when no other leave is under these rules admissible, extraordinary leave may be granted. Such leave is not debited against the leave account. No leave-salary is admissible during such leave.

(b) The authority empowered to sanction leave may grant extra-

ordinary leave in combination with, or in continuation of, any leave that is admissible, and may commute retrospectively period of absence without leave into extra ordinary leave. Note 1.- The State Government for special reasons dispense with the condition that extraordinary leave may be granted only when no other leave is by rule admissible, provided that a government servant cannot be compelled to take extra ordinary leave when leave with allowances is admissible to him.

Note 2.- The power of commuting period of absence without leave into extraordinary leave under sub-rule (b) is absolute; in other words, such commutation is permissible even when other leave was admissible to Government servant at the time of his absence without leave commenced."

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9. From the above-mentioned Rules, it is clear that

for availing extra ordinary leave the government servant has

to apply in writing and granting suo-motu extra ordinary

leave is not permissible. Further, proviso appended to Note

1 of Rule 180 clearly stipulates that a government servant

cannot be compelled to take extra ordinary leave when leave

with allowance is admissible.

As discussed above, when the Petitioner was

reinstated in compliance of the order of this Court passed in

W.P.(S) No. 2654 of 2014 wherein the order of dismissal was

quashed; as such, it was the duty of concerned respondent

to reinstate her with all the benefits/privileges of a regular

employee, inasmuch as, the Petitioner became eligible for all

the benefits including leave, increments etc. after

reinstatement what the other employees have either availed

or availing.

It is also not brought on record by the

Respondents that the Petitioner ever applied for the grant of

extra ordinary leave; thus, the Respondents were negligent

on their part regarding reinstating the Petitioner but

without other benefits.

The Respondent cannot take advantage of their

own wrong of wrongfully dismissing the Petitioner from

service for overstaying 15 days only and forced the

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Petitioner to knock the door twice and when in the 2 nd

round of litigation also; the Respondents lost, they prefer

appeal which was also dismissed; as such, delaying the

reinstatement for their own action and depriving the

Petitioner from the just benefits and consequently adjusting

such period (From the date of dismissal till the date of

reinstatement) as period of extraordinary leave; is without

the authority of law.

10. Now coming to the second limb of argument of

the Respondents that the Petitioner is not entitled for the

arrears of salary on the basis of no work no pay principle;

this contention is not acceptable to the court as the

principle of no work is applicable when the employee is at

fault. However, in the case at hand the Petitioner was

dismissed for trivial charge of over-staying on her

sanctioned leave for only 15 days which was initially

quashed on the ground of procedural irregularity; but

again, the order of dismissal was passed by the

Respondents.

Subsequently, the Petitioner again moved before

this Court and after hearing the parties this Court again

quashed the order of dismissal vide order dated 13.02.2019

in W.P.(S) No. 2654 of 2014 on the ground that dismissal

from service on the ground of unauthorized absence from

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duty for about 15 days is disproportionate that too when

employee has furnished a plausible explanation for

absence. The relevant paragraph is quoted herein below:

"8. Evidently, not only the penalty of dismissal from service on the ground of unauthorized absence from duty for about 15 days is disproportionate to the charge framed which, of course, was not found proved, the penalty order dated 15.03.2014 has been passed in breach of the rules of natural justice. Normally, when an order suffers infirmity on the ground of breach of the rules of natural justice the matter is remitted back to the authority, however, in view of the facts disclosed in the present proceeding, I am of the opinion that the penalty of dismissal from service is illegal and while so, the matter must be concluded here itself. The maximum penalty, that is, dismissal from service which is akin to death penalty for an employee must not be inflicted so casually as has been done in this case. In the posture of maintaining discipline in the force, one cannot be terminated from service on trivial charges and, that too, when the explanation offered by the delinquent employee is a plausible reason for absence from duty."

11. From the above order it is clear that when it has

already been held by a Co-ordinate bench of this Court that

the order of dismissal passed by the disciplinary authority

as well as the appellate authority was not proper and the

dismissal was at the behest of respondent authorities and

that the ground of dismissal was very fragile then there

arises no occasion to withhold the salary of the Petitioner

for the period she was out of service, inasmuch as, for the

sad absence the Petitioner was not at fault; as such, the

principle of "no work no pay" will not be applicable in the

present case.

At the cost of repetition, the Respondents cannot