Patna High Court
Suresh Mallick vs The State Of Bihar And Ors on 6 December, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.24397 of 2013
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Suresh Mallick Son of Late Bishundeo Mallick Resident of Village - P.O.
Manjhaul, P.S. Cheria Bariyarpur Dist Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Director General and Inspector General of Police, Bihar, Patna.
3. The D.I.G. of Police, Northern Zone, Military Police Muzaffarpur.
4. The Commandant B.M.P. 8 Begusarai.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ram Hriday Prasad, Advocate
For the Respondent/s : Mr. Subhash Pd. Singh, SC
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
ORAL JUDGMENT
Date : 06-12-2021
Heard learned counsels for respective parties.
In the instant petition, petitioner has prayed for the
following reliefs:-
"For issuance of appropriate
writ, order or direction to quash the order
of dismissal dated 20.08.2010 (Annexure-
1) passed by the Commandant, B.M.P. 8,
Begusarai and order of D.I.G. of Police,
Military Police, Norther Zone,
Muzaffarpur dated 14.01.2011 (Annexure-
2) and order of Director General of
Police, Bihar, Patna dated 01.02.20212
(Annexure-9) by which memorial has
been rejected and for grant of all
consequential benefits."
Petitioner was subjected to disciplinary proceedings
and it was concluded in imposition of penalty of dismissal on
20.08.2010. One of the contention raised in the present petition
Patna High Court CWJC No.24397 of 2013 dt.06-12-2021
is that reply to the second show cause notice has not been
considered by the disciplinary authority. In other words, there is
non-compliance of Rule 18 of Bihar Government Servants
(Classification, Control and Appeal) Rules, 2005 for short Rules,
2013.
Perusal of disciplinary authorities order dated
20.08.2010 there is not even reference to second show cause
notice dated 20.08.2010 read with petitioners reply dated
30.07.2010, thus, the petitioner has made out a prima facie case
so as to interfere with the disciplinary authority and appellate
authority order in non-compliance of Rule 18.
Accordingly, both the order of disciplinary authority
dated 20.08.2010 (Annexure-1) and rejection of appeal dated
14.01.2011 (Annexure-2) are set aside.
The disciplinary authority is hereby directed to
proceed from the defective stage and complete proceedings
within a period of two months from the date of receipt of this
order. Petitioner is entitled to subsistence allowance for the
reasons that if the dismissal order is set aside on technicality, in
that event, the petitioner would be treated as placed under
suspension in the light of the Hon'ble Apex Court decision in the
case of ECIL vs. B. Karunakaran reported in (1993) 4 SCC
Patna High Court CWJC No.24397 of 2013 dt.06-12-2021
727 and Chairman-cum-Managing Coal India Ltd. vs.
Ananta Saha and Ors. reported in (2011) 5 SCC 142.
Paragraphs 46 to 50 reads as under:-
"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 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.
Patna High Court CWJC No.24397 of 2013 dt.06-12-2021
48. In ECIL v. B. Karunakar, 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 .
50. In view of the above, the relief sought
by the delinquent that the appellants be
directed to pay the arrears of back wages
Patna High Court CWJC No.24397 of 2013 dt.06-12-2021
from the date of first termination order till
date, cannot be entertained and is hereby
rejected. In case the appellants choose to
hold a fresh enquiry, they are bound to
reinstate the delinquent and, in case, he is
put under suspension, he shall be entitled to
subsistence allowance till the conclusion of
the enquiry. All other entitlements would be
determined by the disciplinary authority as
explained hereinabove after the conclusion of
the enquiry. With these observations, the
appeal stands disposed of. No costs."
The disciplinary/appointing authority is hereby
directed to regulate intervening period from the date of dismissal
to the date of the reinstatement. The same shall be calculated and
disbursed in favour of the petitioner within a period of two
months from the date of receipt of this order.
Accordingly, writ petition stands disposed off.
(P. B. Bajanthri, J)
Vikash/-
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