Sakuntala Devi vs The State Of Bihar
2022 Latest Caselaw 2170 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.2721 of 2021
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Sakuntala Devi, W/o Nand Kishor Sah, R/o Village Pachlakh Tole Lalapur, P.S. Parsa, Distt. Saran.

... ... Petitioner/s Versus

1. The State of Bihar Bihar.

2. The Chief Secretary, State of Bihar, Patna.

3. The Principle Secretary, General Administrative Department, Bihar, Patna.

4. The Director, Mass Education, Education Department, Bihar, Patna.

5. The Director (Janshiksha) Education Department, Bihar, Patna.

6. The District Magistrate, Saran.

7. The District Transport Officer, Saran.

8. The District Education Officer, Saran.

9. The District Programme Officer, (Establishment), Saran.

10. The District Program Officer (Literacy), Saran.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Shashi Bhushan Kumar, Advocate For the Respondent/s : Mr. Manish Kumar, GP 4 Mr. Ajay Kumar, AC to GP 4 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI ORAL JUDGMENT Date : 20-04-2022

Heard learned counsel for the parties.

2. In the instant petition, petitioner has prayed for the

following relief/reliefs:

"i) To quash the Memo No. 1713 dated 06.11.2020 issued by the director Jan shiksha Cum Additional Secretary Education Department, Bihar, Patna whereby and where under the appointment of the petitioner has been cancelled on the ground he was not working as a instructor continuously three Patna High Court CWJC No.2721 of 2021 dt.20-04-2022

years on the basis of his payment and also direct the authority to recover the paid salary. A copy of memo dated 06.11.2020 is annexed herewith and marked as Annexure-1 to this application.

ii) To further quash the follow up order contained in memo no. 4536 dated 11.11.2020 by which recovery order has been issued. A copy of memo dated 11.11.2020 is annexed herewith and marked as Annexure-2 to this application.

iii) To further direct the respondent authority not disturb the petitioner in his discharging duty as a Group-D post in Higher School Parsa.

And/or any other appropriate relief(s) to the petitioners for which she may be found entitle under the fact and circumstances of the case."

3. Petitioner was appointed against one of the Class IV

post. When he was absorbed on regular basis, the Department

received complaint against the petitioner that he is not eligible to

be absorbed on regular basis. Based on such complaint read with

preliminary enquiry, the concerned respondent proceeded to cancel

the petitioner's regular appointment and further order for recovery.

Feeling aggrieved by the aforesaid decision of the respondent,

petitioner has presented this petition.

4. Learned counsel for the petitioner submitted that the

impugned action is without holding an enquiry. It is further Patna High Court CWJC No.2721 of 2021 dt.20-04-2022

submitted that cancellation of appointment is based on certain

complaint alleged to have been received by the respondents.

Therefore, disciplinary proceedings is warranted once the

petitioner was regularly appointed and holder of a post in the

Government department. It is further submitted that the

respondents are not entitled to recover any amount in terms of

Memo No. 4536 dated 11.11.2020 and it is contrary to Apex Court

decision in the case of State of Punjab vs. Rafiq Masih reported in

(2015) 4 SCC 334.

5. Learned counsel for the State-respondent resisted the

aforesaid contention and submitted that there is no infirmity in the

impugned orders. It is submitted that after preliminary enquiry the

authorities have cancelled the order of appointment issued to the

petitioner and further ordered for recovery.

6. Heard the learned counsel for the respective parties.

7. Crux of the matter in the present petition is whether

orders dated 06.11.2020 and 11.11.2020 is after holding due

enquiry against the petitioner or not? Undisputedly, petitioner was

regular holder of the post in the department as on 06.11.2020, the

date on which appointment was cancelled. Therefore, disciplinary

proceedings is warranted that too if there is complaint against the

petitioner. The alleged allegations were required to be proved in a Patna High Court CWJC No.2721 of 2021 dt.20-04-2022

domestic enquiry. In the absence of such enquiry the impugned

order of cancelling the appointment do not stand and further

recovery order also.

8. Accordingly, Anneuxres - 1 and 2 dated 06.11.2020

and 11.11.2020 stand set aside. Writ petition stands allowed.

Reserving liberty to the respondents to initiate domestic enquiry if

it is warranted, it be initiated and completed within six months and

in accordance with law.

9. The intervening period from the date of termination

till reinstatement, how it has to be regulated is required to be

examined in terms of Managing Director, ECIL V. B Karunakar

reported in (1993) 4 SCC 727 read with Chairman-cum-

Managing Director, Coal India Limited & Ors. V. Ananta Saha

and Others reported in (2011) 5 SCC 142

"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 Patna High Court CWJC No.2721 of 2021 dt.20-04-2022

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 [(1997) 1 SCC 9 : 1997 SCC (L&S) 65 : AIR 1997 SC 633] , Punjab Dairy Development Corpn. Ltd. v. Kala Singh [(1997) 6 SCC 159 : 1997 SCC (L&S) 1434 : AIR 1997 SC 2661] and Graphite India Ltd. v. Durgapur Projects Ltd. [(1999) 7 SCC 645].

48. In ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074] and Union of India v. Y.S. Sadhu [(2008) 12 SCC 30 : (2009) 1 SCC (L&S) 126 : AIR 2009 SC 161] , 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. Patna High Court CWJC No.2721 of 2021 dt.20-04-2022

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 [(2006) 7 SCC 180 : 2006 SCC (L&S) 1590 : AIR 2006 SC 3018] , Akola Taluka Education Society v. Shivaji [(2007) 9 SCC 564 : (2007) 2 SCC (L&S) 679] and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale [(2009) 2 SCC 288 : (2009) 1 SCC (L&S) 372].

50. In view of the above, the relief sought by the delinquent that the appellants be directed to pay the arrears of back wages 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 Patna High Court CWJC No.2721 of 2021 dt.20-04-2022

enquiry. With these observations, the appeal stands disposed of. No costs."

10. In this regard, the disciplinary authority/appointing

authority is hereby directed to take a decision and communicate to

the petitioner as to whether petitioner is entitled for reinstatement

or suspension within a period of two months from the date of

receipt of this order. Further intervening period be regulated

within two months from the date of completing of enquiry

proceedings, in accordance with law.

(P. B. Bajanthri, J) GAURAV S./-

AFR/NAFR
CAV DATE
Uploading Date          22.04.2022
Transmission Date