Patna High Court
The State Of Bihar And Ors vs Bibhuti Nath Jha And Ors on 8 August, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1046 of 2018
In
Civil Writ Jurisdiction Case No.22005 of 2014
======================================================
1. The State Of Bihar.
2. The Principal Secretary, Building Construction Department, Government of
Bihar, Patna.
3. The Joint Secretary, Building Construction Department, Government of Bi-
har, Patna.
... ... Appellant/s
Versus
1. Bibhuti Nath Jha and Ors Son of Late Baidya Nath Jha, Resident of Mohalla
- Kadamkuan, P.S. - Kadamkuan, District - Patna.
2. The Principal Secretary, Road Construction Department, Govt. of Bihar,
Patna.
3. The Engineer-in-Chief-Cum-Additional Commissioner-cum Special Secre-
tary, Road Construction Department, Government of Bihar, Patna.
4. The Chief Engineer, National Highway Wing, Road Construction Depart-
ment, Govt. of Bihar, Patna.
5. The Joint Secretary, Road Construction Department, Govt. of Bihar, Patna.
6. The Deputy Secretary, Road Construction Department, Govt. of Bihar,
Patna.
7. The Executive Engineer, National Highway Divison, Road Construction De-
partment, Muzaffarpur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Amit Prakash, GA-13
Mr. Amrit Anand, AC to GA-13
For the Respondent/s : Mr. Suresh Pd Singh No.1, Advocate
Ms. Kumari Rashmi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 08-08-2024
Ref: I.A. No.5657 of 2018 & I.A. No. 5656 of 2018
The present L.P.A. is filed by the State in assailing
Patna High Court L.P.A No.1046 of 2018 dt.08-08-2024
the order of the learned Single Judge dated 21.02.2018 passed in
C.W.J.C. No. 22005 of 2014.
2. Heard I.A. No. 5657 of 2018 for condonation of
delay. There is a delay of about 124 days in filing L.P.A. No.
1046 of 2018. For the reasons stated in the application read with
the affidavit, delay of about 124 days in filing L.P.A. No. 1046
of 2018 stands condoned.
3. Accordingly, I.A. No. 5657 of 2018 stands
allowed.
4. I.A. No. 5656 of 2018 for impleading newly
carved out department namely Building Construction
Department from the original Road Construction Department
was constituted on 29.07.2013. Moreover, the Respondent -
Bibhuti Nath Jha retiral benefits have been settled by the
Building Construction Department. Therefore, Building
Construction Department has been arrayed as necessary and
proper party in the present L.P.A.
5. Accordingly, I.A. No. 5656 of 2018 stands
allowed insofar as impleading Building Construction
Department (BCD). Appellant is hereby directed to carry out
necessary amendment in the cause title during the course of the
day.
Patna High Court L.P.A No.1046 of 2018 dt.08-08-2024
6. With the consent of the learned counsels for the
respective parties, L.P.A. is taken up for final disposal.
7. Learned State counsel restricted his contention
only to the extent of remanding the matter to the disciplinary
authority to continue the inquiry proceedings from the defective
stage and conclude the same in view of the fact that alleged
charge is relating to certain financial irregularities. In this
regard, learned counsel for the Appellant cited decision in the
case of The State of Bihar and Ors. vs. Binod Kumar Jha
(L.P.A. No. 614 of 2021).
8. Per contra, learned counsel for the Respondent
resisted the aforementioned contention and submitted that there
are no financial irregularities so as to matter is required to be
remanded. In support of the same, learned counsel for the
Respondent could not appraise from the charge memo to the
extent that the charges are not relating to any financial
irregularities. On the other hand, learned counsel for the
appellant has pointed out from the order of the learned Single
Judge in para-6 gist of the charge has been analysed.
9. Taking note of the aforementioned contention
and the fact that in a departmental inquiry, if Courts are setting
aside the penalty order on technicality and if the charges are
Patna High Court L.P.A No.1046 of 2018 dt.08-08-2024
relating to financial irregularities in such circumstances, matters
are required to be remanded to the disciplinary authority to
continue the disciplinary proceedings from the defective stage.
Similarly, if he is in service, in that event, disciplinary authority
is empowered to take a decision whether to keep an official /
employee, under suspension, or not. The aforementioned
principle has been held by the Hon'ble Supreme Court in the
case of ECIL vs. B. Karunakaran reported in (1993) 4 SCC
727, Chairman-cum-Managing Coal India Ltd. vs. Ananta
Saha and Ors. reported in (2011) 5 SCC 142 and State of Uttar
Pradesh & Ors. vs. Prabhat Kumar reported in 2022 Live
Law SC 736. In para 46 to 50 in Coal India case, it is held 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
Patna High Court L.P.A No.1046 of 2018 dt.08-08-2024
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.
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.
Patna High Court L.P.A No.1046 of 2018 dt.08-08-2024
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 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."
10. In the light of the aforementioned facts and
circumstances, we are modifying the order of the learned Single
Judge dated 21.02.2018 passed in C.W.J.C. No. 22005 of 2014
only to the extent of remanding the matter to the disciplinary
authority to continue the disciplinary proceedings from the
defective stage. If the disciplinary authority is not State
Government, in that event, the State Government has to take
Patna High Court L.P.A No.1046 of 2018 dt.08-08-2024
over the file in the light of Rule 43(b) of Bihar Pension Rules
and conclude the disciplinary proceedings from the defective
stage within a period of 04 months from the date of receipt of
this order. The Respondent is hereby directed to co-operate in
the departmental inquiry. If the disciplinary authority/State
Government failed to complete the enquiry proceedings within
the time limit stipulated supra, in that event, enquiry
proceedings stands vitiated. In the light of prolonged
disciplinary proceedings and its conclusion read with the fact
that litigation was pending consideration for more than decade.
11. With the above observation, L.P.A. No. 1046 of
2018 stands allowed in part.
(P. B. Bajanthri, J)
( Alok Kumar Pandey, J)
manish/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 13.08.2024
Transmission Date NA
