Patna High Court
Srikant Singh vs The State Of Bihar And Ors on 5 January, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7151 of 2015
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Srikant Singh son of Late Yamuna Singh resident of village and P.O. -
Dhanadihri, P.S. - Parasbigha, District - Jehanabad.
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Principal Secretary, Water Resources Department, Govt. of Bihar, Patna.
3. The Principal Secretary cum Commissioner Rural Works Department Govt.
of Bihar, Patna.
4. The Chief Engineer, Rural Works Department, Govt. of Bihar, Patna.
5. The Special Duty Officer, Rural Works Department, Patna.
6. The Joint Secretary, Rural Works Department, Patna.
7. The Chief Engineer - 4 The Conducting Officer Rural Works Department,
Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Vishwanath Prasad, Advocate
Mr. Ayush Kumar, Advocate
Mr. Kanishk Kaustubh, Advocate
Mr. Shikhar Mani, Advocate
For the Respondent/s : Ms. Kumari Amrita, GP 13
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
ORAL JUDGMENT
Date : 05-01-2024
In the instant petition, petitioner has prayed for the
following relief(s):-
"For quashing the notification
dated 16.12.2014 contained in Annexure-
13 whereby and whereunder the
petitioner has been dismissed from his
service while he was posted as Assistant
Engineer in Rural works Department sub
Division Matihani division Begusarai on
the basis of enquiry report submitted by
the conducting officer vide his letter
dated 05.03.2014 in connection with
Vigilance P.S. Case no. 64/09 instituted
on 05.06.09 under section 201 I.P.C. and
Patna High Court CWJC No.7151 of 2015 dt.05-01-2024
7/13 (C) read with section 13(1)(d) of
Vigilance act against 2 persons including
the petitioner."
2. The petitioner while working as an Assistant Engineer
he had demanded and accepted illegal gratification of a sum of Rs.
20,000/- (Twenty Thousand) in order to render official favour to
the contractor. Arising out of the aforementioned allegation
parallel proceedings were initiated like criminal proceeding and
departmental proceeding. Departmental proceeding was concluded
in imposition of penalty of dismissal from service on 16.12.2014,
whereas Vigilance P.S. Case No. 64 of 2019 initiated on
05.06.2009 under Section 201 IPC and Section 7/13 read with
section 13(1)(d) of Prevention of Corruption Act, 1988 is pending
consideration before the jurisdictional forum. Disciplinary
Proceeding was concluded before conclusion of the criminal
proceedings.
3. Learned counsel for the petitioner submitted that
charge memo is not in terms of the relevant statutory provision
since no witnesses have been cited including the complainant/
contractor who is prime witness to the alleged allegation relating
to demand and acceptance of illegal gratification of a sum of Rs.
20,000/-. It is a case of no evidence since complainant has not
been cited as witness and adduced evidence in respect of alleged
Patna High Court CWJC No.7151 of 2015 dt.05-01-2024
demand and acceptance of illegal gratification of a sum of Rs.
20,000/- (Twenty Thousand). The same has not been disputed by
the learned counsel for the State. He has made such submission
with reference to relevant records.
4. Taking note of these dates and events, the petitioner
has made out a prima facie case for grant of relief insofar as
quashing of dismissal order dated 16.12.2014 (Annexure-13).
Accordingly, impugned order dated 16.12.2014 (Annexure 13)
stands set aside. The matter is referred back to Disciplinary
authority/State Government with liberty to initiate fresh inquiry
with reference to Rule 43 (b) Bihar Pension Rules, 1950 for the
reasons that as on this day the petitioner has already attained the
age of superannuation and retired from service. The fresh inquiry
shall be initiated and completed in accordance with relevant
provision of law within a period of six months from the date of
receipt of this order. The petitioner shall co-operate in
departmental inquiry. The aforementioned finding of this Court is
supported by Hon'ble Apex Court decision in the case of ECIL vs.
B. Karunakaran reported in (1993) 4 SCC 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:-
Patna High Court CWJC No.7151 of 2015 dt.05-01-2024
"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.
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
Patna High Court CWJC No.7151 of 2015 dt.05-01-2024
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 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
Patna High Court CWJC No.7151 of 2015 dt.05-01-2024
the disciplinary authority as explained
hereinabove after the conclusion of the
enquiry. With these observations, the appeal
stands disposed of. No costs."
5. The aforementioned principle has been reiterated by
the Hon'ble Apex Court in the case of State of Uttar Pradesh &
Ors. vs. Prabhat Kumar reported in 2022 Live Law SC 736
Question of reinstatement is not warranted since petitioner has
already attained his age of superannuation and retired from
service, therefore, the intervening period from the date of
dismissal, i.e., 16.12.2014 till date of his retirement is required to
be regulated only on outcome of the fresh departmental inquiry
proceeding to be completed. In this regard, a separate order shall
be passed by the State Government under Rule 97 of Bihar Service
Code to the extent whether is it duty period or leave period or dies
non. Such order shall be passed within a period of two months
from the date of passing final order in the fresh departmental
inquiry.
6. In the meanwhile, petitioner is entitled to provisional
pension under the Bihar Pension Rules, 1950. The same shall be
calculated from the date of his retirement and disburse the same
within a period of three months from the date of receipt of this
order. Thereafter, regulate the pension depending upon the
outcome of the departmental inquiry afresh.
Patna High Court CWJC No.7151 of 2015 dt.05-01-2024
7. With the above observations, the present writ petition
stands allowed in part.
(P. B. Bajanthri, J)
jyoti/-
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