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Awadh Singh vs Home Department on 13 November, 2017

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.903 of 2017

Awadh Singh, son of late Chandeshwar Singh, resident of village Sakrowdha, P.O.
Sakrowdha, P.S. Nalanda, District Nalanda (Bihar).
… … Petitioner
VERSUS

1. The State of Jharkhand through Secretary, Home Department, Govt. of Jharkhand,
Ranchi.
2. The Director General of Police, Ranchi.
3. The Deputy Inspector of General of Police, North Chhotanagpur, Hazaribagh.
4. The Superintendent of Police, Koderma.
5. The Officer-in-Charge of Marcachho Police Station, Koderma.
… … Respondents.

For Petitioner : Mr. Rajesh Lala, Advocate
Mr. Rakesh Kumar Gupta, Advocate
For Respondent-State : Ms. Aparajita Bhardwaj, JC to AG

CORAM: HON’BLE MR. JUSTICE DR. S. N. PATHAK

07/ 13.11.2017

Heard learned counsel for the petitioner and learned counsel for the
respondents.

2. The petitioner has approached this Court with a prayer for quashing
part of the order No. 991/2016, as contained in the memo No. 1316 dated
02.07.2016 (Annexure-13) issued by the S.P. Koderma, whereby the claim of
the petitioner for full back wages of suspension period and arrears of back
wages for the period in between the date of dismissal on 04.04.2011 of the
petitioner till his joining on 01.07.2016 has been rejected on the ground of “No
Work No Pay”.

3. The factual exposition as has been delineated in the writ petition is
that when the petitioner was posted as Police Hawaldar at Markachho Police
Station, Koderma, an FIR was lodged against the petitioner being Markacho
P.S. Case No. 51 of 2010 corresponding to G.R. Case No. 406 of 2010 under
Section 377 IPC, for an allegation of commission of unnatural offence. The
petitioner was immediately taken into custody on 05.06.2010 for the alleged
offences. It is the further case of the petitioner that he was put under
suspension vide order dated 05.06.2010 on the ground of offence under
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Section 377 IPC. Thereafter, a departmental proceeding was also initiated
against the petitioner by issuance of charge-sheet dated 25.06.2010 on the
same ground. The petitioner was proceeded departmentally as well as in
criminal proceeding. In the criminal proceeding, the petitioner was acquitted
on 13.12.2012 but in the departmental proceeding, the petitioner was found
guilty of the charges and he was dismissed from service on 04.04.2011 and the
same was also affirmed by the higher authorities in the Appeal as well as in
Revision. The said order of dismissal was subject matter of challenge in
W.P.(S). No. 5765 of 2013 and this Hon’ble Court vide order dated
18.04.2016, quashed the order of dismissal with an observation to reinstate the
petitioner in service forthwith. It was specifically observed that the question of
back wages was left open for consideration before the respondent-authorities.
After acquittal from the criminal charges and after quashment of the order of
dismissal on 18.04.2016, the petitioner moved before the respondent-
authorities vide Annexure-12, mentioning therein that in view of the
quashment of the order of dismissal by the Hon’ble Court, the petitioner has
been reinstated and as such, he has given his joining. Thereafter, in view of the
representation of the petitioner, the respondents after due consideration, issued
an order dated 02.07.2016, which is the subject matter of challenge before this
Court.

4. Mr. Rajesh Lala assisted by Mr. Rakesh Kumar Gupta, learned
counsel appearing for the petitioner strenuously urges that the petitioner is
entitled for the back wages from the date of dismissal to the date of
reinstatement. To buttress his arguments Mr. Lala places heavy reliance on the
following judgments and argues that in view of the ratio decided in the
following judgments, the petitioner is fully entitled for back wages from the
date of dismissal till the date of reinstatement.

(i) Union of India Ors. Vrs. Jaipal Singh [(2004) 1 SCC 121];

(ii) Commissioner, Karnataka Housing Board Vrs. C. Muddaiah
[(2007) 7 SCC 689];

(iii) Arun Kumar Singh Vs. State of Jharkhand Ors. [2016(4) JBCJ
599 (HC)]; and

(iv) Basudeo Prasad Yadava Vs. State of Jharkhand Ors. [2017(3)
JLJR 1]

Mr. Rajesh Lala draws the attention of the Court towards Rules
97(2) and 99 of the Jharkhand Service Code and argues that in view of Rule
3

97(2), the petitioner is entitled for back wages and as such, the impugned order
dated 02.07.2016 has been passed illegally, arbitrarily and against the
provisions of law and is fit to be quashed and set aside with a direction to the
respondents to pass an order for payment of back wages from the date of
dismissal till the date of reinstatement.

5. Per contra counter-affidavit has been filed. Ms. Aparajita Bhardwaj,
learned JC to AG appearing for the respondents vehemently opposes the
contention of the learned counsel for the petitioner. Learned counsel for the
respondents empathetically argued that the judgments cited by the learned
counsel for the petitioner is not at all applicable in the instant case. Learned
counsel further argued that there are two instances in which the order of
acquittal can be taken into consideration for grant of back wages. Learned
counsel further argued that in case where the complaint has been lodged by a
3rd party, in that case the plea of the petitioner that he was stopped from work
and as such, they are liable for the back wages is not tenable. It is only in the
case where the Department has lodged complaint against the petitioner then in
that case if there is an acquittal, the petitioner is entitled for the back wages.
Learned counsel further argued that the judgments cited by the learned counsel
for the petitioner is not distinguishable on the ground that in the impugned
order it has been clearly mentioned that petitioner is not entitled for any back
wages other than substantial allowance, on the ground of ‘No Work No Pay’.
Admittedly, the petitioner did not work in the said period and it was not at the
instance of the respondents but the petitioner was convicted on the basis of a
complaint lodged by a 3rd party. Learned counsel further argued that petitioner
is entitled for payment only from the date of his reinstatement which has
rightly been done by the respondents and as such, order dated 02.07.2016 is
fully justified.

6. Be that as it may, having gone through the rival submissions of the
parties, this Court is of the considered view that no interference is warranted in
the instant writ petition. The impugned order is fully justified on the following
grounds:-

i) The petitioner is entitled for payment of salary only from the date of
his reinstatement. The petitioner was reinstated on 01.07.2016 and as
such, he was not liable to get the back wages.

ii) After quashment of the order of dismissal, the Hon’ble High Court
in its order dated 18.04.2016, directed the respondents to take a decision
regarding back wages. Pursuant to that, the respondents have taken a
4

decision vide order dated 02.07.2016 in accordance with law, which is
fully justified.

iii) In the instant case, the acquittal was not honorable rather the
petitioner was acquitted on the ground of benefit of doubt. The Hon’ble
Apex Court in case of Deputy Inspector General of Police and Anr.
Vs. S. Samuthiram, reported in (2013) 1 SCC 598 has held as under:-

“26. As we have already indicated, in the absence of
any provision in the service rules for reinstatement, if an
employee is honourably acquitted by a criminal court, no
right is conferred on the employee to claim any benefit
including reinstatement. Reason is that the standard of
proof required for holding a person guilty by a criminal
court and the enquiry conducted by way of disciplinary
proceeding is entirely different. In a criminal case, the
onus of establishing the guilt of the accused is on the
prosecution and if it fails to establish the guilt beyond
reasonable doubt, the accused is assumed to be innocent.
It is settled law that the strict burden of proof required to
establish guilt in a criminal court is not required in a
disciplinary proceedings and preponderance of
probabilities is sufficient.”

iv) In absence of certificate regarding petitioner being ‘not in a gainful
employment’, the impugned order is fully justified.

7. As cumulative effect of the aforesaid rules, guidelines, judicial
pronouncements, no interference is warranted in the instant writ petition.

8. Resultantly, the writ petition merits dismissal and is hereby
dismissed.

(Dr. S.N. Pathak, J.)

kunal/-

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