Patna High Court – Orders
Manish Sharma @ Mritunjay Kumar … vs The State Of Bihar on 19 December, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5138 of 2023
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Manish Sharma @ Mritunjay Kumar (Constable No. 79) S/o Kamleshwari
Sharma, Resident of Village Bhan Tekahi, P.S. Madhepura, District-
Madhepura.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Secretary, Home Affairs, Government
of Bihar Patna.
2. The Director General of Police, Government of Bihar, Patna.
3. The Inspector General of Police, Kosi Division, Purnia.
4. The Deputy Inspector General of Police, Kosi Division, Saharsa.
5. The Superintendent of Police, District- Purnia.
6. The Inquiry Officer Circle Inspector, P.S. Sadar-B, District- Purnia.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. A.K. Singh, Advocate
Mr. Chandan Kumar, Advocate
For the Respondent/s : Mr. M. Nasrul Huda Khan, SC-1
Mr. Harun Quareshi, AC to SC-1
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
6 19-12-2024
Heard Mr. A.K. Singh, learned counsel along with
Mr. Chandan Kumar, learned counsel appearing on behalf of the
petitioner and Mr. M. Nasrul Huda Khan, learned SC-1
appearing on behalf of the respondents.
2. The petitioner in paragraph no. 1 of the present writ
petition has sought inter alia following relief(s), which is
reproduced hereinafter:
“That this is the writ petition being filed before this
Hon’ble High Court on behalf of the aforesaid petitioner for
issuance of a writ in the nature of ‘Certiorari’ whereby and
whereunder setting aside the Purnia Regional Order No.
244/2022 as contains in Memo No. 1685, dated 14.11.2022
issued and signed under the signature of Inspector General of
Patna High Court CWJC No.5138 of 2023(6) dt.19-12-2024
2/6Police Purnia Region, District – Purnia and the consequential
order passed by Superintendent of Police Purnia in Purnia
District order No. 2105/2022 as contains in Memo No. 4955
dated 19.11.2022, whereby and whereunder the appeal filed by
the petitioner hereinabove has been rejected by the Inspector
General of Police Purnia Region, District Purnia and as such,
the dismissal order passed against the petitioner has been
confirmed; and further prayer of the petitioner herein is for
issuance of the writ in the nature of ‘mandamus’ whereby and
whereunder commanding and directing the state respondents to
reinstate the petitioner for the post of constable after setting
aside the impugned order by this Hon’ble Court and accordingly
all the consequential benefits with regard to monetary ones be
given to the petitioner without considering the breakage of
service.”
3. The brief facts of the case are that the petitioner was
appointed as constable in Bihar Police Force in the year 2011.
Petitioner went on leave on 22.10.2019 authorized by the
competent authority and he had to assume his duty on
24.10.2019 but he could not joined his duty within time and for
the said reason, he was subjected to departmental proceeding. In
this regard, a report was called for by the Superintendent of
Police, Purnia from his counterpart Superintendent of Police,
Madhepura and in response to that Superintendent of Police,
Madhepura reported that petitioner had been convicted in
connection with Madhepura P.S. case no.244 of 2006
registered for offence under section 302/34 1.P.C. and in
consequence thereof, he was in judicial custody. On 10.01.2020,
petitioner was put under suspension and departmental
proceeding was ordered to be initiated against the petitioner
vide order dated 21.01.2020. On 09.02.2020, departmental
Patna High Court CWJC No.5138 of 2023(6) dt.19-12-2024
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proceeding was initiated against the petitioner. On 07.12.2020,
while the petitioner was in jail custody, departmental proceeding
was concluded without giving any proper opportunity to the
petitioner and major punishment of dismissal from service was
passed as contained in Memo No. 3854. Petitioner was released
on bail vide order dated 06.07.2021 passed in Cr. Appeal (DB)
No. 31 of 2020. Thereafter, the petitioner had preferred appeal
against the order of dismissal, which was rejected by Inspector
General of Police Purnia on 14.11.2022. Aggrieved by the
dismissal order, the petitioner has filed the present writ petition.
4. This Court has recorded in view of the submission
made on behalf of the respondent, as to whether, the petitioner,
who was absent from duty for nearly two years after he having
been convicted, will constitute misconduct?
5. In this regard, learned counsel appearing on behalf
of the petitioner has relied on a co-ordinate Bench judgment
dated 06.04.2022 passed in CWJC No. 17881 of 2016 (Shravan
Kumar vs. the State of Bihar & Ors.).
6. I find that though the issue was not framed by the
co-ordinate Bench in the said case, however, from the perusal of
the facts as recorded in paragraph no. 4, it is evident that the
petitioner of the said case was also in jail custody. The co-
Patna High Court CWJC No.5138 of 2023(6) dt.19-12-2024
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ordinate Bench relying on the law laid down by the Apex Court
in case of Managing Director, ECIL Vs. B. Karunakar
reported in (1993) 4 SCC 272 read with Chairman-cum-
Managing Director, Coal India Limited & Ors. V. Ananta
Saha and Ors. reported in (2011) 5 SCC 142 by taking note of
paragraphs no. 46 to 50, has concluded as under:
“7. Insofar as reinstatement or placing the petitioner
under suspension decision shall be taken within a period of two
months from the date of receipt of this order.”
7. Further in Paragraphs no. 46 to 50 of the Managing
Director, EICL (Supra) it observed inter alia hereinafter:
“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, notentitled 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 [(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
Patna High Court CWJC No.5138 of 2023(6) dt.19-12-2024
5/6the 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 [(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 enquiry. With these observations, the appeal
stands disposed of. No costs.”
8. I hardly find any difference from the pleading, as
well as, the facts of the present case and, as such, I direct the
Disciplinary Authority, if at all, it want to take Disciplinary
action, in light of law laid down by the Apex Court in case of
B.C. Chaturvedi vs. Union of India & Ors. reported in (1995) 6
SCC 749, the petitioner is required to be reinstated or by placing
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the petitioner under suspension, the decision is required to be
taken by the Disciplinary Authority well within a period of two
months.
9. Accordingly, the present writ petition stands
disposed of.
(Purnendu Singh, J)
Niraj/-
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