IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.1713 of 2005
DEO BACHAN SHARMA SON OF LATE RAMESHWAR
SINGH RESIDENT OF VILLAGE HATI, P.O. HATI, P.S.
KAKO, DISTRICT JEHANABAD AT PRESENT NEW
COLONY, KALI BARI NUTAN NAGAR ROAD, P.S. CIVIL
LINES, DISTRICT GAYA.
Versus
1. THE STATE OF BIHAR THROUGH DIRECTOR GENERAL
OF POLICE, BIHAR AT PATNA.
2. ADDITIONAL DIRECTOR GENERAL OF POLICE,
C.I.D.BIHAR, PATNA.
3. THE DEPUTY INSPECTOR GENERAL OF POLICE,
MAGADH RANGE, GAYA.
4. THE SUPERINTENDENT OF POLICE, GAYA
5. THE SUPERINTENDENT OF POLICE (C ) C.I.D., BIHAR,
PATNA.
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For the Petitioner :- Mr. Mithilesh Kumar Upadhyay,
For the State :- Mr. A. C. to G. P. VII
——
There is a history behind the challenge to the
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order dated 1.11.2003 which has been annexed as
annexure-10 to the writ application. Petitioner is sought
to be punished for the crime which he never committed
and that too without there being any finding by the
enquiry officer that the charges which were drawn up
against him are established.
Short history behind the present writ application
is that the petitioner vide order dated 5.9.1995 issued by
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the police headquarters was ordered to be transferred
from Gaya police force to the C.I.D. at Patna. Petitioner
came and joined on 27.10.995 but since one of the person
who formed part of the chain of transfer was not relieved
since his order of transfer came to be stayed, there was
no vacancy in the C.I.D. Department for the petitioner to
continue. By an order of the C.I.D. department issued on
6.11.1995 petitioner was sent back to Gaya. There were
other orders of transfer in between too but none of them
came to be effected for one reason or the other including
the code of conduct being in force due to some election
or the other going on in the State of Bihar. Petitioner
continued to work with Gaya police till all of a sudden
vide order dated 23.5.1997 issued by the Headquarters,
he came to be suspended for not obeying the order of
transfer issued in the year 1995.
It took two years for the Police Headquarters to
realize that the petitioner has not obeyed the order of
transfer. A deeper look would show that that was not the
actual state of affair because petitioner did report to the
C.I.D. department but was sent back in the circumstances
noted above.
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Petitioner remained under suspension between
28.6.1997 and 7.9.1998. During this period, it is said
that his Headquarter was fixed at the C.I.D. Headquarters
at Patna and even a departmental enquiry was conducted
in which the enquiry officer did not find him guilty.
In view of various orders which came to be
passed at various levels and the manner in which the
petitioner was sent back to the district of Gaya from
where he was transferred, it was more a comedy of errors
rather than a case of defiance by a subordinate to the
orders of the Superiors. In this background the
suspension order came to be revoked but the problem of
the petitioner did not come to an end. Now a new kind
of charge was held out against him that during the period
of suspension he did not remain in the Headquarter and,
therefore, the authorities decided to apply the principle of
‘no work and no pay’ for the period of suspension.
Petitioner filed a review and appeal. The matter was
diluted by the authorities who modified the order to the
extent that this period will be adjusted against his earned
leave. The net effect is that the petitioner does not have
required earned leave for the period of suspension and he
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will go without salary for no fault of his.
Stand of the respondents is that since the
petitioner did not mark his attendance every day during
the period of suspension, that period will have to be
treated as no work and no salary can be paid to him. But
the principle of ‘no work and no pay’ will come to apply
provided it was a voluntary act of the petitioner not to
work. A suspended employee is not expected to work
otherwise he cannot be treated to be a suspended
employee. No doubt, Headquarter is fixed during the
period of suspension but the Court has not been pointed
out any service condition, rule or authority which could
show that the petitioner was expected to perform any
kind of responsibility besides hanging out at the
headquarters during the period of suspension.
Fate of the petitioner came to be decided by the
Police headquarters because there is lack of coordination
amongst the authorities. If the department of C.I.D.
passed an order dated 6.11.1995 and directed the
petitioner to report back to Gaya district Police which
order the petitioner carried out, there was no occasion to
suspend the petitioner for not following the order of
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initial transfer dated 5.9.1995. All these aspects have
been taken note of by the enquiry officer but then the
superiors have failed to look into all these details and the
niceties more so since the petitioner is a small employee,
down ladder who is on the receiving end. There cannot
be a better case of arbitrary exercise of power than what
has been taken note of in the earlier part of the order.
Annexure-1 stands quashed. The respondent
authorities are directed to pay salary of the petitioner for
the period 28.6.1997 to 7.9.1998 which was ordered to be
withheld and adjusted against the earned leave.
Withholding of salary or even subsequent modification
of the order by adjusting the said period against earned
leave would amount to punishing the petitioner for a
charge which was not proved or established.
This writ application is allowed. Since the
petitioner has already superannuated, the Court expects
the benefit to accrue to the petitioner within a period of
three months from the date of production or
communication of a copy of this order.
AMIN/ (Ajay Kumar Tripathi, J.)
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