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1966 DIGILAW 143 (PAT)

Tarak Nath Ghosh v. State Of Bihar

1966-10-11

A.B.N.SINHA, H.MAHAPATRA

body1966
Judgment Mahapatra, J. 1. This is an application under Articles 226 and 227 of the Constitution for issuance of a writ or direction to the Union of India, the State of Bihar, Inspector-General of Police, Bihar, Accountant-General of Bihar and the Treasury Officer, Patna Secretariate asking them "to obey the order of this court and to put the petitioner back to his service as Special Officer, Political (General and Transport) Department and to make payments to him of his just and lawful dues and his salary and allowances to which he is entitled in the aforesaid post." 2. The circumstances in which this petition has been filed may be stated, in brief, as follows. The petitioner was holding the post of Special Officer, Political (General and Transport) Department of the Government of Bihar, when he received an order of suspension from the Government of India on the 31st July, 1964. He challenged that order in a writ application in this court in Misc. Judl. Case No. 1207 of 1964; and on the 31st March 1965: (reported in AIR 1967 Pat 81 ) this court quashed the suspension order. Subsequent to that, the petitioner has again been suspended by an order dated the 14th July, 1965; but we are not concerned with that at present. In the present application, the petitioner complained that in spite of the first order of suspension having been quashed by this court, he has not been allotted any work or has not been posted to any place and further, he has not been paid his legitimate dues to which he was entitled during the period of his suspension and for the period thereafter till the departmental inquiry was initiated. 3. In the return made by respondent 1 (the State of Bihar), it was stated that respondents 1 and 5 asked this court for a certificate to file an appeal against the judgment of this court quashing the suspension order and they were advised that the whole matter will have to be re-examined by the Supreme Court if the certificate was granted; and, in that view, the petitioner was not paid his salary for the period involved. During argument, we were told that a certificate had already been granted to the respondents and they were taking necessary steps for lodging an appeal before the Supreme Court. During argument, we were told that a certificate had already been granted to the respondents and they were taking necessary steps for lodging an appeal before the Supreme Court. This, however, in our view, is no justification for withholding payment of the salary to the petitioner when his suspension was held to be invalid by this court. It is true that in the prevvious writ application, the petitioner had not asked for a writ in regard to the payment of his legitimate dues, if his suspension from service was quashed. But, all the same, after the judgment was delivered by this court and until that is modified or reversed by the Superior Court, the petitioner must be held not to have been under suspension till the second suspension order was passed on the 14th July 1965. 4. Learned Advocate General urged before us that under the theory that every civil servant holds his post under the pleasure of the President, he can be suspended by the President irrespective of any departmental proceeding. He relied upon Article 310 of the Constitution for this purpose. He, however, conceded that the theory of pleasure in respect of termination of service was, however, modulated by the provisions of Article 311, but he said in regard to suspension of the civil servant no such restriction has been imposed upon the President under the Constitution. This argument was not accepted by this court in the previous writ application of the petitioner; and we do not propose to re-examine that question here since that matter is now under appeal to the Supreme Court. 5. Next, it was contended for the respondents that in absence of any direction for payment of his salary to the petitioner in the previous judgment of this court, there has not been any violation on the part of the State Government and it is open to the petitioner to seek his remedy under the normal law by filing a suit for recovery of money from the State Government, if he is so advised. An attitude of this nature on the part of a Government, particularly in view of the judgment of this court quashing the suspension, can neither be appreciated nor encouraged. An attitude of this nature on the part of a Government, particularly in view of the judgment of this court quashing the suspension, can neither be appreciated nor encouraged. It is expected that a Government of any civilised country would respect the decisions of the court as fully and reasonably as possible, and not drive a civil servant to onerous and expensive litigations for securing the obvious redress. The petitioner is entitled as the situation now stands to his salary and other remunerations, if any, as he would have got but for the first suspension order. 6. As for the allotment of work or posting the petitioner to a particular office after the judgment of the High Court, I do not think that the Government can be forced to do either of the two things. The liability to pay the salary and remuneration is different from the obligation of taking work from a civil servant. The holder of a civil post has not got any enforceable right against his employer for assigning work to him although he has got such a right to receive the contracted remuneration as long as his service is not terminated. In that view, one part of the petitioners grievance has no substance. 7. Learned Advocate-General further contended that this court should not exercise its powers under Articles 226 and 227 of the Constitution in a case of this nature, where the first suspension order, though quashed by this court, has been taken to the Superior court and when a second suspension order has in the meanwhile been passed against the petitioner and which has not been challenged in any proceeding before this court and the petitioner has been offered to be paid the subsistence allowance as allowable to him during the period of suspension for all the relevant time. I do not feel impressed by this reasoning. The second suspension order no doubt disentitled the petitioner to his regular salary, but before that, he must be held to be entitled to such salary since the judgment quashing the first suspension order still holds the ground. 8. For the reasons given above, the respondents are directed to pay in accordance with the usual procedure the salary and other remuneration, if any, that the petitioner would have been entitled to get but for the suspension order. The rule is made absolute to that extent. 8. For the reasons given above, the respondents are directed to pay in accordance with the usual procedure the salary and other remuneration, if any, that the petitioner would have been entitled to get but for the suspension order. The rule is made absolute to that extent. The petitioner will be entitled to one hundred rupees as costs of this proceedings from respondent 1. A.B.N.Sinha, J. 9 I agree.