Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 643 (PAT)

Md. Nasim Raza v. State Of Bihar

2000-04-27

SHIVA KIRTI SINGH

body2000
Judgment Shiva Kirti Singh, J. 1. This writ application has been filed by a constable in the service of Government of Bihar whose real grievance is against the decision of the departmental authority whereby he has been treated to be on leave without salary for the period 20.12.1982 to 11.10.1984 as a result whereof the petitioner has been held to be not entitled to any payment for the said period. 2. On the basis of averments and documents annexed to the writ application, learned counsel for the petitioner submitted that admittedly petitioners discharge from service vide order dated 20.12.82 (annexure-4) was interfered with by this Court in C.W.J.C. No. 3714/84 and the order of discharge was quashed on 17.8.1984 (annexure-2) on the ground that the same had been passed in violation of principles of natural justice. However, this Court gave liberty to the respondents to pass fresh orders in accordance with law. Thereafter the petitioner was reinstated but was treated to be under suspension. It appears that on the same allegations the authorities decided to hold a departmental proceeding against the petitioner in which he was awarded a punishment of stoppage of increment of salary for one year. Against that punishment petitioner preferred an appeal which was rejected on 28.8.97 by order of the appellate authority contained in annexure-3. Thereafter, according to the petitioner he accepted the said order of punishment but filed a representation before the Superintendent of Police for passing appropriate orders for deciding the amount to which the petitioner may be entitled during suspension period and he also claimed full salary for the period during which he was kept out of service on account of discharge which was ultimately quashed by this court as noticed above. As noticed above the authority decided to treat the said period as period spent on leave without salary. Petitioners representation in the matter has been allegedly rejected by the impugned order contained in annexure-1. The contents of annexure-1 are not to much help in deciding the dispute involved in this case as the representation of the petitioner appears to have been rejected on technical ground. 3. Petitioners representation in the matter has been allegedly rejected by the impugned order contained in annexure-1. The contents of annexure-1 are not to much help in deciding the dispute involved in this case as the representation of the petitioner appears to have been rejected on technical ground. 3. The question that falls for determination in this case is whether the authorities could treat the period in question when the petitioner was out of service on account of order of discharge as a period on leave without pay or is the petitioner entitled to be treated on full duty during that period therefore entitled for full salary. No rule or law was brought to the notice of this Court to support the stand of the respondents that the said period could be legally and validly treated as a period of leave without salary. However, on perusal of rule 49-A (4) of Civil Services (Classification, Control and Appeal) Rules the claim of the petitioner is also not found to be acceptable. Rule 49- A (4) is as follows : "Where a penalty of dismissal, removal of compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders." 4. From the aforesaid provision in the rules it is clear that in cases where a penalty of dismissal, removal etc. is set aside by a Court of law and thereafter the disciplinary authority on consideration of the circumstances of the case decides to hold a further enquiry against him on the same allegations on which the" earlier penalty or dismissal etc. was imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal etc. and shall continue to remain under suspension until further orders. was imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal etc. and shall continue to remain under suspension until further orders. In view of such provisions the petitioner would be deemed to have been placed under suspension from the date of discharge i.e. 20.12.82 until he was actually placed out of suspension on 10.7.85. 5. It appears that the authorities have decided that during the period of suspension which was erroneously considered by them to consist of period of suspension prior to 20.12.82 and after 11.10.84 the petitioner would be entitled to only subsistence allowance. In view of aforesaid discussions and findings the petitioner would be entitled to subsistence allowance even for the period during which he would be deemed to be under suspension by virtue of Rule 49-A (4) of the Civil Services (Classification, Control and Appeal) Rules, the authorities have erred in law in treating that period to be a period on leave without salary. Under Rule 841 of the Bihar Police Manual the authorities are entitled to decide the amount to be paid for the period of suspension over and above the subsistence allowance and also to decide in appropriate cases as to whether the period of absence from duty shall be treated as a period spent on duty or not. But that does not empower the authority to decide not to pay even the subsistence allowance for such period for which the petitioner has to be treated as under deemed suspension. The fact that the authorities decided to treat him on leave without salary implies that they decided to treat that period as part of the service period without any breakage of service. This inference now cannot be denied by the respondents. 6. Accordingly this writ application allowed in part and the concerned respondents are directed to treat the petitioner under deemed suspension during the period he was out of service on account of order of discharge dated 20.12.1982 and to pay him atleast the subsistence allowance to which he is entilted in law. Such payment should be calculated and made to the petitioner within a period of three months from the date of production/communication of a copy of this order before the senior Superintendent of Police, Patna (respondent no. Such payment should be calculated and made to the petitioner within a period of three months from the date of production/communication of a copy of this order before the senior Superintendent of Police, Patna (respondent no. 4) In the facts of the case there shall be no order as to costs.