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2002 DIGILAW 1187 (JHR)

Shivnandan Singh v. State Of Jharkhand

2002-11-26

TAPEN SEN

body2002
JUDGMENT Tapen Sen, J. 1. Heard Mr. Kishor Kumar Mishra, learned counsel for the petitioner and Mr. Suresh Kumar learned J.C. to AAG. 2. In a criminal case under the provisions of Sections 25 and 26 of the Arms Act, the petitioner was arrested and sent to Jail. He remained in Jail during the period 14.9.1994 to 30.6.1996 whereafter he was released. In the mean time having been convicted/sentenced, the petitioner preferred Criminal Appeal No. 14 of 1996, which was decided by the First Additional Session Judge, Palamau on 28.1.1996 and the petitioner was acquitted. A copy of the judgment is Annexure-1. Twelve months thereafter, i.e., on 23.12.1996 the Petitioner was put under suspension for having remained in Jail during the aforementioned period and the ground assigned was that he had not furnished adequate information to the Senior Officers in relation to his having been sent to Jail. The order of suspension was passed on 23.12.1996 but it was made retrospective with effect from 14.9.1994. The Petitioner filed CWJC No. 1425 of 1999 (R) and the retrospective part of the order of suspension was quashed by order dated 13.12.1999 and the respondents were directed to conclude the proceeding within three months from the date of the receipt or production of a copy of the order, failing which it was ordered that the order of suspension shall automatically stand revoked. 3. Pursuant to the aforementioned order, the Petitioner gave his Joining on 22.3.2000 whereafter he was allowed to join but he was not paid his salary. Consequently he again moved CWJC No. 1943 of 2000 (R) which was again disposed off on 10.7.2000 with a direction to file a representation and the concerned respondent was in turn directed to consider and dispose it off by passing a reasoned order within one month. Thereafter on 14.9.2000, the Deputy, Commissioner, Palamau passed the impugned order as contained at Annexure-5 and the petitioner is aggrieved by Clause 1 thereof. Clause 1 of the impugned order which states that during the period spent in Jail, i.e., 14.9.1994 to 30.6.1996, the petitioner would get 50% of his salary for the first 12 months and thereafter from the 13th month onwards, he would get 75% of the dearness allowance. The period spent in Jail would be treated to be Earned Leave and this would be counted in his service. 4. Mr. The period spent in Jail would be treated to be Earned Leave and this would be counted in his service. 4. Mr. Suresh Kumar, learned counsel for the respondents has attempted to justify the order by submitting that the petitioner was taken into custody and remained in Jail during the period i.e., 14.9.1994 to 30.6.1996 and he was put under suspension with effect from 14.9.1994 and therefore no salary can be paid to him for the period he spent in custody. He has further submitted that the petitioner was given a technical acquittal and not a clean acquittal and therefore, the petitioner is not entitled to any relief. The aforementioned submissions of the learned counsel for the respondents must be rejected outright, Firstly, the judgment of the Appellate Court is not an acquittal merely on technicalities. It is an acquittal on merits of the case and therefore, the Judgment referred to by the learned counsel for the respondents, i.e., the case of Sheo Prasad v. The State of Bihar as referred to by them at paragraph 10 of the counter affidavit does not come to their aid. Additionally Rule 97 of the Bihar Service Code makes it specific that where an authority mentioned in Sub-rule (1) is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, then he would be given full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended. Rule 97 (1) of the Bihar Service Code also lays down that when a Government servant (dismissed, removed or suspended) is reinstated, the competent authority shall consider and pass a specific order in relation to the pay and allowances to be paid to the Government servant for the period of his absence from duty and shall also pass an order as to whether or not period shall be treated as period spent on duty. From a bare reading of the aforesaid provisions of Rule 97 and on harmonious consideration thereto, it is apparent that the concerned authority is obliged to give reasons in relation to full payment of salary etc. once the Government servant has been fully exonerated. Since it has already been held that the petitioner was acquitted on merits and not on technicalities, his acquittal therefore is of full exoneration. once the Government servant has been fully exonerated. Since it has already been held that the petitioner was acquitted on merits and not on technicalities, his acquittal therefore is of full exoneration. In the instant case what the authorities have done is that although the petitioner was fully exonerated, the Deputy Commissioner, without giving any reasons, straight away proceeded to pass the impugned portion of the order as contained at Annexure-5. When the petitioner was acquitted honourably and that too on merits, there is no justification therefore on the part of the Deputy Commissioner to pass the impugned order thereby depriving the petitioner of a substantial part of his valid rights. 5. In that view of the matter, the impugned portion of Annexure 5 is set aside and the matter is remanded to the Deputy Commissioner, Palamau to pass a reasoned order in accordance with law after taking into consideration the observations made above. 6. With the aforementioned observations and directions, this Writ Application is allowed. There shall, however, be no order as to costs.