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2003 DIGILAW 1170 (PAT)

Sunil Kumar Singh v. State Of Bihar

2003-11-14

S.N.JHA

body2003
Judgment 1. This is a petition for initiating contempt proceeding for alleged disobedience of order dated 4.10.99 in CWJC No. 958 of 1998. 2. The petitioner along with three others had filed the writ petition seeking direction upon the respondents to post them as Enforcement Sub-Inspector in the Transport Department and pay them arrear as well as current salary. The Court observed, as regards the first prayer, that the petitioners are not entitled for their posting as Enforcement Sub-Inspector. As regards the second prayer, observing that the Transport Department was not liable for salary for the period after the petitioners stood relieved from the post of Enforcement Sub-Inspector on or about 16.12.95, the Secretary Home (Police) Department, was directed to determine the petitioners entitlement of salary from 16.12.95 in accordance with law.The Court observed that if the petitioners were not provided any posting in the Home (Police) Department, the Secretary would further determine whether they would be entitled to full salary in absence of order of posting. 3. It may straightaway be stated that the petitioner had been placed under suspension on 16.1.97 for his failure to join the post of Sub-Inspector in Dhanbad district where he was posted earlier before his deputation, after he was reverted to the parent service i.e. Police Department which fact was conveniently suppressed by him in the writ petition. The writ petition was filed after one year of the order of suspension on 28.1.98 and it is difficult to believe thathe was not aware of it. I have no doubt in my mind that had the fact that petitioner had been placed under suspension by the competent authority brought to the notice of the learned Judge, the order in the above mentioned form would not have been passed. 4. Be that as it may, before coming to the question of compliance of the order relating to salary, a few facts may be stated. Before his deputation to the Transport Department and his posting as Enforcement Sub-Inspector, the petitioner was posted in Dhanbad district. After he was relieved by the Transport Department on 16.12.95 and the service book etc. were returned on 26.12.95 the petitioner did not submit his joining there. On 8.11.96 the Superintendent of Police, Dhanbad informed the police headquarters regarding his nonjoining. After he was relieved by the Transport Department on 16.12.95 and the service book etc. were returned on 26.12.95 the petitioner did not submit his joining there. On 8.11.96 the Superintendent of Police, Dhanbad informed the police headquarters regarding his nonjoining. On 14.11.96 the Headquarters issued instructions to the effect that if the petitioner does not join Dhanbad District Police Force by 15.1.97 he should be placed under suspension. In the light of the said instructions of the headquarters on 16.1.97 the petitioner was placed under suspension by Dhanbad District Order no. 126/96. Nevertheless, after the High Court passed the order in the connected case on 4.10.99 the Home (Police) Department by memo no. 15797 dated 16.12.99 directed the DGP Bihar to accept the petitioners joining and post him on a vacant post and also pay him arrear salary. As already indicated above, the petitioner had been placed under suspension on 16.1.97 itself and, therefore, there was no question of acceptance of his joining and posting as if he was entitled to regular posting. Be that as it may, direction was issued to accept the petitioners joining in Dhanbad district From the show cause of the DGP and DIG (Personnel) it appears that the petitioner gave his joining at Dhanbad on 8.1.2000 but only to disappear from the next day. On 17.1.2000 the Superintendent of Police, Dhanbad informed the Headquarters about the non-availability of vacant post in the rank of Sub-Inspector whereafter the petitioner was transferred to Garhwa district. As the petitioner would have it, he did not join at Garhwa too and continued to be absent. To facilitate payment of subsistence allowance/pay for the earlier, a vacant post of Sub-Inspector of Special Branch at Patna was temporarily transferred to Dhanbad district on 3.10.2000. A departmental proceedings being Dhanbad District Departmental Proceeding no. 126/ 2000 was initiated against the petitioner for his non-joining at Garhwa. Another proceeding being Dhanbad District Departmental Proceeding no. 205/2000 was initiated for his absence after a single days joining on 8.1.2000 at Dhanbad after the petitioner stood relieved from Transport Department. Earlier, departmental proceeding no. 10/97 had been initiated with respect to the petitioners acts of omission and commissions in which finally he was dismissed from service on 28.1.2002 by the Range DIG of Police, Bokaro. In view of the dismissal order the other two proceedings i.e. proceeding nos. Earlier, departmental proceeding no. 10/97 had been initiated with respect to the petitioners acts of omission and commissions in which finally he was dismissed from service on 28.1.2002 by the Range DIG of Police, Bokaro. In view of the dismissal order the other two proceedings i.e. proceeding nos. 126/2000 and 205/2000 have been kept in obeyance. 5. Now coming to the compliance of the Courts order by which a direction was issued to the Home Secretary to determine the petitioners claim, it has been stated in the affidavit of the Home Secretary that the authority competent to decide the claim upto the rank of Inspector of police is the Headquarters and the concerned Superintendent of Police in the case of S.I. The Joint Secretary Home (Police) Department on 16.12.2000 accordingly advised the DGP to take decision in respect to the petitioners claim regarding salary. The DGP has passed a detailed order vide his memo no. 4100/P2 dated 11.11.2003. The petitioners claim has been considered in three separate categories for different periods. For the period 16.12.95 (when he was relieved by the Transport Department) to 15.1.97 (before he was placed under suspension on 16.1.97) the petitioner has been denied salary on the principle of no work no pay. For the period 16.1.97 (when he was placed under suspension) to 14.11.2000 (before bifurcation of the State of Bihar on 15.11.2000) the petitioner has been held entitled to admissible subsistence allowance. For the period from 15.11.2000 to 28.1.2002 the date of his dismissal from service, it has been held that on account of the petitioners posting in the State of Jharkhand, decision is to be taken by the DGP Jharkhand for which request has been made to him. 6. As regards the first period from 16.1.97 to 14.11.2000, there is no dispute that the petitioner did not work. He stood relieved from the Transport Department but continued to loiter around and filed writ petition seeking direction for his posting as Enforcement Sub-Inspector and payment of salary he suppressing not only the fact that he was under suspension but also the fact that he had been formally relieved from the Transport Department on 16.12.95 and the relevant papers including the service book had been returned on 26.12.95. As the petitioner did not work during the relevant period, he is not entitled to salary for the said period. 7. As the petitioner did not work during the relevant period, he is not entitled to salary for the said period. 7. As regards the period from 16.1.97 to 14.11.2000 the petitioner has been held entitled to subsistence allowance. Though it goes without saying that an employee under suspension is entitled to subsistence allowance it is equally true that right to receive subsistence allowance is not absolute, it is subject to certain conditions such as presence at the headquarters. If the petitioner was not present at the headquarters (fixed during suspension period) it is doubtful if he can be held entitled to subsistence allowance either. Be that as it may, since the entitlement of the petitioner has been described in the order as "admissible subsistence allowance", it is not necessary to go into this aspect further. 8. As regards the third period i.e. 15.11.2000 to 28.1.2002 the petitioner was posted in the State of Jharkhand. In view of the provisions of Section 74 of the Bihar Re-organisation Act, his claim, has to be determined by the authorities of the Jharkhand State. 9. in the above premises, the order of the DGP Bihar dated 11.11.2003 cannot be said to be erroneous or arbitrary and in the circumstances, I am satisfied that the order of this Court has been complied with. 10. Before I part with this case it may be clarified that any observation made in this order would not stand in the way of the petitioner in his defence which he may take, should such occasion arise, in Departmental Proceeding nos. 126/2000 and 205/2000 before the concerned authorities. 11. in the result, the MJC stands dismissed.