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2013 DIGILAW 534 (JHR)

Mundrika Yadav v. State of Jharkhand

2013-04-22

APARESH KUMAR SINGH

body2013
Order Heard learned counsel for the parties. 2. The petitioner seeks direction upon the respondents for full salary for the period of suspension from 4.10.1999 to 21.12.2001 and also salary for the period from 1.1.2002 to 2.11.2003 during which period he remained out of service on account of his termination at the hands of the respondent-employer. 3. The petitioner was posted as a constable in Jharkhand Armed Police, Hazaribagh. An FIR was registered against unknown persons on 19.8.1998 being Hazaribagh Sadar P.S. Case No. 350 of 1998 under Section 354 of the Indian Penal Code in which he has been consequently charge-sheeted under Sections 376 and 511 of the Indian Penal Code, The petitioner was placed under suspension on 4.10.1999 and on conclusion, of the departmental proceeding, he was terminated on 25.12.2001 in view of the involvement in the said criminal case. The petitioner had been placed under suspension under contemplation of departmental proceeding on 4.10.1999. Eventually, he was however, acquitted of the charges vide judgment dated 25.4.2003, Annexure-3, passed by the Additional Sessions Judge, Fast Track Court No.-VI, Hazaribagh. On his request for reinstatement upon acquittal, the order of termination was revoked by the Deputy Inspector General of Police (Headquarters), Ranchi vide Annexure-3 dated 25.9.2003. He made a representation for payment of the full salary of this period of suspension as also for the full back wages for the period he remained out of service which has been rejected vide order dated 2.4.2004 Annexure-6 on the principle of "No Work No Pay" for the period he remained out of service and the said period was adjusted as extraordinary leave in the service career of the petitioner. 4. The petitioner is aggrieved as he has not been granted full salary and back wages for the aforesaid period though his termination was revoked and he has submitted his joining after order passed by the Commandant, Jharkhand Armed Police-7, Hazaribagh on 13.10.2003, Annexure-4. 5. Learned counsel for the respondents tried to justify the stand of the respondents on the plea that the petitioner was dismissed from service after giving ample opportunity to defend himself for the charges of misconduct related to the criminal case instituted against him. The respondents were not responsible for conduct of the petitioner. 5. Learned counsel for the respondents tried to justify the stand of the respondents on the plea that the petitioner was dismissed from service after giving ample opportunity to defend himself for the charges of misconduct related to the criminal case instituted against him. The respondents were not responsible for conduct of the petitioner. When he has been acquitted in the criminal case, thereafter the respondents have revoked the order of termination but on the principle that the employer had not availed the benefit of the services during the period of termination as he remained out of service, the respondents are not responsible to pay salary to the petitioner for the said period. 6. Learned counsel for the petitioner has, however, submitted that the respondents should have taken a decision in respect of the salary for the period of suspension in view of the Rule 97(2) of the Jharkhand Service Code. 7. I have heard learned counsel for the parties and have gone through the relevant materials on record. The present case is one where the petitioner had been proceeded against in a criminal case registered at the instance of 3rd party which formed the basis of departmental proceeding by his employer-the present respondent for the charges of misconduct. The departmental proceeding was concluded after adequate opportunity given to the petitioner before his dismissal from service on account of such established charges. The petitioner remained under suspension during the departmental proceeding and thereafter on his acquittal, the respondents considered the changed circumstances and revoked the order of his termination vide Annexure-3 dated 25.9.2003. However, the plea of the petitioner for full salary for the period he remained out of service on such termination cannot be accepted in view of the fact that the criminal case was not instituted on the behest of the employer i.e. the respondents. On account of such criminal case, and consequent dismissal of his services on established charges of misconduct, the employer could not avail the benefit of the services of the employee. In short, the petitioner did not work for the said period he claims full salary from the employer. The employer has, however, taken a lenient view and regularized his period of absence by granting extraordinary leave on his reinstatement after his acquittal. In short, the petitioner did not work for the said period he claims full salary from the employer. The employer has, however, taken a lenient view and regularized his period of absence by granting extraordinary leave on his reinstatement after his acquittal. In such circumstances, therefore, the petitioner's claim for salary for the period he remained out of service is not sustainable in the law as well as on facts and no fault can be found with the stand of the respondents. Since the petitioner had been facing suspension for the same charges during the said period which led to his dismissal, on the same ground, the petitioner cannot claim to be entitled to the full salary for the said period of his suspension. The respondents, on the other hand, on his representation, have taken a stand as contained in Annexure-6, which is not contrary to law and therefore, no ground has been made by the petitioner for issuance of any such direction upon the respondents. Moreover, the order contained at Annexure-6 dated 2.4.2004 has not been challenged by the petitioner either in this writ petition. 8. Accordingly, this writ petition is dismissed.