Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 1112 (JHR)

Dhiraj Kumar v. State Of Jharkhand

2017-07-13

S.N.PATHAK

body2017
JUDGMENT S.N. Pathak, J. - The petitioner has approached this Court with a prayer for payment of full salary for the period, he remained out of service I.e 13.7.2007 to 5.7.2010 as the petitioner has already been reinstated in the service after quashment of the order of dismissal. Factual Matrix : 2. It is a case of the petitioner that while he was working as a constable No. 304 at JAP6 Jamshedpur, the Commandant JAP6 vide order dated 12.7.2007 issued Force order No. 397/07 discharged the petitioner from the services of the Constable. Being aggrieved by the said order the petitioner moved before the Higher Authorities. The order of discharge was not interfered by the Higher Authorities and aggrieved by the same, the petitioner approached this Court challenging the discharge affirmed by the Higher Authorities. Petitioner moved this Court vide W.P.S No. 4478 of 2008 and this Court vide order dated 19.02.2010 was pleased to quash the order of dismissal on the ground that the petitioner was not afforded opportunity of hearing neither charge sheet was issued to him nor any proceeding was initiated. The petitioner was dismissed only on the ground that allegations were levelled against him in the FIR. Hon''ble Court held that merely on the allegations levelled in the FIR, it cannot be ground of dismissal and, as such, the order of discharge/dismissal was quashed and set aside by this Court and the writ petition was allowed. On the strength of the aforesaid order the petitioner approached before Commandant JAP-6 for reinstatement into the services. Though, the petitioner was reinstated into service and he joined the post of constable on 5.7.2010 but the benefits of order of quashment of the dismissal was not extended to the petitioner. On the representation of the petitioner for acceptance of his joining, the matter was referred to Higher Authorities by the Commandant regarding payment of full salary for the period, he remained out of service i.e 13.7.2007 to 5.7.2010. On that clarification the Memo No. 1536 dated 13.12.2010 was issued observing therein that the petitioner is not entitled for any salary of the said period on the ground that ''no work no pay''. Though, the said order has not been challenged in this writ petition as it was never served to the petitioner. On that clarification the Memo No. 1536 dated 13.12.2010 was issued observing therein that the petitioner is not entitled for any salary of the said period on the ground that ''no work no pay''. Though, the said order has not been challenged in this writ petition as it was never served to the petitioner. The petitioner has approached this Court with a prayer for payment of salary for the period he remained out of service as because he was discharged from the services. 3. Mr. Pradip Kumar, learned counsel for the petitioner argues that the petitioner is entitled to get salary of the period he was out of service as the absence was not unauthorized rather due to fault of the respondent authorities as his services were terminated/discharged on erroneous grounds which were not tenable in the eyes of law. Learned counsel submits that the said contention has been affirmed by this Court holding therein that when order of discharge is itself illegal and not sustainable in the eyes of law the employee is entitled for all the consequential benefits. As a result of the quashment of the said order of discharge, the petitioner when reinstated in service has been denied benefit of salary of the said period for which he is entitled in accordance with law 4. Per contra, counter affidavit has been filed. Ms. Amrita Kumari, learned counsel for the respondents submits that as a result of the quashment of the order of discharge, the petitioner has been reinstated into services but there was no any order for payment of salary by this Court and even the respondent authorities have rejected the claim of petitioner for payment of salary, the petitioner was rightly reinstated into services without any benefit of salary and, as such there is no illegality in the order. The respondent authorities has rightly turned down/rejected the case of petitioner regarding the payment of salary. Learned counsel for the respondents submits that in catena of decisions, the Hon''ble Court has held that petitioner is not entitled to get any salary on the ground of no work no pay. In order to strengthen her argument, the learned counsel relies upon the order of Division Bench of this Hon''ble Court reported in 2016 (3) JBCJ in the case of Pawan Kumar Singh v. Makhu Singh . 5. In order to strengthen her argument, the learned counsel relies upon the order of Division Bench of this Hon''ble Court reported in 2016 (3) JBCJ in the case of Pawan Kumar Singh v. Makhu Singh . 5. Be that as it may, the petitioner was thrown out of service having no fault on his part only because of the order of discharge which has been found to be illegal and arbitrary and not sustainable in the eyes of law. There is no occasion why the petitioner will not be benefited with the salary for the period he remained out of service. The Hon''ble Apex Court in case of G.T.LAD has held that when the order of dismissal/discharge has been quashed the petitioner is entitled for salary for the period from the date of dismissal to the date of reinstatement. The said decision of the Hon''ble Apex Court has been taken into consideration by this Hon''ble Court in case of Mahendra Harizan v. State of Jharkhand reported in (2006) 2 JCR 111 . This court is of the same view that the petitioner is entitled for payment of salary for the aforesaid period when he remained out of service. In view of the settled principles of law, Guidelines, Rules and judicial pronouncement Memo No. 1536 dated 13.12.2010 annexed with the counter affidavit is hereby quashed and set aside, I hereby direct the respondent No. 3, D.I.G. of Police, Jharkhand Armed Police, Jagarnathpur, Ranchi to release the entire salary for the period the petitioner remained out of service preferably within a period of six weeks from the date of receipt of copy of this order. 6. Resultantly, the writ petition stands allowed.