JUDGMENT : Heard Mr. A. De, learned counsel appearing for the petitioner as well as Mr. A. Roy Barman, learned CGC appearing for the respondents. 2. This is the second round of writ petition by the petitioner. The facts in this writ petition are mostly admitted. While the petitioner was working as a Constable in the 9th Battalion CRPF, a departmental proceeding was launched against him on 13.10.1997 on the following two charges: “CHARGE-I WHEREAS No.861242509 Constable Dilip Kumar Biswas, E/9 Bn. CRPF who was deployed as attended duty in Unit Hospital along with Head Constable Raghuraj Singh on 21-8-97 at morning 6:00 hours without seeking permission from the competent officer or giving any information, be became absconder from the camp which is against the permanent order of the camp and as full disobedience. Therefore, which is punishable under the provision of C.R.P.F. Act, 1949 of Section 11(1) being a member of Force. CHARGE-II WHEREAS No.861242509 Constable Dilip Kumar Biswas, E/9 Bn. CRPF who was deployed as attended duty in Unit Hospital with No.650120307, Head Constable Raghuraj Singh, E/9BN CRPF on 21-8-97 at morning 6:00 hours without seeking permission from the competent authority or given any information he went out from the camp and became absconder which is against the permanent order and on 07:30 hours entered into the Khumpui School cum Hostel, Radhapur Academy, he closed the mouth of a very little female baby and tried to kidnap her. Fortunately once cooker lady and other students made alarm and caught by the mistress of school and other civilians of the locality and thereafter he was handed over to the Civil Police under Jirania Police Station. For the said act being an armed force member became absconder from the camp and also entered into the School without authority which is against the act of discipline and the said act is an offence as per the provisions of CRPF Act, 1949 of Section 11(1) become dis-obedience being a member of force as per the aforesaid section of the said Act.” 3. The charges being disputed by the petitioner were inquired by the 2nd Commanding Officer of the 9th Battalion, CRPF [Sri R.L. Meena]. On enquiry, he submitted the report holding that the charges are proved. The charges being disputed by the petitioner were inquired by the 2nd Commanding Officer of the 9th Battalion, CRPF [Sri R.L. Meena]. On enquiry, he submitted the report holding that the charges are proved. Having considered the said enquiry report, by the order dated 16.01.1998 the Commandant, 9th Battalion, CRPF dismissed the petitioner from the service in exercise of the power provided by Section 11 of the Central Reserve Police Force Act, 1949 read with Rule 27 of the Central Reserve Police Force Rules, 1955. The said dismissal order was challenged by the petitioner by filing the previous writ petition being W.P.(C) No.613 of 1999 [renumbered as W.P.(C) No.167 of 2010]. The said writ petitioner was disposed of by the judgment and order dated 16.06.2010 [Annexure-A to the writ petition] holding that the order of penalty dated 16.01.1998 [Annexure-E to that writ petition] passed by the Commandant, 9th Battalion CRPF cannot be sustained wholly inasmuch as the penalty that was imposed on the petitioner was disproportionate. Thus, the Disciplinary Authority was ordered to consider any other lesser penalty except removal and/or dismissal from service. It was further directed that the reconsideration of penalty shall be made within a period of 8(eight) months from the day of the said judgment and order. As corollary to such order, the further direction was made on the respondents as under: “The reconsideration on the nature of penalty be made within a period of 8(eight) weeks” from today. Appropriate orders on the back wages payable for the period since the date of his dismissal till the petitioner is taken back into service, may also be passed as per the Rules applicable.” 4. In terms of the said judgment and order dated 16.06.2010, the Disciplinary Authority, i.e. the Commandant, 9th Battalion CRPF has passed the fresh penalty of reduction to the lowest stage in the time scale of pay of Constable/GD in CRPF. By same order dated 25.09.2010, it had been further observed that the petitioner was not exonerated from the charges fully and hence the intervening period from the date of dismissal i.e. 17.01.1998 to the date of re-instatement may be treated as “dies-non” meaning that period will be treated as NQS for all purpose of service and on the principle of “no work no pay”, he will not get any pay & allowances for such period. However, the intervening period will not be treated as break in service and condoned for the purpose of pension under rule-25 of CCS(Pension) Rule-1972. 5. Mr. A. De, learned counsel appearing for the petitioner has submitted that when the petitioner has been imposed with the penalty of reduction to the lowest stage in the time scale of pay of Constable/GD in CRPF, how the financial benefit of the entire period from the day of dismissal to the date of reinstatement can be forfeited by the authority? Mr. De, learned counsel appearing for the petitioner has further submitted that for issuance of the dismissal order the petitioner was prevented from serving the 9th Battalion, CRPF as the Constable and hence no lapse or failure can be attributed to the petitioner. Thus the said order by refusing to make payment of the back wage is grossly arbitrary and requires intervention from this court. 6. From the other side, Mr. A. Roy Barman, learned CGC appearing for the respondents has submitted that in lieu of dismissal from the service, the Commandant, 9th Battalion CRPF, the Disciplinary Authority has awarded a lesser punishment by reducing the petitioner’s pay to the lowest stage in the time scale of pay of the Constable/GD. This is the substantive penalty and consequence shall therefore be followed. As the petitioner was prevented by the order of dismissal, the petitioner cannot be allowed to claim any back wage for that period when he was not at all serving in any capacity. Mr. Roy Barman, learned CGC appearing for the respondents has further submitted that on making due consideration on this aspect, the Disciplinary Authority has directed not to pay any back wages to the petitioner. The order dated 25.09.2010 by which the lesser punishment was issued, was also challenged by the petitioner by filing an appeal to the Deputy Inspector General of Police, 1st Range, C.R.P.F, Ajmer, but the said appeal was also dismissed. In terms of the judgment and order dated 16.06.2010 delivered in W.P.(C) No.613 of 1999 [renumbered as W.P.(C) No.167 of 2010], it is stated in the order dated 25.09.2010 as under: “The petitioner has been awarded punishment of reduction to lowest stage in the time of scale of pay of Constable/GD in CRPF. In terms of the judgment and order dated 16.06.2010 delivered in W.P.(C) No.613 of 1999 [renumbered as W.P.(C) No.167 of 2010], it is stated in the order dated 25.09.2010 as under: “The petitioner has been awarded punishment of reduction to lowest stage in the time of scale of pay of Constable/GD in CRPF. The authority also has awarded another punishment to the petitioner that, Since the Court has ordered reinstatement of individual on the ground that, penalty was far in excess of what would have been reasonable in the circumstances of the case and ordered to considered another lesser punishment thus the individual is not exonerated of the charges fully, hence, the intervening period from the date of dismissal i.e. 17/01/1998 to the date of reinstatement may be treated as “dies non” i.e. is will be treated as NQS for all purpose of service and on the principle of “no work no pay”, he will not get any pay and allowances for such period. However, the intervening period will not be treated as break in service and condoned for the purpose of pension under rule 25 of the CCS (Pension) Rules 1972.” 7. The admitted fact is that the petitioner did not challenge the judgment and order dated 16.06.2010 and thereby acceded to the finding of delinquency as returned by the said judgment and order. Hence this court cannot reopen the decision as to delinquency of the petitioner. The matter was remitted to the Disciplinary Authority for a limited purpose, not relating to finding of delinquency for awarding a lesser penalty as in the judgment and order dated 16.06.2010, the Gauhati High Court found that the penalty as imposed on the petitioner was grossly disproportionate. On fresh consideration, the impugned order dated 25.09.2010 has been passed, which is now under challenge in this petition. The solitary question that emerges for consideration to this court is, whether the entire back wages can be taken away by the respondents when no fault or foul play can be attributed to the petitioner inasmuch as the petitioner was dismissed from the service by the order dated 17.01.1998. The said absence cannot be attributed to the petitioner as the petitioner was prevented by the said dismissal order dated 17.01.1998. Now the dismissal order has been recalled on fresh consideration. The said absence cannot be attributed to the petitioner as the petitioner was prevented by the said dismissal order dated 17.01.1998. Now the dismissal order has been recalled on fresh consideration. As the penalty has been converted to reduction of the pay to the lowest stage of the time scale for Constable/GD in CRPF whether the back wages of the petitioner can be taken in such circumstances? 8. According to this court since the petitioner cannot be faulted for the absence during the period from 17.01.1998 to the day of reinstatement, the said period cannot be declared as “dies-non”. The construct of “dies-non” emerges from willful absence of the person and such absence is so deliberate that is usually refused to be regularized by leave. Furthermore, the respondents have protected the continuity allowing to add the past service without the effect of forfeiture. Refusing to pay the back wages, according to the court, is entirely uncalled for, when this court has observed that the petitioner has also been acquitted from the criminal charge framed under Section 365/511 on the similar allegation. Thus that part of the penalty is interfered with as else it would create serious prejudice to the petitioner. Thus the respondents are directed to pay the petitioner’s back wage in the reduced pay which has been caused by the impugned order dated 25.09.2010 for the period from 17.01.1998 till the day of the re-instatement of the petitioner. Such arrear shall be paid by the respondents within a period of 3(three) months when the petitioner shall submit a copy of this order. Having observed thus, this writ petition stands partly allowed. There shall be no order as to costs.