RAM KISHORE SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Though these two writ applications were heard on different dates, but are being dealt with and disposed of together by a common order because of the reason that the cases are common and identical. Since the order is common, petitioners of the cases hereinafter shall be referred to as petitioner No. 1 and petitioner No. 2, as and when necessary. The two petitioners were in the service of respondents as constables and on 6.6.2002 were posted as guard in Mishrapur Police Camp under Bath police station of Bhagalpur district. The case against them, in short, is that at about 10.00 in the night both of them, along with two Sub-Inspectors, namely, Ramagya Chaudhary and Nawal Kishore Singh, on two motorcycles, went out from the police station through Belari Camp towards Mishrapur Camp and then proceeded further went beyond the territorial jurisdiction of the police station. There at about 2.00 in the night Sub-Inspector Nawal Kishore Singh, with the means of a country made pistol, shot dead Sub-Inspector Ramagya Chaudhary. Though the two petitioners were present there, but they concealed this and suppressed the true facts due to which the investigation and enquiry was hampered. Hence the petitioners were found to have indulged into indiscipline, dereliction of duty, carelessness, etc., and therefore they were suspended. Thereafter separate charges were framed and served upon them and disciplinary proceedings were initiated. Enquiry was held and report was submitted, finding the charges proved. Accordingly, 2nd show cause notice was issued to them and, after considering their reply, they were dismissed from service by separate orders of the Superintendent of Police, Bhagalpur. Petitioners, after exhausting remedies of appeal and memorial, moved this Court in CWJC No. 17483 of 2008 and 17860 of 2008 respectively. Their writ applications were disposed of, by a common order dated 28.1.2013, vide Annexures-3 and 10 respectively with the present writ applications, and, orders passed in their cases on their memorials and appeals, were quashed and the matter was remitted back to the Appellate Authority, i.e., the D.I.G., Bhagalpur, to consider their appeals afresh in the light of the observations therein as well as in the light of settled principles of law, after considering the materials produced by them in support of their pleadings. It was observed that "If the claims of the petitioners were affirmed and the orders of the disciplinary authority are set aside, the appellate authority shall also consider reinstating the petitioners back in service with full salary and other admissible allowances for the period he was kept out of service from the date of their dismissals." After this order was received by the respondent D.I.G., Bhagalpur, notices were issued to the petitioners, they were heard and orders were passed on their appeals and communicated to them by letter dated 14.5.2013, vide Annexures-9 and 11 respectively with their writ applications.

(2.) From the order of the D.I.G. dated 14.5.2013 it appears that, after analysis of facts, the D.I.G. found that though in the criminal trial the trial court had found that in the incident the petitioners had no role to play, but this was not controverted that even though the petitioners had the knowledge of the fact of murder of Sub-Inspector Ramagya Chaudhary by Sub-Inspector Nawal Kishore Singh, they have practiced falsehood hampering the investigation for which also they had been found guilty in the proceeding. He thus found that for this part of the charge the trial court had not given any finding. In the circumstances, the D.I.G. found that the order of dismissal of petitioners was not proportionate to this part of the finding of guilt in the proceeding. Therefore, he set aside the order of their dismissal and passed order of punishment of withholding of their one increment without cumulative effect with their reinstatement in service. However, he denied them payment of salary and allowances of the period between their dismissal and their reinstatement on the principle of "no work no pay" which period was, otherwise, directed to be adjusted against their admissible extraordinary leave. This common order passed by the D.I.G. in the case of both the petitioners has been separately challenged by the petitioners in the present writ applications.

(3.) Learned counsel for the petitioners, who appeared in both the cases, raised solitary issue of inapplicability of principle of "no work no pay" in the cases of petitioners. He submitted that, once, after matter being remitted back by this Court, an order has been passed by the Appellate Authority reinstating the petitioners in service, though with some minor punishment, the same has to relate back to the date of order of their dismissal. Hence, it has to be presumed that the impugned revised order of punishment passed, by the D.I.G., the Appellate Authority, was passed in the preceding (sic--proceeding?) on the date of their dismissal only. Hence, he submitted that since the petitioners had been inflicted with one minor punishment by the impugned order, they could not be penalized again by denial of the salary of the period. In support of this submission, learned counsel for the petitioner placed reliance on the celebrated judgment of the Apex Court in the case of Union of India vs. K.V. Jankiraman, 1991 4 SCC 109He also submitted that this Court, in its earlier order, had made it clear that in case the order of the Disciplinary Authority is set aside, the Appellate Authority had to consider reinstatement of petitioners with full back wages and allowances, which the D.I.G. has failed to do in spite of passing orders of their reinstatement.