IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.9639 of 2016

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Ram Lakhan Prasad Singh Son of Late Chhotan Singh, Resident of Navnit

Colony, Hanuman Nagar, Kankarbagh, Patna-20, P.S.- Patrakar Nagar,

District- Patna.

... ... Petitioner/s

Versus

1.The State of Bihar

2.The Commissioner and Secretary, Water Resources Department,

Government of Bihar.

3.The Secretary, Finance Department, Government of Bihar.

4.The Secretary, Appointment Government of Bihar.

5.The Secretary, Law Department, Government of Bihar.

6.The Joint Secretary, Management Water Resources Department Irrigation

Building, Bihar, Patna.

7.The Accountant General, Bihar, Veerchand Patel Path, Patna.

8.The Senior Accounts Officer, Office of the Accountant General, A and E

Veerchand Patel Path, Patna.

... ... Respondent/s

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Appearance :

For the Petitioner: Mr. Sunil Kumar, Advocate

For the State : Mr. Akash Raj, A.C. to G.A.5

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CORAM: HONOURABLE MR. JUSTICE RITESH KUMAR

ORAL JUDGMENT

Date : 03-08-2026

Heard the learned counsel for the petitioner and

the learned counsel appearing on behalf of the State.

2. The present writ petition has been filed for the

following reliefs:

“I. For a direction to the respondent

to make payment of his salary for the period from

01.12.1999 to 27.06.2000 with interest and

consequential benefits thereon. During the said

period the petitioner remained in jail custody in

connection with Kadamkuan P.S. Case

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No.650/1999 under Section 302, Sessions Trial

No. 242/2005. The said criminal case ended in

acquittal.

(ii) And also for any other

relief/reliefs, order/orders, direction/directions for

which the petitioner will be entitled in the eye of

law as well as in the facts of the case.”

3. Vide order dated 01.07.2025 passed in this case,

I.A. No.02/2025 was allowed and the prayer made therein was

made part and parcel of the present writ petition. The same are

re-produced hereinbelow:

“1. For quashing of order bearing

memo No. - 2510/ Patna dated 27.09.2016

(Annexure-8 of this I.A. Petition) passed by Joint

Secretary (Management), Department of Water

Resources, Govt. of Bihar, Patna by which custody

period of 210 days of the petitioner has been

treated as extra ordinary leave.”

SUBMISSIONS ON BEHALF OF THE PETITIONER

4. The learned counsel for the petitioner submits

that the petitioner, while working in the services of the State

Government, was falsely implicated in a criminal case bearing

Kadamkuan P.S. Case No.650 of 1999 under Section 302 of

the Indian Penal Code, which gave rise to Sessions Trial

No.242 of 2005. The petitioner was apprehended and was sent

to judicial custody on 01.12.1999. He remained in custody till

27.06.2000. Subsequently, the criminal case bearing Sessions

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Trial No.242 of 2005, culminated in acquittal of the petitioner

vide judgment dated 06.07.2010 passed by the learned

Additional District & Sessions Judge-14, Patna. The learned

counsel for the petitioner submits that thereafter the petitioner

filed representation before the authorities concerned and since

the petitioner already superannuated during pendency of the

criminal case on 31.01.2004, he requested the authorities

concerned to make payment of salary for the period he

remained in custody i.e. 01.12.1999 to 27.06.2000. It has been

submitted that the petitioner filed a representation on

04.02.2015 before the Joint Secretary of the Water Resources

Department, however no decision was taken on the

representation filed by the petitioner, therefore the petitioner

filed the present writ petition. He submits that during pendency

of the writ petition, the respondent authorities vide order

contained in Memo No.2510 dated 27.09.2016 issued under

the signature of the Joint Secretary (Management), Water

Resources Department, Government of Bihar, Patna, gave two

options to the petitioner, either to treat the said period i.e.

01.12.1999 to 27.06.2000 towards extra ordinary leave or to

calculate the said period of 210 days towards earned leave

which was remaining in the account of the petitioner for 204

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days. However, the petitioner refused to accept the options

given by the department, therefore by the impugned order the

period during which the petitioner was under custody for 210

days was approved as extra ordinary leave. The learned

counsel for the petitioner submits that Rule 178 of the Bihar

Board’s Miscellaneous Rule, 1958 provides that when any

servant of Government is committed to prison, either for debt

or on a criminal charge, he is to be considered as under

suspension from the date of his arrest and not allowed to draw

any pay until the termination of the proceedings against him,

when an adjustment of his allowances will be made according

to the circumstances of the case, the full amount being given

only in the event of the officer being acquitted of blame, or, if

the imprisonment was for debt, of being proved that the

officer’s liability arose from circumstances beyond his control.

He submits that in terms of Rule 178, the petitioner was

entitled for entire salary for the period during which he

remained in custody. He further submits that in terms of Rule

99 of the Bihar Service Code which provides that a servant of

Government against whom proceedings have been taken either

for his arrest for debt or on a criminal charge or who is

detained under any law providing for preventive detention

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should be considered as under suspension for any periods

during which he is detained in custody or is under going

imprisonment, and not allowed to draw any pay and

allowances (other than any subsistence grant that may be

granted in accordance with principles laid down in Rule 96)

for such periods, until the termination of the proceedings taken

against him or until he is released from detention and allowed

to rejoin his duties as the case may be. Rule 99 further

provides that an adjustment on his allowances for such period

should therefore, be made according to the circumstances of

the case. The full amount being given only in the event of the

Government servant being acquitted of blame or (if the

proceeding taken against him were for his arrest for debt) of its

being proved that the Government servant’s liability arose

from circumstances beyond his control or detention, being held

by any competent authority to be justified. The learned counsel

for the petitioner submits that in terms of Rule 99 of the Bihar

Service Code and Rule 178 of the Bihar Board’s

Miscellaneous Rules, 1958, the petitioner is entitled for

payment of entire salary for the period from 01.12.1999 to

27.06.2000 which he spent in custody. The learned counsel for

the petitioner refers to an order dated 08.10.2004 passed in

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C.W.J.C. No.1386 of 2002 (Muneshwar Mahto v/s The

State of Bihar & Ors.) wherein in similar circumstances

while considering Rule 99 of the Bihar Service Code and Rule

178 of the Bihar Board’s Miscellaneous Rules, the Hon’ble

Single Judge proceeded to allow the writ petition and was

pleased to direct for payment of salary for the said period to

the petitioner.

SUBMISSIONS ON BEHALF OF THE STATE

5. Per contra, the learned counsel appearing on

behalf of the State submits that the petitioner remained in

custody from 01.12.1999 to 27.06.2000 for his implication in a

criminal act, which was not related to his duties and for the

custody period the petitioner undergone, the department was

forced not to take any work from him and therefore for the

fault on the part of the petitioner, the respondent State cannot

be fastened with a direction to make payment of salary to the

petitioner.

CONSIDERATION

6. Having considered the rival submissions and

after going through the records, it is not in dispute that the

petitioner was made an accused in a criminal case bearing

Kadamkuan P.S. Case No.650 of 1999 instituted under Section

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302 of the Indian Penal Code, which gave rise to Sessions Trial

No.242 of 2005. The petitioner was apprehended and was sent

to judicial custody on 01.12.1999. He was released on bail on

27.06.2000. Subsequently the petitioner was acquitted in the

said criminal case bearing Sessions Trial No.242 of 2005 vide

order dated 06.07.2010 passed by the learned Additional

District & Sessions Judge-14, Patna and thereafter the

petitioner filed different representations before the respondent

authorities for payment of his salary for the said period.

Finally the petitioner was given two options, either to accept

the period towards extra ordinary leave or to get adjusted the

period under earned leave, however the petitioner chose not to

accept any of the options given by the department and

ultimately the department on its own treated the period, spent

by the petitioner behind the bar, towards extra ordinary leave.

Rule 99 and 100 of the Bihar Service Code are substantially in

para materia with Rule 9(2) and 9(3) of the CCA Rules, 2005.

Custody leads to a deemed suspension automatically. After

release from custody fresh orders of suspension may be passed

if the Governments consider it fit. Otherwise the suspension

comes to an end on release from custody and acceptance of

joining. For consideration of the case of the petitioner for grant

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of salary for the period he remained under custody, this Court

feels it apt to rely on certain judgments/orders, passed by this

Hon’ble Court as well as the Hon’ble Supreme Court of India.

7. A Hon’ble Single Judge of this Hon’ble Court

vide order dated 24.01.2012 passed in C.W.J.C. No.22827 of

2011 (Shridhar Prasad v/s The State of Bihar & Ors.) has

held that suspension does not result in severance of the master

servant relationship. The law provides for payment of

subsistence allowance during the period of suspension. Rule

10 of the CCA Rules provide the manner in which the

subsistence allowance has to be paid. Rule 11 (3) deals with

the period of suspension when it is found to be wholly

unjustified. In other cases the disciplinary authority is required

to pass appropriate orders at the final stage with regard to the

period of suspension. It therefore necessarily contemplates

holding of a departmental proceeding. The logic and reasoning

would be that the delinquent for no fault of his and for no

justifiable reason was wrongly prevented by the department

from performing duties. The cause of action then arises

because of the conduct of the department unable to justify the

suspension. If the suspension is occasioned not by the action of

the department, but by operation of law leading to custody, the

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delinquent is not prevented from working by the department

wrongly but is prevented from working by operation of the

law. He however remains entitled to subsistence allowance.

The issue of his suspension and his right to salary for this

period of suspension when he was in custody cannot be

intermingled. The consequence and the benefits that may flow

shall depend upon the reason of the suspension. If the

petitioner was taken into custody in pursuance of a criminal

case, the department did not prevent him from working, his

custody did so. The custody was not relevant to the department

but arose out of the operation of the law which mandated an

accused to be kept in custody. The principle of ‘no work no

pay’ shall apply here with full force. It was the custody by

enforcement of law which prevented the petitioner from

working.

8. The Hon’ble Supreme Court of India in a case

reported in (2005) 8 SCC 747 (Baldeo Singh v. Union of

India), wherein similar question was there, after considering

the factual aspect in paragraph no.7, has recorded as under:-

“7. As the factual position noted

clearly indicates, the appellant was not in actual

service for the period he was in custody. Merely

because there has been an acquittal does not

automatically entitle him to get salary for the

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period concerned. This is more so, on the logic of

no work no pay. It is to be noted that the appellant

was terminated from service because of the

conviction. Effect of the same does not get diluted

because of subsequent acquittal for the purpose of

counting service. The aforesaid position was

clearly stated in Ranchhodji Chaturji Thakore v.

Supdt. Engineer, Gujarat Electricity Board.”

9. The Hon’ble Supreme Court of India in a case

reported in (2004) 1 SCC 121 (Union of India & Ors. v.

Jaipal Singh), wherein similar question was there before the

Hon’ble Supreme Court of India, in paragraph no.4 has held as

under:

“4. On a careful consideration of the

matter and the materials on record, including the

judgment and orders brought to our notice, we are

of the view that it is well accepted that an order

rejecting a special leave petition at the threshold

without detailed reasons therefor does not

constitute any declaration of law by this Court or

constitute a binding precedent. Per contra, the

decision relied upon by the appellant is one on

merits and for reasons specifically recorded

therefor it operates as a binding precedent as well.

On going through the same, we are in respectful

agreement with the view taken in Ranchhodji. If

prosecution, which ultimately resulted in acquittal

of the person concerned was at the behest of or by

the department itself, perhaps different

considerations may arise. On the other hand, if as a

citizen the employee or a public servant got

involved in a criminal case and if after initial

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conviction by the trial court, he gets acquittal on

appeal subsequently, the department cannot in any

manner be found fault with for having kept him out

of service, since the law obliges a person convicted

of an offence to be so kept out and not to be

retained in service. Consequently, the reasons

given in the decision relied upon, for the appellants

are not only convincing but are in consonance with

reasonableness as well. Though exception taken to

that part of the order directing reinstatement cannot

be sustained and the respondent has to be

reinstated in service, for the reason that the earlier

discharge was on account of those criminal

proceedings and conviction only, the appellants are

well within their rights to deny back wages to the

respondent for the period he was not in service.

The appellants cannot be made liable to pay for the

period for which they could not avail of the

services of the respondent. The High Court, in our

view, committed a grave error, in allowing back

wages also, without adverting to all such relevant

aspects and considerations. Consequently, the

order of the High Court insofar as it directed

payment of back wages is liable to be and is

hereby set aside.”

10. The Hon’ble Supreme Court of India, while

considering similar question in a case reported in (1996) 11

SCC 603 (Ranchhodji Chaturji Thakore v. Superintendent

Engineer, Gujarat Electricity Board, Himmatnagar

(Gujrat) & Anr.), in paragraph no.3 has held as under:

“3. The reinstatement of the

petitioner into the service has already been ordered

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by the High Court. The only question is whether he

is entitled to back wages. It was his conduct of

involving himself in the crime that was taken into

account for his not being in service of the

respondent. Consequent upon his acquittal, he is

entitled to reinstatement for the reason that his

service was terminated on the basis of the

conviction by operation of proviso to the statutory

rules applicable to the situation. The question of

back wages would be considered only if the

respondents have taken action by way of

disciplinary proceedings and the action was found

to be unsustainable in law and he was unlawfully

prevented from discharging the duties. In that

context, his conduct becomes relevant. Each case

requires to be considered in its own backdrop. In

this case, since the petitioner had involved himself

in a crime, though he was later acquitted, he had

disabled himself from rendering the service on

account of conviction and incarceration in jail.

Under these circumstances, the petitioner is not

entitled to payment of back wages. The learned

Single Judge and the Division Bench have not

committed any error of law warranting

interference.”

11. A Hon’ble Division Bench of this Court in a

judgment reported in 2023 (1) PLJR 855 (Sheo Nandan

Singh vs. The State of Bihar & Ors.) in paragraph nos.8 to

10 has held as under:

“8. Dismissal order is based on the

conviction and it is not outcome of departmental

inquiry. If the conviction order is set aside in a

criminal appeal, in that event, the appellant is

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entitled to regulate the services depending upon the

facts of the case. In the present case, inadvertently

learned Single Judge has not set aside the order of

dismissal dated 31.12.2015. Accordingly, we

proceeded to set aside the order of dismissal dated

31.12.2015.

9. Appellant Sheo Nandan Singh is

not entitled to monetary benefits from the date of

dismissal, i.e., from 31.12.2015 to 31st January,

2017 as he has not discharged the duties of the

post. Further, it an employee is convicted and

acquitted later the intervening period cannot be

regulated as a duty. In other words, tax-payer

money cannot be paid to an accused. No doubt he

has been acquitted in both the criminal proceedings

on 02.08.2017 and 13.02.2019. At the same time,

during the intervening period from the date of

dismissal, i.e., dated 31.12.2015 till 13.02.2019, he

was a convicted person.

10. Int he light of these facts and

circumstances, order of the learned Single Judge

dated 02.05.2019 passed in CWJC No. 3965 of

2016 stands modified. The appellant-Sheo Nandan

Singh is entitled to only monetary benefits from

1st February, 2017 with reference to the date that

had he been in service he would have attained the

age of superannuation and retired from service on

31st January, 2017. The intervening period from

31.12.2015 to 31.01.2017 be counted for the

purpose of fixation of pension only. He is entitled

to arrears of pension from 1st February, 2017 till

date the same shall be calculated and disbursed in

favour of him within a period of three months from

the date of receipt of this order.”

12. Having considered the decisions of the

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Hon’ble Supreme Court of India as well as this Hon’ble Court,

this Court is of the considered opinion that the petitioner was

in custody on account of an act which does not relate to his

duties and accordingly the principle of ‘no work no pay’ shall

apply here. It was the custody by the enforcement of law

which prevented the petitioner from working and the

respondent authorities were prevented from taking work from

the petitioner on account of him being in custody, therefore the

respondent authorities cannot be saddled with a direction for

making payment to the petitioner for the fault, which cannot be

attributed to the respondent authorities. So far the order i.e.

order dated 08.10.2004 passed in the case of Muneshwar

Mahto (supra) relied upon by the learned counsel for the

petitioner is concerned, it appears that while allowing the writ

petition, the Hon’ble Single Judge did not take into

consideration the judgments referred to in this order passed by

the Hon’ble Supreme Court of India in similar nature of cases,

therefore, the judgment relied upon by the learned counsel for

the petitioner is not applicable here in view of the judgments

of the Hon’ble Supreme Court of India as well as of this

Hon’ble Court, referred to above.

13. In view of the above, this Court does not find

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any merit in the writ petition and accordingly, the same is

dismissed.

14. Pending application(s), if any, shall also stand

disposed of.

Sanjay/-

(Ritesh Kumar, J.)

AFR/NAFR NAFR

CAV DATE NA

Uploading Date 05.08.2026

Transmission Date NA