Patna High Court CWJC No.20391 of 2018 dt.18-08-2026

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IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.20391 of 2018

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Vivekanand Singh Son of late Balmiki Singh Resident of Village P.O.-

Pyarepur, P.S., Sarmera, District- Nalanda.

... ... Petitioner/s

Versus

1.The State Of Bihar.

2.The Director General of Police, Bihar, Old Secretariat,Patna.

3.The D.I.G. of Police, Military Police, Central Zone, Patna.

4.Commandant, B.M.P. -4, Dumraon, Buxar.

... ... Respondent/s

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Appearance :

For the Petitioner/s: Mr. Ram Hriday Prasad

For the Respondent/s: Mr. Manish Kumar, GP-4

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CORAM: HONOURABLE MR. JUSTICE KUMAR MANISH

CAV JUDGMENT

Date : 18-08-26

1. Heard learned counsel for the petitioner and learned counsel appearing

on behalf of the State-respondents.

2. The present writ application has been filed by the petitioner seeking

quashing of the order dated 09.06.2018 (Annexure-2) passed by the Commandant,

B.M.P.-4, Dumraon, Buxar, whereby salary for the period from 02.07.2013 to

18.01.2018 has been denied by treating the said period as Extraordinary Leave on the

principle of "No Work No Pay", and for a direction upon the respondents to release

salary and all consequential monetary benefits for the said period.

3. Brief facts emerging from the pleadings are that the petitioner was

appointed as a Constable in B.M.P.-10, Patna on 24.02.1986, was subsequently

promoted to the post of Hawaldar and posted in B.M.P.- 4, Dumraon, Buxar. He was

dismissed from service on 02.07.2013.

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The petitioner preferred appeal before the DIG of Police, Military Police,

Central Zone, Patna and memorial having failed, the petitioner approached this Court

by filing C.W.J.C. No.10629 of 2014. This Court, by judgment dated 28.11.2017

(Annexure-1 to this Writ petition), set aside the dismissal order along with the

appellate and memorial orders and remitted the matter to the competent authority to

proceed afresh after furnishing the enquiry report to the petitioner.

In light of the order passed by the Hon'ble High Court, Patna in

C.W.J.C. No. 10699, the Director General of Police, Bihar, Patna, vide Office Memo

No. 253 / 345729 / L.O.-01 dated 27.12.2017, cancelled/set aside the order of the

Disciplinary Authority and the order passed by the Appellate Authority, as well as the

order passed at the Police Headquarters level on the memorial representation, after

due review, and issued orders to reinstate the petitioner into service. Furthermore,

while providing a copy of the Inquiry Officer's opinion, instructions were issued to

obtain the petitioner's statement (defense explanation) and pass an appropriate order

based on the available evidence.

4. In light of the orders of the Hon'ble High Court, Patna, Director

General of Police, Bihar, Patna, a defense explanation was obtained from the

delinquent employee (petitioner), and the witnesses in Departmental Inquiry (D.I.)

No. 07/13 were examined. During the examination, the witnesses of D.I. No. 07/13

did not confirm the incident of verbal abuse and threats to shoot made by the

petitioner. However, a medical examination of the petitioner was conducted regarding

him being in an intoxicated state on the firing butt. The Medical Officer, Bihar

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Military Police-02, Dehri, noted in his prescription that the petitioner was partially

intoxicated. Consuming alcohol while on duty reflects indiscipline on the part of the

petitioner.

Therefore, finding the petitioner guilty of consuming alcohol during

duty, one year's increment was withheld, which was equivalent to two black marks

(cumulative penalties), without having any effect on future salary increments. As a

result of the cancellation of the order of dismissal and the setting aside of the

punishment of dismissal following the order of the Hon'ble High Court, Patna in

C.W.J.C. No. 10629/14, appeal, and memorial representation, the services of the

petitioner were regularized, and the period of dismissal from 02.07.2013 to

18.01.2018 was adjusted as Extraordinary Leave on the principle of “No Work, No

Pay”.

5. Learned counsel appearing on behalf of the petitioner submitted that

once the dismissal order had been set aside by this Court, the petitioner became

entitled to all consequential benefits including salary for the period during which he

remained out of service. It was argued that the petitioner was prevented and

compelled from performing his duties solely because of the illegal dismissal order

passed by the respondents, and therefore, the doctrine of "No Work No Pay" has no

application. Reliance was also placed upon earlier judicial decisions of this Court

passed in CWJC No. 1821 of 2000 (Pramod Kumar Paswan vs. The State of Bihar

& Ors.) and CWJC No. 9499 of 2011 (Jagjiwan Ram vs. The State of Bihar & Ors.)

wherein salary for the dismissal period had been granted after reinstatement.

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6. Per contra, learned Counsel for the State has supported the impugned

order and have submitted that the petitioner was not honourably exonerated of the

allegations. It is contended on behalf of the State that the petitioner had been found

guilty of serious misconduct, namely, remaining under the influence of alcohol while

on duty, abusing superior officers, threatening persons while carrying a machine gun

and that he had a history of several earlier departmental punishments. It is further

submitted on behalf of the Respondent that the earlier judgment of this Court had

merely set aside the dismissal order on procedural grounds and did not direct for

payment of back wages. Therefore, the competent authority rightly treated the

intervening period as Extraordinary Leave and denied salary by applying the settled

principle of "No Work No Pay".

7. Having heard learned counsel for the parties and having perused the

materials on record, the principal issue which falls for consideration is whether the

petitioner, whose dismissal order was set aside and who was subsequently reinstated

in service, is entitled as a matter of right to salary/back wages for the period from

02.07.2013 to 18.01.2018, or whether the respondents were justified in treating the

said period as Extraordinary Leave by applying the principle of "No Work No Pay".

8. The law relating to grant of back wages after reinstatement is well

settled. In J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433, the Hon'ble

Supreme Court categorically held that reinstatement and payment of back wages are

two distinct reliefs, and one does not automatically follow the other. The Court

observed that back wages are not a natural consequence of reinstatement and depend

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upon the facts and circumstances of each case (Paras 17, 18 & 21). Likewise, in U.P.

State Brassware Corporation Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, the

Apex Court held that payment of full back wages is not an inevitable consequence of

setting aside an order of termination and that the relief has to be moulded keeping in

view the principles of justice, equity and good conscience (Paras 41-45).

The Hon'ble Supreme Court in Deepali Gundu Surwase vs. Kranti

Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324, had come out with the

following propositions:

i In cases of wrongful termination of service, reinstatement with

continuity of service and back wages is the normal rule.

iiThe aforesaid rule is subject to the rider that while deciding the

issue of back wages, the Adjudicating Authority or the Court may

take into consideration the length of service of the Employee/

Workman, the nature of misconduct, if any, found proved against

the Employee / Workman, the financial conditions of the

employers and similar other factors.

iiiOrdinarily, an employee or workman whose services are

terminated and who is desirous of getting back wages is required

to either plead or at least make a statement before the

Adjudicating Authority or the Court of firs instance that he / she

was not gainfully employed or was employed on lesser wages. If

the employer wants to avoid payment of full back wages then it

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has to plead and also lead cogent evidence to prove that the

employee / workman was gainfully employed and was getting

wages equal to the wages he / she was drawing prior to the

termination of service. This is so because it settled law that the

burden of proof of the existence of a particular fact lies on the

person who makes a positive averment about its existence. It is

always easier to prove a positive fact that to prove a negative fact.

Therefore, once the employee shows that he was not employed, the

onus lies on the Employer to specifically plead and prove that the

employee was gainfully employed and was getting the same or

substantially similar emoluments.

ivThe cases in which the Labour Court/Industrial Tribunal exercises

power under Section 11-A of the Industrial Disputes Act, 1947 and

finds that even though the enquiry held against the

employee/workman is consistent with the rules of natural justice

and / or certified standing orders, if any, but holds that the

punishment was disproportionate to the misconduct found proved,

then it will have the discretion not to award full back wages.

However, if the Labour Court/Industrial Tribunal finds that the

employee or workman is not at all guilty of any misconduct or that

the employer had foisted a false charge, then there will be ample

justification for award of full back wages.

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v The cases in which the competent Court or Tribunal finds that the

employer has acted in gross violation of the statutory provisions

and/or the principles of natural justice or is guilty of victimizing

the employee or workman, then the concerned Court or Tribunal

will be fully justified in directing payment of full back wages. In

such cases, the superior Courts should not exercise power under

Article 226 or 136 of the Constitution and interfere with the award

passed by the Labour Court, etc., merely because there is a

possibility of forming a different opinion on the entitlement of the

employee/workman to get full back wages or the employer’s

obligation to pay the same. The Courts must always be kept in

view that in the cases of wrongful / illegal termination of service,

the wrongdoer is the employer and sufferer is the

employee/workman and there is no justification to give premium

to the employer of his wrongdoings by relieving him of the burden

to pay to the employee/workman his dues in the form of full back

wages.

viIt would amount to grave injustice to an employee or workman if

he is denied back wages simply because there is long lapse of time

between the termination of his service and finality given to the

order of reinstatement. The Courts should bear in mind that in

most of these cases, the employer is in an advantageous position

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vis-à-vis the employee or workman. He can avail the services of

best legal brain for prolonging the agony of the sufferer, i.e., the

employee or workman, who can ill afford the luxury of spending

money on a lawyer with certain amount of fame.

9. Applying the aforesaid case at hand, it is incumbent upon the

Disciplinary Authority to ascertain the facts and circumstances relating to the actual

position of the delinquent / employee with regards to factors like other gainful

employment, or getting the same or substantially similar emoluments elsewhere. This

can only be done when an opportunity of hearing is provided to the employee.

10. At this juncture, it would be relevant to point out the Rule 12 of the

Bihar Government Servants (CCA) Rules, 2005, which stipulates the following:

(1) When a Government Servant, who has been dismissed,

removed or compulsorily retired, is reinstated as a result of appeal or

would have been so reinstated but for his retirement on superannuation

while under suspension or not, the disciplinary authority shall consider

and pass a specific order.

(a)regarding the pay and allowances to be paid to the

government servant for the period of his absence from duty including the

period of suspension preceding his dismissal, removal, or compulsory

retirement, as the case may be; and

(b)whether or not the said period shall be treated as a

period spent on duty.

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(2)The Government Servant shall, subject to the provisions of

sub-rule (6) be paid the full pay and allowances to which he would have

been entitled, had he not been dismissed, removed or compulsorily

retired or suspended prior to such dismissal, removal or compulsory

retirement, as the case may be, in cases-

(i)where the disciplinary authority is of opinion that the Government

Servant who had been dismissed, removed or compulsorily retired has

been fully exonerated, or

(ii)where the order of dismissal, removal or compulsory retirement from

service is set aside by the appellate authority solely on the ground of

noncompliance of the requirement of these Rules and no further inquiry

is proposed to be held :

Provided that where such authority is of the opinion that the termination

of the proceedings instituted against the Government Servant had been

delayed due to reasons directly attributable to the Government Servant,

it may, after giving him an opportunity to make his representation and

after considering the representation, if any, submitted by him, direct, for

reasons to be recorded in writing, that the Government Servant shall,

subject to the provisions of sub-rule (7), be paid for the period of such

delay, only such proportion of such pay and allowances as it may be

determined by him.

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(3) In a case falling under sub-rule (2), the period of

absence from duty including the period of suspension preceding

dismissal, removal or compulsory retirement, as the case may be, shall

be treated as a period spent on duty for all purposes.

(4) In cases other than those covered by sub-rule (2) of this

Rule the Government Servant shall, subject to the provisions of sub-rule

(6) and (7), be paid such proportion of the full pay and allowances to

which he would have been entitled, had he not been dismissed, removed

or compulsorily retired or suspended prior to such dismissal, removal or

compulsory retirement, as the case may be, as the disciplinary authority

may determine. The disciplinary authority shall determine the

proportion of such payment after giving notice to the Government

Servant of the quantum proposed and after considering the

representation, if any, submitted by him, in that connection within sixty

days from the date on which the notice aforesaid is served on the

Government Servant.

(5) In a case falling under sub-rule (4), the period of

absence from duty including the period of suspension preceding his

dismissal, removal or compulsory retirement, as the case may be, shall

not be treated as a period spent on duty, unless the disciplinary authority

specifically directs that it shall be so treated for any specified purpose:

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Provided that if the Government Servant so represents, such

authority may after consideration, direct that the period of absence from

duty including the period of suspension preceding his dismissal, removal

or compulsory retirement, as the case may be, shall be converted into

leave of any kind due and admissible to the Government Servant.

(6) The payment of allowances under sub-rule (2) or sub-

rule (4) shall be subject to all other conditions under which allowances

are admissible.

(7) The proportion of the full pay and allowances determined

under the proviso to sub-rule (2) or under sub-rule (4) shall neither be

equal to the full pay and allowances nor less than the subsistence

allowance and other allowances admissible under Rule 10, as the case

may be.

(8) Any payment made under this Rule to a Government

Servant on his reinstatement shall be subject to adjustment of the

amount, if any, earned by him through an employment during the period

between the date of removal, dismissal or compulsory retirement, as the

case may be, and the date of reinstatement. Where the pay and

allowances admissible under this Rule are equal to or less than the

amounts earned during such employment elsewhere, nothing shall be

paid to the Government Servant.

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11. On the scrupulous reading of the foregoing provision enshrined in

Rule Sub Rule 1 of Rule 12 of Bihar Government Servants (CCA) Rules, 2005, it

is crystal clear that the authority competent to order reinstatement, is mandated and

conferred with the power to make specific order regarding the payment of back

wages, arrear of salary, allowances, etc. Furthermore, the said rule outlines the

procedure and manner in which an order under this Rule has to be passed.

12. Sub Rule 4 and Sub Rule 5 of Rule 12 categorically states that the

Disciplinary Authority shall determine the proportion of such payment of pay and

allowances for the period of dismissal, removal or compulsory retirement, after

giving notice to the Government Servant, and thereafter Authority shall proceed to

pass a reasoned order for the payment of back wages, pay, or allowances as the case

maybe.

13. It is also imperative to produce Rule 97 of the Bihar Service Code,

which states as follows:

“(1) When a Government Servant who has been dismissed,

removed or suspended, reinstated the authority competent to order

reinstatement shall consider and make specific order –

a. Regarding the pay and allowances to be paid to the

Government Servant for the period of his absence from duty, and

b. Whether or not the said period shall be treated as a period

spent on duty.”

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(2) Where the authority mentioned in sub-rule (1), is of opinion

that the Government servant has been fully exonerated, or in the case of

suspension, that it was wholly unjustified, the Government servant shall be

given full pay and allowance to which he would have been entitled has he not

been dismissed, removed or suspended, as the case may be

(3) In other cases, the Government servant shall be given such

proportion of such pay and allowances as such competent authority may

prescribe: Provided that the payment of allowances under clause (2) or

clause (3) shall be subject to all other conditions under which such

allowance are admissible.

(4) In a case falling under clause (2) the period of absence from

duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under clause (3) the period of absence from

duty shall not be treated as a period spent on duty, unless such competent

authority specifically directs that it shall be so treated for any specified

purpose:

Provided that if the Government servant so desires such

authority may direct that the period of absence from duty shall be converted

into leave of any kind due and admissible to the Government servant.

14. From Sub-Rule 2 of Rule 97 of Bihar Service Code, it would appear

that in case the government servant has been fully exonerated and if it is found that

the suspension is wholly unjustified, the government servant shall be given full pay

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and allowances for which he would have been posted as he has not been put under

suspension. Sub-Rule 3 of Rule 97 of the Bihar Service Code says that in other cases

the government servant shall be given only such proportion of pay and allowances as

the competent authority may prescribe and for that a notice has to be given to the

delinquent.

15. It is not out of place to mention that in the case of Yogendra

Prasad vs. State of Bihar having CWJC No. 19086 of 2008, it was categorically

held, that in view of the provisions as contained in Sub-Rule 3 of Rule 97 of the

Bihar Service Code, notice has to be given to the delinquent and thereafter, the

authority should pass order for withholding any part of salary and allowance during

the suspension period. The Division Bench of this court has also held, as reported in

1988 P.L.J.R. at Page 82 (Shri Mahabir Prasad Vs. The State of Bihar and

Others) that in such circumstances, the salary and other allowances during the

suspension period could not be held without giving notice to the delinquent.

16. Applying the aforesaid settled principles to the facts of the present

case, this Court finds that although the dismissal order was set aside vide order dated

C.W.J.C. No.10629 of 2014, the petitioner was neither honourably exonerated nor did

the earlier judgment direct for payment of back wages. Rather, the matter was

remitted to the competent authority after noticing procedural irregularities in the

departmental proceeding. The counter affidavit further discloses that the petitioner

had been proceeded against for serious misconduct and had also suffered several

departmental punishments during his service career.

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17. Pursuant to the earlier judgment dated 28-11-2017, the respondents

reinstated the petitioner, restored his increment and regularized his services.

However, while passing the impugned order dated 09.06.2018, the competent

authority exercised its discretion by treating the intervening period as Extraordinary

Leave and denied the salary on the principle of "No Work No Pay”. In the present

case the Petitioner has not challenged the impugned order dated 09.06.2018 in

entirety, rather has only challenged the part of the impugned order dated 09.06.2018,

wherein direction for treating the intervening period as Extraordinary Leave with “No

Work No Pay” has been passed.

18. In the opinion of this Court, though the impugned order dated

09.06.2018, has been passed stating interalia that the intervening period shall be

treated as Extraordinary Leave and no allowances or payment shall be made for the

said period on account of “No Work No Pay”, but nothing in the record of the instant

case, reveals or suggests that any notice prior to passing such order, was ever served

upon the Petitioner as per Rule 12 of Bihar Government Servants (CCA) Rules, 2005

and Rule 97 of Bihar Service Code, 1979, nor there is any whisper of this fact in the

impugned order.

19. In the facts of the present case as stated hereinabove, this Court is of

the view that the order with regards to non - payment of the salary, allowances or pay,

for the intervening period i.e. from 02.07.2013 to 18.01.2018, treating it to be

Extraordinary Leave, has been passed without according an opportunity of hearing to

the Petitioner, which is in complete violation of principles of natural justice.

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20. Consequently, this Court deems it fit and proper to set aside the part

of impugned order dated 09.06.2018, only to the extent of treating the intervening

period as Extraordinary Leave Period and consequently, directing for non-payment of

back wages for the intervening period.

21. The respondents are directed to reconsider the claim of the Petitioner

for back wages in light of the procedure outlined under Rules of Bihar Government

Servants (CCA) Rules, 2005 and Bihar Service Code, 1979. A reasoned and speaking

order regarding payment of back wages shall be passed in accordance with law after

giving an opportunity of hearing to the petitioner, within three months from date of

production of this judgment.

22. The writ petition is allowed to the aforesaid extent.

23. There shall be no order as to costs.

sanjeev/-

(Kumar Manish, J)

AFR/NAFR AFR

CAV DATE 28.07.2026

Uploading Date 18.08.2026

Transmission Date