Dharm Nath Pandey vs State of Bihar and Another

R.M. Lodha, C.J. and Kishore K. Mandal, J.—We heard Counsel for the appellant and also considered the available material.

The Counsel for the appellant invited our attention to Rule 97 of Bihar Service Code. Rule 97 to the extent it is relevant reads thus:

97.(1) When a Government servant who has been dismissed, removed or suspended, reinstated, the authority competent to order the 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.

(2) Where the authority mentioned in Sub-rule (1), is of the 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) ...

(4) ...

(5) ...

The thrust of the argument of the Counsel for the appellant is that the appellant having been exonerated of all the charges in disciplinary proceedings is entitled to full pay and allowance for the period of which he remained suspended and during the period of termination before his reinstatement.

Bereft of unnecessary details, the fact of the matter is that the disciplinary proceedings against the appellant were ultimately dropped vide order dated 15.9.1977, the operative order reads thus:

Under the above circumstances, I conclude that there is no evidence to bring home any of the charges levelled against Shri Phjjrnnath Pandey, the proceedee and as such the proceeding is dropped.

Pursuant to the order dropping the disciplinary proceedings, vide order dated 4th March, 1982, the appellant was reinstated and the appellant''s suspension was revoked. The appellant made representation for giving him full pay and allowance during the suspension period. The competent authority i.e. the Collector, Madhubani vide order dated 5th April, 1999 rejected the appellant''s claim of pay and allowance: on the principle of ''no work, no pay''. Initially the appellant filed a contempt petition before this Court alleging that the said order amounted to contempt, but the contempt petition came to be dismissed on 18th March, 2001. Thereafter writ petition was filed by the present appellant taking exception to the order dated 5th April, 1999. The writ application has been dismissed by the Single Judge vide impugned order dated 5th October, 2007. It is from this order that the present appeal has been preferred.

The Counsel for the appellant vehemently urged that the principle of ''no work, no pay'' has no application to the present fact-situation, as it was the respondents who denied the appellant work during suspension, but once the suspension has been revoked and the appellant has been exonerated in the disciplinary proceeding, he is entitled to full pay and allowance.

In our view, the delinquent employee does not become entitled to pay and allowance as a matter of course, upon revocation of suspension. The language of Rule 97 suggests that the competent authority has to record that suspension was wholly unjustified. The appointing authority, (Collect of) has considered the matter, threadbare and held that the appellant was not entitled to pay and allowance during the period of suspension. It has not been held that the suspension of the delinquent (appellant) was wholly unjustified. We find no justifiable reason for not agreeing with the view of the appointing authority in denying the appellant pay and allowance of the suspension period.

The appeal, thus, does not deserve to be admitted. It is dismissed in limine.