Bhairav Prasad Mishra v. State of Chhattisgarh

HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.5821 OF2009 Bhairav Prasad Mishra Versus State of Chhattisgarh and Others Post for pronouncement of the Judgment and order on 77'' day of December, 2009 •K Sd/- Satish K. Agnihotri Judge •3): ^^~~- ~~~-> .'-•-7^^ r ,' 1 y, f^'JW. ^ -^ H1GHCOURT OF CHHATTISGARH : BILASPUR WRIT PETITION(S) N0.5821 OF 2009 PETITIONER Bhairav Prasad Mishra Versus RESPONDENTS State of Chhattisgarh & Others (Writ petition under Article 226 of the Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri H.S. Ahulwalia, Advocate for the petitioner. Shri P.K. Bhaduri, Panel Lawyerforthe State. ORDER (Passed on this 7 day of December, 2009)

1. By this petition, the petitioner seeks a writ/direction to the respondent-authorities to relieve the petitioner from the present place of posting to join the promoted post of Assistant Sub Inspector pf Police and further to maintain the seniority of the petitioner from the date he was promoted on the post of Assistant Sub Inspector with all consequential benefits.

2. The indisputable facts, in nutshell, as projected by the petitioner, are that the petitioner while working as Head Constable in the Police Department was promoted to the post of Assistant Sub Inspector of Police on 2-1-2009 and posted at Raigarh on 3-1-2009 (Annexure - P/2). The petitioner was not relieved to join the promotional post of Assistant Sub Inspector at Raigarh, pursuant to the order dated 2-1-2009 & 3-1-2009. Thereafter, petitioner made a representation on 19-1-2009 (Annexure - P/3) to the Inspector ^ General of Police seeking a direction to relieve the petitioner from the post of Head Constable to Join the new place of posting as Assistant Sub Inspector.

3. Earlier the petitioner preferred a writ petition before this Court being W.P. (S) No.2541 of 2009 (Bhairav Prasad Mishra v. State of Chhattisgarh & Others). By order dated 15-5-2009 (Annexure - P/4) this Court directed the petitioner to make a fresh representation and the respondent No.4 was directed to decide the same, accordance with law. Pursuant to the representation, the respondent No.4 by order dated 28-5-2009 (Annexure - P/1) dismissed the representation of the petitioner on the ground that a case against the petitioner under the provisions of Sections 298, 153, 355 and 504 of the Indian Penal Code in crime No.108/2002 has been registered. After investigation, an application was made for closing the case wherein it was directed to reinvestigate the matter. After reinvestigation again an application was made on 2-3-2009 before the Court of Chief Judicial Magistrate, Bilaspur, for closing the case. Since no order has been passed on the case, the petitioner was not relieved from the post of Head Constable to join the promotional post of Assistant Sub Inspector Police. Being aggrieved the aforesaid action of the respondent authprities, petitioner has preferred the present writ petition seeking afore-stated reliefs.

4. Shri Ahulwalia, learned counsel appearing for the petitioner, would submit that criminal proceeding with crime No. 108/2002 was registered against the petitioner at Police Station Lormi. After W)> investigation a report was submitted to close the case on 24-9-2007. However, learned Judicial Magistrate directed to reinvestigate matter and after reinvestigation the case was again submitted for its closing. On 6-5-2009 the closure report was transferred to the Judicial Magistrate, Lormi. Learned counsel would further submit that under the provisions of the Chhattisgarh Public Services (Promotion) Rules, 2003 (for short "the Rules, 2003"), pendency of criminal case has been defined that after the challan has been filed, the case may be held as pending before any Court of law. In the present case since ESBaa.-- no challan was filed and the case is at the stage of closure it may not be held as the criminal case is pending against the petitioner before any Court; of law.

5. Shri Ahulwalia would next submit that the Inspector General of Police in his communication dated 19-1-2009 (Annexure - P/6), addressed to the Superintendent of Police, has mentioned that the Sub Divisional Officer (Police), Kota, has informed that the case was pending against the petitioner and accordingly, it was directed to the respondent No.4 to take appropriate steps. The respondent No.3 again by communication dated 1-5-2009 (Annexure - P/7) directed the respondent No.4 to submit the report in respect of the fact that when the other two co-accused persons have been promoted why the petitioner has not been relieved to join the promotional post i.e. Assistant Sub Inspector of Police. Learned counsel would submit that since no criminal proceeding is pending against the petitioner in any Court of law, there is no reason not to relieve the petitioner from ^ the post of Head Constable to join the promotional post i.e. Assistant Sub Inspector of Police. Thus, the petition may be allowed.

6. Per contra, Shri Bhaduri, learned Panel Lawyer appearing for the State, would submit that the respondent No.4 has already relieved the petitioner by order dated 3-11-2009 (Annexure ~ R/1) to join the promotiona] post of Assistant Sub inspector of Police at Raigarh. Thus, the petition has become infructuous and the same may be dismissed as having become infructuous.

8. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. There is no provision in the Rules, 2003 to define pendency of criminal case, as is submitted by the petitioner. The petitioner has relied on a hand book wherein it was observed that a sealed cover process would be adopted in a case wherein charge sheet has been issued in a disciplinary proceeding or a criminal case is pending.

9. The next question asto whether the petitioner is entitled to arrears of wages and other benefits from the date of promotion or from the date of joining. It is well settled principle of law that an employee is entitled to wages for actual performance on the post. Thus, from 3-1-2009 to 3-11-2009 till he was relieved, the petitioner has not worked as Assistant Sub Inspector. Therefore, the petitioner is not entitled to any wages or allowances of the said period. In so far as seniority of the petitioner is concerned, he may be entitled for seniority from the date of promotion order on notional basis, as he was not relieved from the post to join in the promotional post. MV ^ ^s ^

10. In Union of India, etc. etc. v. K.V. Jankiraman, etc. etc. , Supreme Court observed as under : "6....0n the purposes of the first question, viz., as to when the sealed cover disciplinary/criminal procedure proceedings commenced, the Full Bench of the Tribunal is only when a charge- has held that memo in a disciplinary proceedings or a in a criminal prosecution is charge-sheet issued to the employee that it can be said that the departmental proceedings/criminal prosecution employee. The sealed cover procedure is to be resori:ed to only after the' charge- The memo/charge-sheet pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point....." initiated against issued.

11. The Supreme Court in The Commissioner, Karnataka Housing Board v. C. IVIuddaiah , obsen/ed as under: "32.....We no pay'. are conscious and mindful even in absence of statutory provision, 'no work normal In appropriate cases, however, a Court of Law may, nay must, take into account all entirety appropriate order in consonance with law. in a given case, may hold that The Court, the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the cireumstances, direct the authority to grant him all benefits considering 'as It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a authority can ignore them even if they had been finally confirmed by the Apex. Court of the country (as has been done in the if he had worked'. court, A1R 1991 SC 2010 AIR2007SC3100 ^ ^ >. (' ^ R present case). The bald contention of the appellant-Board, substance and must be rejected." therefore,

12. In State of Haryana and Others v. O.P. Gupta and Others3, the Supreme Court observed that consequently, the payment of arrears of salary does not arise since, admittedly the respondents had not worked during that period.

13. The Supreme Court in A.K. Soumini v. State Bank of Travancore and Another , observed as under : "8. concerned In State of Haryana v. O.P. Gupta this Court had occasion to deal with a claim for arrears in a case where in adjudicating a dispute relating to seniority. This Court directed the department prepare a fresh seniority list s.trictly in ignoring accordance inconsistent administrative instructions and in compliance thereof a fresh seniority list came to be prepared and eligible persons were even given notional promotion by the from a deemed date. When department such promotees claimed for payment of arrears of salary as well, this Court rejected the claim applying the principle of "no work, no pay" and set aside the orders of the High Court, countenancing such claims to be illegal forthe reason that the promotees did not work for the period in the promoted In coming to such conclusions capacities. followed the earlier decisions this Couri: reported in Paluru Ramkrishnaiah -v. Union of India and Virender Kumar, G.M., N. Rlys. v. Avinash Chandra Chadha

14. The Supreme Court in Union of India v. B.IVI. Jha observed as under: