Back
1966 Supreme(Pat) 138
PATNA HIGH COURT
H.Mahapatra and A.B.N.Sinha JJ.
Tarak Nath Ghosh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 787 of 1965 ;
Decided On : OCTOBER 11, 1966
A civil servant is entitled to his salary and other remunerations during the period of suspension if the suspension order is quashed by the court, even if the government does not assign work to him.
Headnote:
CONSTITUTIONAL LAW - SERVICE MATTERS - SUSPENSION - PAYMENT OF SALARY - ENTITLEMENT - SUSPENSION ORDER QUASHED BY HIGH COURT - GOVERNMENT'S OBLIGATION TO PAY SALARY - ARTICLE 310 AND 311 OF THE CONSTITUTION - INTERPRETATION.
Fact of the Case:
Petitioner, a Special Officer in the Political (General and Transport) Department of the Government of Bihar, was suspended from service. He challenged the suspension order in the High Court, which quashed it. Despite the High Court's order, the petitioner was not reinstated or paid his salary. He filed a writ petition seeking payment of his salary and other dues.
Finding of the Court:
The High Court held that the petitioner was entitled to his salary and other remunerations from the date of the quashing of the suspension order until the date of the second suspension order. The court rejected the government's argument that the petitioner could not be forced to assign work to him, stating that the holder of a civil post has an enforceable right to receive the contracted remuneration as long as his service is not terminated.
Issues: 1. Whether the petitioner was entitled to his salary and other remunerations despite the quashing of the suspension order. 2. Whether the government was obligated to assign work to the petitioner after the quashing of the suspension order.
Ratio Decidendi: 1. The court held that the petitioner was entitled to his salary and other remunerations from the date of the quashing of the suspension order until the date of the second suspension order. The court reasoned that the petitioner was not under suspension during this period and was therefore entitled to his salary and other dues. 2. The court held that the government was not obligated to assign work to the petitioner after the quashing of the suspension order. The court reasoned that the holder of a civil post has an enforceable right to receive the contracted remuneration as long as his service is not terminated, but does not have an enforceable right to be assigned work.
Final Decision: The High Court directed the respondents to pay the petitioner his salary and other remunerations from the date of the quashing of the suspension order until the date of the second suspension order. The court also awarded the petitioner costs of Rs. 100.
Mahapatra, J.
1. This is an application under Articles 226 and 227 of the Constitution for issuance of a writ or direction to the Union of India, the State of Bihar, Inspector-General of Police, Bihar, Accountant-General of Bihar and the Treasury Officer, Patna Secretariate asking them "to obey the order of this court and to put the petitioner back to his service as Special Officer, Political (General and Transport) Department and to make payments to him of his just and lawful dues and his salary and allowances to which he is entitled in the aforesaid post."
2. The circumstances in which this petition has been filed may be stated, in brief, as follows. The petitioner was holding the post of Special Officer, Political (General and Transport) Department of the Government of Bihar, when he received an order of suspension from the Government of India on the 31st July, 1964. He challenged that order in a writ application in this court in Misc. Judl. Case No. 1207 of 1964; and on the 31st March 1965: (reported in AIR 1967 Pat 81) this court quashed the suspension order. Subsequent to that, the petitioner has again been suspended by an order dated the 14th July, 1965; but we are not concerned with that at present. In the present application, the petitioner complained that in spite of the first order of suspension having been quashed by this court, he has not been allotted any work or has not been posted to any place and further, he has not been paid his legitimate dues to which he was entitled during the period of his suspension and for the period thereafter till the departmental inquiry was initiated.
3. In the return made by respondent 1 (the State of Bihar), it was stated that respondents 1 and 5 asked this court for a certificate to file an appeal against the judgment of this court quashing the suspension order and they were advised that the whole matter will have to be re-examined by the Supreme Court if the certificate was granted; and, in that view, the petitioner was not paid his salary for the period involved.
During argument, we were told that a certificate had already been granted to the respondents and they were taking necessary steps for lodging an appeal before the Supreme Court. This, however, in our view, is no justification for withholding payment of the salary to the petitioner when his suspension was held to be invalid by this court. It is true that in the prevvious writ application, the petitioner had not asked for a writ in regard to the payment of his legitimate dues, if his suspension from service was quashed. But, all the same, after the judgment was delivered by this court and until that is modified or reversed by the Superior Court, the petitioner must be held not to have been under suspension till the second suspension order was passed on the 14th July 1965.
4. Learned Advocate General urged before us that under the theory that every civil servant holds his post under the pleasure of the President, he can be suspended by the President irrespective of any departmental proceeding. He relied upon Article 310 of the Constitution for this purpose. He, however, conceded that the theory of pleasure in respect of termination of service was, however, modulated by the provisions of Article 311, but he said in regard to suspension of the civil servant no such restriction has been imposed upon the President under the Constitution. This argument was not accepted by this court in the previous writ application of the petitioner; and we do not propose to re-examine that question here since that matter is now under appeal to the Supreme Court.
5. Next, it was contended for the respondents that in absence of any direction for payment of his salary to the petitioner in the previous judgment of this court, there has not been any violation on the part of the State Government and it is open to the petitioner to seek his remedy under the normal law by filing a suit for recovery of money from the State Government, if he is
