SHIVAJI PANDEY, J. - (1.)HEARD learned counsel for the petitioner and the learned counsel for the State.
(2.)IN the present application, petitioner has made a claim for salary for the period 7th February 1992 to 25th September 1995, during which the petitioner remained out of service due to the order of termination passed against the petitioner which was reconsidered and the order of termination was substituted with substituted punishment of stoppage of one increment, vide Annexure-3 to the writ petition) and also for quashing the order passed by the respondent no.3 D.I.G., BMP, Central Zone, Patna, vide Annexure-7 to the writ petition whereby and whereunder he affirmed the order passed by Commandant B.M.P.5 in which it has been specifically mentioned that the petitioner will not be entitled to salary for the period 17th September 1995. IN this back ground, the only dispute in the matter is as to whether the petitioner is entitled to salary for the period 7th February 1992 to 25th September 1995, the period during which the petitioner did not work in the Department, as he remained under termination.
The facts of the case are that the petitioner was appointed on 6th May 1979 in Bihar Military Police-5, (in short, ,,BMP-5). The petitioner was charge sheeted for a misconduct committed by him on 19th May 1991 for disobedience of the legal order and also giving a slap to a Hawaldar, namely Mehdi Hussain. After the conclusion of enquiry, petitioner was discharged from service for the misconduct committed by him, which was set aside by the respondent no.3 on 24th September 1990. Thereafter the Commandant again issued fresh charge-sheet on 5th August 1991. Again the petitioner was discharged on 17th February 1992.

Petitioner filed an appeal and the same was rejected and the memorial also met the similar fate, as the Director General of Police rejected the memorial of the petitioner. Petitioner challenged the said order of discharge from service, vide C.W.J.C.No. 9545 of 1994 and the order of discharge was set aside and the matter was again remitted back to the respondents to make further enquiry after giving opportunity to the petitioner including opportunity to cross-examine the prosecution witness and the opportunity to produce the defence witnesses and only thereafter the Enquiry Officer will submit his report.

In pursuance of the order passed by this Court the Enquiry Officer considered the matter and submitted his enquiry report and found the petitioner guilty along with Mehdi Hussain, Hawaldar and in pursuance thereof the Commandant looked to the facts of the case and the order of discharge was substituted with reducing the punishment of stoppage of one increment which will be equal to 2 black-spots in his career and in the order it has also been held that the petitioner will also not be entitled to salary for the period 7th February 1992 to 25th September 1995.

Petitioner is satisfied with the order of punishment but dissatisfied with the order by which petitioner has been deprived of salary for the aforesaid period. The petitioner being aggrieved by the order filed an appeal before the Deputy Inspector of Police, BMP, Patna but the DIG looking to the facts and circumstances, refused to interfere with the order.

(3.)PETITIONER in the present writ petition is aggrieved only to the extent that when the order of discharge was substituted with reducing punishment, then he should be given his salary for the period 7th February 1992 to 25th September 1995, as contended by the petitioner that he was illegally discharged and that has been withdrawn later on and, as such, he cannot be deprived of the same.
Learned counsel for the petitioner in support of his contention has relied on a judgment of single Judge vide C.W.J.C.No.4354 of 1995 (Annexure-5 to the writ petition) in which he has contended that it has been held that if the order of termination is illegal, ordinarily the consequence of the order of granting of wages must follow unless there are reasons on record which would justify the departure from the normal order. He has also relied on a judgment of the Honble Supreme Court in 1995 Supreme Court Cases (I & S) 193 (Manorama Verma (Smt.) Vs. State of Bihar and others)(Annexure-4 to the writ petition). On that basis petitioner has claimed that he is entitled to the salary.

Learned counsel for the State disputed this aspect of the matter and has stated that it is not a fact that the charges were not proved against the petitioner but it is in the nature of contributory misconduct and, as such, the order of discharge was substituted with the present order of punishment. Hence it can be said that the impugned order of punishment was passed against the petitioner for his misconduct.