Judgment S. J. Mukhopadhaya J. 1. Heard learned counsel for the petitioner and the State. 2. The petitioner is aggrieved against the order dated 15th October, 1990, as contained in Annexure-1, By the said order, while the departmental proceeding against the petitioner has been closed, it was ordered that the petitioner would not be paid any further amount other than the subsistence allowance for the period of suspension i. e. for the period from 24th May, 1988 to 16th August, 1989. The petitioner has also challenged the order dated 21st July, 1992, as contained in Annexure-1/a. by which the appeal of the petitioner has been rejected by the Secretary to the Commissioner. 3. The admitted facts of the case lie in a narrow compass. 4. The petitioner was placed under suspension vide one order dated 24th of May, 1988, as contained in Annexure-2. A departmental proceeding was initiated against the petitioner. In the said departmental proceeding, certain allegations were levelled against the petitioner to which the petitioner denied. After day to day departmental proceeding, the I. O. submitted his report vide letter dated 28th July, 1989, as contained in Annexure-3. Thereafter, the Respondent no.3, the Deputy Commissioner, Dumka came out with an order dated 16th August/1989 (Annexure-4) revoking the order of suspension of the petitioner and the petitioner was allowed to join in the legal section of the District Collectorate, Dumka. Subsequently, no final order was passed in the said departmental proceeding against the petitioner and the petitioner retired from service in the meanwhile on 30th September, 1990. It is after the retirement of the petitioner, the Respondent no.3, the Deputy commissioner, Dumka can out with the impugned orders dated 15.10.90 (Annexure-1) confirmed by order dated 21.7.92 (Annexure-1/a) by which while closing the said departmental proceeding, it has been ordered that the petitioner would not receive any further sum for the period of suspension except the subsistence allowance that has already been paid to him. 5. Counsel for the petitioner submitted that the Respondents cannot withhold the impugned salary for the period of suspension, particularly when the petitioner has been exonerated from all the charges in the departmental proceeding. 5. Counsel for the petitioner submitted that the Respondents cannot withhold the impugned salary for the period of suspension, particularly when the petitioner has been exonerated from all the charges in the departmental proceeding. Further it has been pointed out that when the Respondents have closed the said dipartmental enquiry against the petitioner, without inflicting any punishment on the petitioner and/or taking any action under rule 43 B of the Bihar Pension Rules, it is not open to the respondents to say that the petitioner is not entitled for the arrears of salary for the period of suspension except the subsistence allowance which has been already received by the petitioner. 6. In this connection, he has drawn my attention to Rule 97 of the bihar Service Code. 7. Counsel for the State has filed a counter affidavit and has drawn my attention to para-4 of the said counter affidavit. Frpm perusal of paragraph-4, it does not appear that the interpolation regarding the date of birth has been done by the petitioner himself. From the counter affidavit, further I find that the Deputy Collector who has sworn the affidavit has stated that he has read the contents of the counter affidavit and has fully understood the same" and they are true to the best of his knowledge: on queryfrom the state" counsel, he could not point out and/or produce any document to show that petitioner found guilty by the authority and /or any authority has given specific fimding that the Service book the petitioner was manipulated by the petitioner himself. 8. In that view of the matter, whatever the statement that has been made by the Respondents in their counter affidavit is not based on any evidence and hence the same cannot be taken into account, The, manner in which the counter affidavit has been sworn by the Deputy Collector is also to be deprecated. 9. Ln the circumstances, having found that the petitioner has not held quity by the I, O, the Respondents thereafter having not differed with the findings of the I. O. and the departmental proceeding having been closed against the petitioner, for all practical purposes, it will be assumed that the petitioner has been exonerated from the charge, particulary when the petitioner has already retired from service on 30th September, 1990. 10. 10. In that view of the matter, the petitioner is entitled for, full salary for the period of suspension i, e. from 24th May, 1988 to 16th August,, 1989, in terms of Rule 97 of the Bihar Service Code. 11. I accordingly allow the writ petition, set aside the impugned order dated 15th October.1990 (Annexur-e-1) and 21st July, -1992 (Aanexure- 1/a.)The Respondents are directed to pay the petitioner his arrears of salary for the aforesaid period (24-5-88 to 16 8 89) excluding the subsistence, allowance which has already been drawn/received- by the petitioner, within a period of two-months-from the date of receipt/production of copy of this order, 12. I further direct the Respondents to make proper refixation of salary of the aforesaid period and to pay the petitioner the arrears on the basis of such refixation, relating to po$t retirement benefit, if any, within a period of three months. The writ petition is disposed of with the aforesaid observation direction. Petition allowed