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2005 DIGILAW 1001 (PAT)

Yadu Nandan Singh v. State Of Bihar

2005-11-23

NARAYAN ROY

body2005
Judgment 1. Heard learned counsel for the petitioner and JC to GP VIII for the respondents. 2. This writ application is directed against the order as contained in annexure-5, issued vide memo no. 656 (Admn.) dated 28.10.2003, whereby and whereunder the authorities rejected the prayer of the petitioner for payment of full salary for the period he was detained in custody. 3. It is submitted by learned counsel for the petitioner that on the basis of the FIR lodged against the petitioner in chauk P.S. Case No. 29/2000, he was detained in custody from 5th March, 2000 to 7th March, 2000 and ultimately be was granted bail by the court below. After release of the petitioner from custody, he was treated to be under deemed suspension in view of the provisions of Rule 99 of the Bihar Service Code, hereinafter to be referred to as the Code. The matter however, was investigated by the police and final form was submitted vide annexure-2, which was considered by the learned Magistrate and vide order dated 22.5.2000, as contained in annexure-3, he accepted the final form after hearing the informant and the matter therefore was consigned. It is further submitted by learned counsel that after acceptance of the final form the petitioner prayed before the authorities for payment of his salary for the period he was detained which was rejected by the impugned order. It is further submitted by learned counsel that the order accepting the final form after hearing the informant amounts to discharge of the petitioner from the criminal charges and, therefore, the petitioner would be entitled for full salary for the period he was detained in custody. 4. JC to GP VIII with reference to the counter affidavit submitted that since the petitioner has not been acquitted in criminal case, he would not be entitled for full salary. 5. 4. JC to GP VIII with reference to the counter affidavit submitted that since the petitioner has not been acquitted in criminal case, he would not be entitled for full salary. 5. Rule 99 of the Bihar Service Code reads as under: "A servant of Government against whom proceedings have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment, and not allowed to draw any pay and allowances (other than any subsistence grant that may be granted in accordance with principles laid down in Rule-96) for such periods, until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin his duties as the case may be. An adjustment of his allowances for such period therefore, be made according to the circumstances of the case, the full amount being only in the event of the Government servant being acquitted of blame or (if the proceeding taken against him, were for his arrest for debt) of its being proved that the Government servants liability arose from circumstances beyond his control or detention, being held by any competent authority to be unjustified." 6. On plain reading of the provisions of Rule 99 of the Code, it appears that a Government servant if detained, would not be entitled for pay and allowances until termination of a proceeding taken against him on release from detention or in case he is finally acquitted of the criminal charges. 7. From the materials on record it does not appear that any departmental proceeding is pending against the petitioner till date, rather it appears that the petitioner was discharged from the criminal case as the final form was accepted after hearing the informant and no protest petition was filed. In such a situation no criminal proceeding was pending against the petitioner and, therefore, no question arises for his final acquittal. 8. In the counter affidavit, rather it is admitted that the departmental proceeding was concluded and the final form was accepted by the learned Magistrate. 9. On enumeration of these facts it appears that the petitioner is neither facing any criminal charges at present nor any departmental proceeding is pending against him. 10. 8. In the counter affidavit, rather it is admitted that the departmental proceeding was concluded and the final form was accepted by the learned Magistrate. 9. On enumeration of these facts it appears that the petitioner is neither facing any criminal charges at present nor any departmental proceeding is pending against him. 10. Under these circumstances, therefore the order impugned, as contained in annexure-5, is not sustainable in law. 11. In the result, this writ application is allowed and the order impugned as contained in annexure-5 is set aside. The authorities are directed to make payment of the due salary to the petitioner for the period he was in detention in accordance with the provisions of Rule 99 of the Code forthwith.