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2005 DIGILAW 894 (PAT)

Braj Bhushan Rao v. State Of Bihar

2005-09-28

NARAYAN ROY

body2005
Judgment Narayan Roy, J. 1. Heard Mr. P.K.Shahi, learned counsel for the petitioner and JC to GP I for the respondents. 2. The only grievance of the writ petitioner is that though he waited for posting for the period 10.8.1990 to 29.9.1993, his due salary was not paid. 3. It is submitted by learned counsel that the petitioner is said to have been transferred from Gopalganj to Dehri-on-Sone, vide notification dated 12th June 1989, as contained in annexure-1. The petitioner, however, was relieved unilaterally by the office at Gopalganj on 4.8.1990 with effect from 31.7.1990. The petitioner immediately thereafter joined in the office of the Chief Engineer at Dehri-on-Sone. The petitioner finding certain mistakes committed in his name and his designation in the notification initially had pointed out to the Chief Engineer at Siwan saying that his name has been spelt out as Braj Bhushan Rai and instead of Assistant Engineer (Mechanical) he was shown as Assistant Engineer (Civil). The matter, however, remained pending, even though the petitioner made representation to the Chief Engineer Dehri-on-Sone for necessary correction and issuance of a corrigendum. The petitioner, however, remained throughout in the office of the Chief Engineer at Dehri-on-Sone and lastly vide order dated 29.9.1993, necessary correction was made in the notification as contained in annexure-1, so far as the name and designation of the petitioner was concerned. The petitioner, thereafter, was given proper posting and he started drawing his salary, but the salary for the period he waited for posting i.e. 10.8.1990 to 29.9.1993 has not yet been paid despite several requests made by him to the Chief Engineer. It is further submitted that the petitioner, in any view of the matter, cannot be held liable as proper posting was not given to him in view of the mistakes committed in the notification, as referred to above, and the petitioner was entitled for the full salary. It is also submitted by learned counsel that the Department had also not taken any action against the petitioner for non-joining on the proper post in view of the notification, rather correspondences were made for necessary correction. 4. Learned counsel for the State, however, submitted that the petitioner since remained absent for about three years, he is not entitled for any salary. 4. Learned counsel for the State, however, submitted that the petitioner since remained absent for about three years, he is not entitled for any salary. In his counter affidavit the factum that the petitioner joined the office of the Chief Engineer, Dehri-on Sone on 10.8.1990 is not disputed nor it is disputed that necessary correction was made in the notification vide order dated 29.9.1993. At the same time, it is not the case of the Respondent State that any proceeding was initiated against the petitioner for his alleged absence from office. Mere saying of the respondents that the petitioner absented from duty will not suffice to withhold his salary for the period, as referred to above. 5. It is settled law that the salary of a Government servant cannot be withheld for indefinite period without initiation of a proceeding or enquiry. In this connection. reference may be made to the case of Ram Pati Mishra and Ors. V/s. The State of Bihar & Ors. reported in 2001(3) PLJR page 462 and to the case of Radha Kumari V/s. State of Bihar & Ors. reported in 2002(3) PLJR page 794. 6. The petitioner, however, has not made out a case that he ever represented the matter before the appropriate Government or to the concerned Secretary of the Department for payment of salary for the period 10.8.1990 to 29.9.1993 and straightway came to this Court by this writ application. 7. In my opinion, certain necessary facts are to be examined by the Department as to under what circumstances proper posting was not given to the petitioner and why he was not allowed to disburse his salary. 8. Keeping in view, this aspect of the matter, the petitioner is directed to represent his case before the Secretary-cum-Commissioner of the Department and in case any representation is filed by the petitioner for payment of his due salary, the same would be considered and disposed of by the concerned Secretary in accordance with law and in the light of the observation made by this Court within a period of three months from the date of filing of the representation. In case, the Secretary concerned would be satisfied that there was no fault on the part of the petitioner, necessary direction shall be issued for payment of due salary forthwith. 9. With this direction/observation, this writ application is disposed of.