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2007 DIGILAW 1902 (PAT)

Rama Prasad Pathak v. State Of Bihar

2007-12-14

J.N.SINGH

body2007
Judgment 1. Heard learned counsel for the petitioner. In spite of repeated calling, nobody appears for the State. 2. In this writ application, petitioner has challenged Annexure-4 by which in the wake of conclusion of departmental proceeding against petitioner by giving him warning, it has been ordered that the petitioner shall not be entitled to any other payment of the suspension period except the subsistence allowance. 3. Case of the petitioner is that at the relevant time he was posted as Revenue Karamchari in Baniyapur Anchal in the district of Saran. A departmental proceeding was initiated against him and he was put under suspension by Annexure-1 dated 15.3.2002. The departmental proceeding was finally closed by Annexure-2 dated 15.5.2002 by which only a warning was given to the petitioner and he was released from suspension. After release from suspension, petitioner was posted in another Anchal by Annexure-3 dated 1.2.2003. Thereafter, Annexure-4 has been issued on the orders of the Respondent Collector by which it has been held that the petitioner shall not be entitled to any other payment of his suspension period except the subsistence allowance. 4. Submission of learned counsel for the petitioner is that warning is no punishment under the Rules and therefore, departmental proceeding was closed without any punishment to the petitioner. He submits that withholding of any payment of the suspension period except the subsistence allowance is an independent punishment as per R. 97 of the Bihar Service Code which could not be imposed on the petitioner without issuing any show cause notice and without giving him any opportunity of hearing in the matter. In that view of the matter, order of the Collector, as contained in Annexure-4, withholding any other payment of the petitioner except the subsistence allowance for the period of his suspension is bad in law and in violation of principle of natural justice. Learned counsel for the petitioner also submits that the petitioner has not been paid subsistence allowance for the period from 15.3.2002 to 14.5.2002 during which period he was under suspension. He further submits that the petitioner has not been paid his salary of the period from 1.3.2002 to 14.3.2002 i.e. prior to his suspension. 5. A counter affidavit on behalf of respondent nos. He further submits that the petitioner has not been paid his salary of the period from 1.3.2002 to 14.3.2002 i.e. prior to his suspension. 5. A counter affidavit on behalf of respondent nos. 1 to 4 is available on the record from which it appears that the respondents have taken a stand that the punishment of warning was awarded to the petitioner on conclusion of the proceeding and therefore payment of any other amount except subsistence allowance during the period of his suspension was withheld. It has also been stated in the counter affidavit that the petitioner has been paid his subsistence allowance. So far salary of the petitioner from 1.3.2002 to 14.3. 2002 is concerned, there is no averment in this regard in the counter affidavit. 6. Stand of the respondents in the counter affidavit is not acceptable in view of the decision of a Division Bench of this Court in the case of Sri Mahabir Prasad V/s. State of Bihar, 1988 0 PLJR 82, wherein it has been held that for withholding any payment of the suspension period except subsistence allowance, a show cause is necessary to be given to the delinquent. Apparently in the present case, no show cause was given to the petitioner and while closing the proceeding against the petitioner with a warning, payment of his salary etc. of the suspension period has been withheld which is apparently in violation of the principle of natural justice and not sustainable in law. Moreover, stand of the respondents in the counter affidavit that warning was a punishment is also not correct. From a bare reading of Rule 2 of the Rules, it is apparent that warning is not included as one of the punishments therein. In that view of the matter, it is apparent that the departmental proceeding against petitioner was closed without any punishment and, therefore, on that score also payment of salary etc. of the petitioner of the suspension period could not be withheld. 7. In the circumstances, Annexure-4 dated 1.2.2003 is quashed and respondents are directed to pay the salary etc. of the period of suspension of the petitioner in accordance with law preferably within a period of three months from the date of receipt/production of a copy of this order. of the petitioner of the suspension period could not be withheld. 7. In the circumstances, Annexure-4 dated 1.2.2003 is quashed and respondents are directed to pay the salary etc. of the period of suspension of the petitioner in accordance with law preferably within a period of three months from the date of receipt/production of a copy of this order. Since, there is no denial of the respondents in the counter affidavit with regard to the dues of salary of the petitioner of the period from 1.3.2002 to 14.3.2002, respondents are also directed to pay the same within the same time. 8. In the result, this writ application is allowed.