JUDGMENT Heard counsel for the parties. 2. The petitioner in this writ application, has prayed for a direction upon the respondents to pay him the salary for the period of suspension from 31.3.2001 to 24.8.2002 amounting to Rs. 1,83,880/-. 3. The petitioner was employed as a Assistant Teacher in the Primary School, Nag Nagar Anchal,Govindpur-2. A criminal proceeding was initiated against the petitioner for certain offences under the Indian Penal Code. Both the petitioner as well as his wife, who were made accused in the criminal proceeding, were arrested and remanded to judicial custody. Later, the petitioner was enlarged on bail. 4. On account of his remand to judicial custody, the petitioner could not possibly attend duty in between23.02.2001 to 02.04.2001 for a total period of 39 days. On the charge that he had absented himself from duty for 39 days without prior permission, a departmental proceeding was initiated against him, though after obtaining his explanations to the Memorandum of Charge. The petitioner was subsequently granted opportunity of being heard and of participating in the departmental proceeding. 5. During the pendency of the departmental proceeding, the petitioner filed a writ application before court, praying for an order staying the continuation of the departmental proceeding. Vide order dated 7.5.2005 passed in the petitioner's writ application vide W.P.(S) No. 2467 of 2004, this court had observed that since the criminal case against the petitioner has ended in acquittal, the Director, Primary Education should take a decision in the matter of continuation of Departmental proceeding and payment of salary for the period of suspension. 6. Notwithstanding the aforesaid order, the Departmental Proceeding continued and at the conclusion of the inquiry, a finding was recorded by the Inquiry Officer, declaring therein that the charge against the petitioner stood proved. On the basis of the findings of the Inquiry Officer, the Disciplinary Authority namely, the District Superintendent of Education passed the impugned order of punishment dated 15.05.2004 against the petitioner whereby, while revoking the order of suspension, it was ordered that the petitioner would not get any salary for the period of suspension beyond the amount of subsistence allowance which was already paid to him. 7. 7. It appears subsequently that in compliance with the above mentioned order passed by this court, the Director, Primary Education, by his order (impugned) dated 28.3.2005, had recorded his decision rejecting the petitioner's claim for salary for the suspension period basically on two grounds. Firstly, that the order of punishment was passed against the petitioner on 15.5.2004 and against which, the petitioner ought to have preferred an appeal as provided under Rule 10 of the Bihar Government Primary School Teachers (Transfer and Discipline Action), Rule 1994 with amended Rule of 1997 and secondly, on the ground that the officer who had granted commutation of leave to the petitioner, had exceeded his authority by commuting 78 days of leave instead of the maximum of 60 days. 8. Learned counsel for the Respondent informs with reference to Rule 234 of the Jharkhand Service Code that, as rightly pointed out by the Director, Primary Education in the impugned order dated 28.03.2005, the concerned authority, who had granted commutation of leave to the petitioner, purporting to adjust 39 days of the petitioner's absence against the half day leave, has acted beyond his authority. 9. From the above rival submissions, admittedly, the petitioner had offered his explanation for his absence from duty for 39 days on the ground that he could not possibly attend duty on account of his being remanded to judicial custody in connection with the criminal case. It also appears that on the petitioner's application for commutation of the period of his absence as leave, an order of commutation was passed by the competent authority. Even if, it is contended that the competent authority had exceeded his jurisdiction for computing a total number of 78 days half day leave for adjusting 39 days of the petitioner's absence, yet the Rules do permit adjustment of the period of absence against all kinds of permissible leave to which the petitioner as a Government Teacher, could be entitled. 10. It also appears that though Rule 10 of Bihar Government Primary School Teachers (Transfer and Discipline Action), Rule 1994 provides an appeal in respect of the order of punishment which may be passed by the authority concerned under Rule 8(3) of the aforesaid Rules, but the Rule 10 does not envisage any appeal in cases relating to stoppage of salary which has reference in Rule 6 of the aforesaid Rules. It is apparent therefore that in case where the stoppage of salary is provided under Rule 6 of the aforesaid Rules, there does not appear any provision of appeal. No such provision has been pointed out either by the counsel for the petitioner or by the counsel for the respondents. The petitioner could not possibly therefore prefer an appeal against the impugned order of stoppage of his salary in absence of any such provision of appeal. 11. As regards the punishment of stoppage of salary for the suspension period, the facts disclose that upon thepetitioner's application, the period of his absence was adjusted against leave by way of commutation. Therefore, even if the charge against the petitioner was for willful absence without prior permission and may have constituted an act of misconduct according to the Service Rule, but gravity of such charge becomes diluted upon acceptance of the petitioner's prayer for adjustment of the period of absence by way of commuting the leave. The concerned authority should have therefore considered that the petitioner was entitled, as per the provisions of Service Code, to demand for adjustment of the period of absence and get the same converted against all kinds of leave available to him. 12. The above aspect as a mitigating circumstance ought to have been taken notice by the concerned authority before recording the order of punishment by way of stoppage of salary for the suspension period. 13. In facts and circumstances, I am of the opinion that the impugned order of punishment has been passed without proper application of mind and without adverting to the relevant attending circumstances including the circumstance which have the effect of diluting the gravity of charge, before passing the impugned order of stoppage of salary. Under the circumstances, the impugned order of punishment dated 15.05.2004 and the order dated 28.03.2005, are hereby set aside. The matter is remitted back to the petitioner's Disciplinary Authority to reconsider the matter on the quantum of punishment after taking into consideration all the relevant and attending circumstance and take an appropriate decision by recording a reasoned and speaking order, within three months from the date of receipt / production of a copy of this order. With these observations, this writ application is disposed of. Let a copy of this order be given to the counsel for the respondent State.