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2012 DIGILAW 1647 (PAT)

Arjun Prasad v. State Of Bihar

2012-12-06

RAVI RANJAN

body2012
ORDER 1. Heard learned counsel for the petitioner and the State. 2. Through this writ application, the petitioner seeks following reliefs : “(A) For payment of Salary for Judicial Custody for the period right from 28.08.93 to 07.10.93. (B) For payment of full salary for suspension period right from 13.1.94 to 10.10.96.” 3. So far relief no.(B) is concerned, it is submitted on behalf of the State that the period of suspension has already been ordered to be treated as on duty after acquittal of the petitioner in Kargahar P.S. Case No.103 of 1993. So far the relief mentioned in paragraph-1(a) is concerned, it appears from the averments made in the writ application that the petitioner had remained under custody during the period from 28.8.1993 to 7.10.1993. In paragraph-6 of the counter affidavit, it has been stated by the State authority that during the aforesaid period the petitioner cannot get anything except subsistence allowance. However, at the time of hearing of this matter, learned counsel has not been able to show that any decision has been taken by the authority after issuing proper notice to the petitioner that for the aforesaid period why it is not held that he would not have been given any pay or subsistence allowance. No decision has been taken by the State Authority in terms of Rule-99 of the Bihar Service Code which is quoted hereunder for better appreciation : “99. 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 under going 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 should therefore, be made according to the circumstances of the case, the full amount being given 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 servant’s liability arose from circumstances beyond his control or detention, being held by any competent authority to be unjustified.” 5. The petitioner admittedly remained in custody during aforesaid period and has been paid subsistence allowance. However, when a decision was taken after his acquittal in the criminal case to pay full salary on duty during the period of suspension of another period commencing from 13.1.2004 to 10.10.1996 then the facts were available for the purpose of taking a decision with regard to the concerned period of judicial custody also. The Rule-99 clearly lays down that the government servant would not be entitled for any pay or allowance other than subsistence grant in accordance with the principles laid down in Rule-96 for the period of custody until the termination of proceedings taken against him or until he is released from detention and allowed to rejoin his duties. In the present case, the criminal case having come to an end after acquittal of the petitioner, the proceeding necessarily stands terminated against the petitioner. 6. In above view of the matter, in my considered opinion, petitioner would also be entitled for the full salary for the period during which he was in custody. 7. Accordingly, the respondents are directed to take necessary steps in this regard. The decision should be taken immediately for payment of the amount after necessary calculation within three months. 8. Coming to the Relief-1(B), though a decision has been taken and amount has been sanctioned, but according to the petitioner the calculated amount has not been paid to the petitioner as yet. 9. A counter affidavit has been filed on behalf of the Accountant General stating that the aforesaid notification dated 2.12.2009 appended in Annexure-A to the counter affidavit has not been received by his office. 10. However, since a copy of the aforesaid notification has served upon the counsel for Accountant General, let a proper decision regarding authorization etc. be taken by the Accountant General within six weeks. State authorities are directed to cooperate in this matter. If certain documents etc. 10. However, since a copy of the aforesaid notification has served upon the counsel for Accountant General, let a proper decision regarding authorization etc. be taken by the Accountant General within six weeks. State authorities are directed to cooperate in this matter. If certain documents etc. is required by the office of the Accountant General it should immediately be supplied. The entire exercise till the payment to the petitioner should be completed within two months from today failing which the petitioner would also be entitled for simple interest at the rate of 12% on the unpaid amount to be calculated from the date of the decision as contained in Annexure-A till the final payment. 11. This writ application stands allowed to the extent as indicated above.