IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8811 of 2003 DHANANJAY UPADHYAY son of Late Ram Shankar Upadhyay, Resident of Village Osaon, P.O. Osaon P.S. Karakat, District Rohtas at present Assistant teacher, Patna Collegiate School, Dariapur, Patna. Versus 1. THE STATE OF BIHAR 2. The Secretary, Secondary Education, Bihar, Patna. 3. The Director Secondary Education, Bihar, Patna at New Secretariat Patna. ----------- 4 24.09.2010 Having heard counsel for the petitioner and counsel for the State as with regard to the following relief:- “(i)For issuance of an appropriate writ to quash the order contained in Annexure-6, 7 and 9 by which the petitioner has been punished in a departmental proceeding without being given opportunity of hearing in the matter of punishment. (ii)For the issuance of any appropriate writ or order commanding the respondents to act in accordance with law and to allow reliefs to the petitioner as provided under the law.” this Court is of the opinion that so far Annexure-6 is concerned that only reflects punishment of minor nature on the petitioner by directing entry of Censure in his service record as also recording warning of being careful in future. Either of the two punishments or both of them be taken together, would not be in any way excessive in terms of the misconduct alleged against him, inasmuch as, the charge against the petitioner was that when he was allocated election duty in the parliament election of 1999 he had without any information to the competent authority remained 2 absent from such election duty. The Government servant owes duty to assist the electoral programme and that is why the Election Commission takes service of the government servant. There may be a case where the government servant for his personal reasons or such unavoidable reasons cannot perform the election duty in which case may be allowed to remain absent from such election duty allocated to him. Admittedly the petitioner was not exempted from election duty and as such the order of punishment cannot be held to be bad. In any even, such punishment was inflicted upon the petitioner way back on 8.1.2001 and its effect either in respect of order of Censure or warning seems to be ceased long back. This Court, therefore, does not find any procedural infirmity in the order of punishment as contained in Annexure-6. Counsel for the petitioner, however, has submitted that once the order of punishment as contained in Annexure-6 was passed the authority had no jurisdiction to also withhold payment of salary in the period of suspension, i.e. 29.6.2000 to 8.1.2001 and to that extent the order as contained in Annexure-7 is bad. In the opinion of this Court, once the petitioner was held to be guilty in the departmental proceeding and was inflicted with the order of punishment, the respondents were required to pass a separate order for treatment of period of suspension in keeping with the requirement of Rule 97 of the Bihar Service Code, which reads as follows:- “97. (1)When a Government servant who has been dismissed, removed or suspended, reinstated, the authority competent to order the reinstatement shall 3 consider and make specific order- (a)regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and (b)whether or not the said period shall be treated as a period spent on duty. (2)Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be. (3)In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe; Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. (4)In a case falling under clause (2) of the period of absence from duty shall be treated as a period spent on duty for all purposes. (5)In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose; Provided that if the Government so desires such authority may direct that the period of absence from duty shall be covered into leave of any kind due and admissible to the Government servant.” The respondent, therefore, did not commit any error in passing the impugned order and in fact when they have made it clear that the period of suspension of the petitioner would be computed towards pension, the requirement of Rule 85 of the Bihar Service Code also has been fulfilled by giving continuity of the period of service in the period of suspension which otherwise could have been a break in his service. This Court, therefore, also does not find any error in the order as contained in Annexure-7. Coming to the order as contained in Annexure-9, 4 counsel for the petitioner could not point out any error in the said order, inasmuch as, this order was passed in compliance of the order of this Court dated 9.1.2001 in an earlier writ application filed by the petitioner claiming payment of salary for period February, 1999 to August, 2000 and that was disposed of by order of this Court dated 9.1.2001 directing the authority to dispose of representation of the petitioner filed for the purpose of claiming payment of salary for the aforesaid period. It is, in fact, in compliance of the said order that the authority in the impugned order while disposing of the representation of the petitioner has held that he was entitled for payment of salary for the period 1.2.1999 to 4.7.2000 and to that extent a direction had been issued to the Principal of Patna Collegiate School. Learned counsel for the petitioner also accepts that the payment of salary for the said period to the petitioner has already been made. Second part of the order is that the petitioner will be only entitled for payment of subsistence allowance from 4.7.2000, inasmuch as, he was placed under suspension and the authority has only recorded that as the order of suspension was continuing till 8.1.2001 and was followed by order of punishment, the petitioner will be, in fact, entitled for payment of subsistence allowance only for the period 29.6.2000 to 8.1.2001. The authority, in fact, has also directed that payment of subsistence allowance for the month of December, 2000 and part of January, 2001 which was in custody of the Principal, Rajkiya Uchcha Vidyalaya, Gardanibagh, 5 Patna. In the opinion of this Court, Annexure-9 only reiterates the earlier decision of the authority contained in Annexure-7 and therefore, if Annexure-7 is valid so must be Annexure-9. That being so, this Court does not find any merit in this writ application which is accordingly dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)