IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4863 of 2008 MANOJ KUMAR RANJAN, SON OF SRI BASUDEV MALAKAR, RESIDENT OF BAISHA, P.S. PARWATA, DISTRICT KHAGARIA. ------ PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, BUILDING CONSTRUCTION HOUSING DEPARTMENT HAVING HIS OFFICE IN VISHWESHARAIYA BHAWAN, P.S. SHASTRINAGAR, DISTRICT PATNA. 2. THE FINANCE COMMISSIONER, FINANCE DEPARTMENT HAVING HIS OFFICE IN OLD SECRETARIAT, P.S. SACHIVALAYA, DISTRICT PATNA. 3. THE EXECUTIVE ENGINEER, BUILDING DIVISION, BUILDING CONSTRUCTION DEPARTMENT, SUPAUL. 4. THE EXECUTIVE ENGINEER, BUILDING DIVISION, BUILDING CONSTRUCTION DEPARTMENT, CHAPRA. 5. THE EXECUTIVE ENGINEER, ADVANCE PLANNING DIVISION NO. 2, BUILDING CONSTRUCTION DEPARTMENT, PATNA. 6. THE TREASURY OFFICER, SECRETARIAT, TREASURY, HAVING HIS OFFICE IN VISHWESHARAIYA BHAWAN, P.S. SHASTRINAGAR, DISTRICT PATNA. 7. THE CHIEF ENGINEER (SOUTH) BUILDING CONSTRUCTION DEPARTMENT, PATNA. --- RESPONDENTS For the petitioner :- Mr. Rupak Kumar, Advocate For the State :- Rishiraj Sinha, G.P. 19 Archana Prasad, A.C. to G.P. 19 ----------- 2 25.4.2011 The petitioner was working as a Junior Engineer in the Building Division of the State Government. He was dismissed from service on 31.1.2008 in lieu of a departmental proceeding. This writ application has been filed for payment of his salary during the period (a) 1.6.2005 to 31.7.2005 (b) 1.11.2005 to 9.5.2007 and (c) August, 2005 to October, 2005, for which period he has been paid the initial pay only. He has also made a prayer that he must be granted increments from 2002 2 onwards and arrears of differences of salary from 10.5.2007 to 31.1.2008. In the counter affidavit filed, it has been mentioned that the petitioner was not paid his salary for June, 2005 on the ground that he had not filed an application stating that he had not participated in the strike. Learned counsel for the petitioner refers to Annexure-2 which is a letter issued by the Executive Engineer, Advance Planning Division No. 2, Patna which indicates that the petitioner’s salary is due from 1.6.2005 to 31.5.2007. It may be noted that this letter was issued just a day prior to the order of dismissal, however, this letter indicates that in fact it could not have been issued unless the petitioner had duly submitted his application to say that he was not on strike during the relevant time. The contention in the counter affidavit is that the petitioner was absent for certain period and, therefore, he has not been granted salary from 10.5.20079.5.2008. A stand has also been taken that he could not have been paid the differences of his pay scale for three 3 months for the reason that the last pay certificate of the Building Division, Supaul was not available. The fact remains that the contention of the State counsel that the petitioner was absent from service, that he had taken an advance and not repaid it, that he had not supplied his income tax return or that he had not submitted an application saying that he was not on strike, cannot be ground for withholding the said amounts. In the disciplinary proceeding if no action has been taken or no order has been passed specifically with respect payment of withholding of the salary of the petitioner or withholding any part of his dues, the State now cannot come up with the stand that he would not be paid because he was absent during the relevant time unless the finding of the disciplinary authority is to that effect. In the result, this Court directs that the petitioner should submit his application before the Engineer-in-Chief, Building Construction Department, Patna showing that he was not on strike and make 4 an application with respect to his dues. The decision will be taken by the Engineer- in-Chief, Building Construction Department, Patna after seeking whatever clarification is necessary from the Executive Engineer, Advance Planning Division No. 2, Building Construction Department, Patna within a period of four months on receipt of a copy of this order. In case there is no order by the disciplinary authority regarding withholding of the sums mentioned in the representation of the petitioner, it goes without saying that the petitioner will be entitled to receive those amounts. This writ application is disposed of with the aforesaid directions. Sanjay ( Sheema Ali Khan, J.)