IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11043 of 2005 1. Vinay Bhushan, son of Rajeshwar Prasad Sinha, Village – Mohan Chak Milko,P.O. – Eslampur, District – Nalanda 2. Sashi Bhushan, son of Rajeshwar Prasad Sinha, village – Mohan Chack Milko, P.O. – Eslampur, District – Nalanda 3. Shailendra Kumar, son of Mithilesh Kumar Sinha, village and P.O. – Poawan, District – Patna ………………. Petitioners Versus 1. The State Of Bihar through the Chief Secretary, Bihar 2. Secretary cum Commissioner, Road Construction Department, Technical Visaswaraya Bhawan, Patna 3. The Chief Engineer (Mechanical), Mechanical Division, Road Construction Department, Government of Bihar, Patna 4. The Superintending Engineer (Mechanical), Mechanical Division, Road Construction Department, Darbhanga 5. The Superintending Engineer (Mechanical), Mechanical Division, Road Construction Department, Patna 6. The Executive Engineer (Mechanical), Mechanical Division, Road Construction Department, Khagaria, Purnea / Saharsa 7. Special Secretary, Road Construction Department, Bihar, Patna ……………. Respondents ---------------------------------- 05. 11.11.2011 Three petitioners were terminated from so called post of Mechanical Assistants vide Office Order dated 24.09.1998 and communication thereof made by virtue of Annexure- 4, 5 and 6. These letters are dated 09.10.1998 and the date of termination shown therein is 29.08.1998. Looking at the time frame, which has gone past and the changed circumstances, the petitioners are confining themselves to the issue of non-payment of their emoluments for the period November, 1997 till so called date of termination order, i.e., 09.10.1998. Engagement of the petitioners does emerge from the so called office order, issued by the Superintending Engineer (Mechanical), which is Annexure- 1 to the Writ Application. Later 2 on, a big hue and cry was raised that a large number of persons have been illegally appointed across the State, creating liability upon the State without following the procedure or authorization in this regard by the superiors. A policy decision, therefore, was taken to terminate the services of almost 883 persons. These three petitioners were included in the list of such persons, who came to be terminated. From the counter affidavit, which has been filed on behalf of the respondents, it is evident that some kind of enquiry was held between the year 1996 to 1998 and the final decision and communication of the decision of termination culminated by way of communication made to various persons, including the present petitioners on 09.10.1998. One thing is glaring that no order of termination can be passed from retrospective date and to that extent the order of termination at the most would be read to mean from the date of its issuance and not from a back date of 29.08.1998. Looking at the stands, which have been taken in this regard on behalf of the petitioners, the Court is not required to go into the legality or otherwise of the orders of termination, but one thing is evident that merely because some exercise was going on at the level of the Government to terminate the services of such persons, so engaged that by itself would not disentitle them from claiming their emoluments or the salary for the period they have worked. There is a clear and categorical statement made in 3 paragraph 9 of the Writ Application that the petitioners were not paid their salary since November, 1997 till their date of termination, i.e., 09.10.1998 and this fact has not been denied by the State in the counter affidavit. Because of generality of submission made in paragraph 3, stating that the petitioners were absent from duty several times on their own will without there being any evidence to support such statement. Even if that submission is taken on the face value, it does not mean that the petitioners were absent continuously for the period in question. If that be so, then such a denial is no denial in the eye of law. A direction therefore is issued upon the respondents, including the Chief Engineer (Mechanical), Road Construction Department that a decision is required to be taken for payment of salary to these petitioners for the period November, 1997 till 09.10.1998 when the impugned order of termination was issued against these petitioners. If there are authentic evidences with regard to absence of the petitioners for the period in question, then those periods may be taken out for the purposes of payment of salary. But, if there are no unimpeachable evidences in this regard, the stand of the State taken in paragraph 3 may not be enough to deny salary to these petitioners for the period in question. Writ is allowed to the extent indicated above. SKM (Ajay Kumar Tripathi, J.)