IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3940 of 2010 1. TULSI RAM S/O LATE SINGHSHAN RAM R/O VILL.- JATUA, P.S.- CHAPRA MUFFASIL, DISTT.- SARAN AT CHAPRA Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE SARAN AT CHAPRA 3. THE SUB-DIVISIONAL OFFICER SADAR CHAPRA ----------- 2. 23.9.2010 Heard learned counsel for the petitioner and the State. The petitioner was placed under suspension by order dated 11.6.2003. He came to be dismissed by order dated 9.8.2005. On challenge, this Court in C.W.J.C. No. 8209 of 2005 noticed that he was in custody and was prevented from effectively contesting the departmental proceeding for reasons beyond his control leading to an ex parte finding. The punishment was set aside. Directions were given to proceed with the departmental proceedings afresh after grant of opportunity. The departmental proceedings are still pending. The petitioner was reinstated by order dated 28.6.2007 under suspension with retrospective effect from date of dismissal i.e.,9.8.2005. The petitioner questioned the prolonged suspension in Service Appeal No. 185 of 2008 before 2 the Commissioner, Saran Division. By order dated 8.12.2008 the Commissioner opined that prolonged suspension from 9.8.2005 was unjustified. Suspension set aside with directions to conclude the departmental proceedings expeditiously. Learned counsel for the petitioner submits that the petitioner has not been paid subsistence allowance from 11.6.2003 till dismissal on 9.8.2005. The grounds noticed in C.W.J.C. No. 8290 of 2005 with regard to his custody are also urged as a defence to claim subsistence allowance. Having heard counsel for the State on this aspect, this Court is satisfied that for like reasons as discussed in C.W.J.C. No. 8209 of 2005 with regard to custody etc. the petitioner is held entitled to his subsistence allowance for the period 11.6.2003 to 8.8.2005. The next submission is that if the termination was set aside by the Court on 11.4.2007 and reinstatement has followed on 28.6.2007, there is no justification to deny full salary for the period from 9.8.2005 till 27.6.2007. There can be no retrospective suspension with effect from 9.8.2005. The suspension would be operative from 28.6.2007 only. 3 Counsel for the State submits that even if that were correct the petitioner is not entitled to full back wages as a matter of course when the order of punishment was not set aside on merits but on technicalities. Learned State Counsel next relies upon Rule 9(5) of the Bihar C.C.A. Rules, 2005 to submit that the legislature has clearly provided that when the Court on technical grounds without going into the merits of the case sets aside the order of dismissal, the Government servant on reinstatement shall be deemed to have been placed under suspension from the date of the original order of dismissal. In reply counsel for the petitioner urged that once the Commissioner has set aside the order of suspension dated 9.8.2005, the provisions of Rule 9(5) have no application and the petitioner is held entitled to his full salary from the date of suspension till it is set aside by the Commissioner. If the language of the statue is clear and of no ambiguity, there is no occasion for the Court but to strictly follow the will of the legislature. This Court does not consider it necessary to discuss the principle of interpretation in view of the clear recitals contained in Rule 9(5). 4 The Legislative mandates permits suspension of the petitioner from 9.8.2005 in the facts of the case. By a fiction the Government servant stands reinstated but under suspension. What shall be the effect of the order of the Commissioner setting aside the order of suspension dated 9.8.2005 and in what manner the period from 9.8.2005 to 8.12.2008 is to be considered is for the disciplinary authority to decide in exercise of powers under Rule 97 of the Bihar Service Code in the final order on the departmental proceedings. In the case of ECIL v. B. Karunakar, (1993) 4 SCC 727, at paragraph 31, the Supreme Court has held that :- 31...... Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is 5 directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law. Any claim for salary prior to the suspension dated 11.6.2003 is an entirely different matter and has to be considered on the simple principle that if the petitioner has worked he is entitled to his salary. Let the claim for salary prior to the date of initial suspension and the departmental proceedings itself both be complied with within a maximum period of six months from the date of receipt/production of a copy of this order. The latter part being conditional to the cooperation from the petitioner. Learned counsel for the petitioner submits that directions for expeditious conclusion of the proceedings have been given on more than one occasion unsuccessfully. The departmental proceedings Rules provide for proceeding to be concluded within six months. That shall be 6 computed from the date of presentation of a copy of this order before the disciplinary authority. The disciplinary authority is also permitted to proceed ex parte if necessary to complete proceeding within that time but only after recording reasons for its satisfaction of the need to do so, the efforts made to persuade the petitioner to participate and his steadfast refusal to co-operate. The writ application stands disposed. P. Kumar ( Navin Sinha, J.)