IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8217 of 2002 SURESH PRASAD SINGH Versus THE STATE OF BIHAR & ORS ----------- 3. 11.02.2009 Heard learned Counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 9.2.1990 and the consequential orders dated 3.2.2000, 28.9.2001 and 19.2.2002 which are the order of punishment and the appellate and memorial orders. Learned counsel for the petitioner submits that the order dated 5.5.1988 was bad inasmuch as it treats him under retrospective suspension with effect from 16.4.1984; that there could be no retrospective order of suspension. The petitioner appears to have gone on leave without sanction. He applied for subsequent sanction which appears to have been granted when it was discovered that he has concealed that during this period of absence he had been taken into custody in a private dispute on 16.4.1984 and was released on 17.4.1984. For this act of his, of concealment, he was proceeded with departmentally. In the departmental enquiry he was held guilty of concealment and it was held that he was not entitled to the suspension allowance for the period of suspension from 16.4.1984 till the date of order in the departmental proceeding when the suspension was revoked i.e. 6.2.1990. Learned counsel for the State urged that the petitioner had been found guilty in a departmental proceeding of unauthorized absence and concealing his custody during the period of absence when punishment has been imposed after providing full opportunity. 2 The petitioner was suspended by order dated 5.5.1998 and departmental proceedings were started against him for this act of concealment of his custody and obtaining sanctioned leave for that period. In the departmental proceeding final orders came to be passed on 6.2.1990. The leave sanction obtained by concealment was cancelled. He was deemed to be suspended from 16.4.1984 till 6.2.1990 and it was ordered that nothing beyond subsistence allowance shall be payable for the period of suspension. The petitioner was taken into custody on 16.4.1984 and released on 17.4.1984. The question of any retrospectivity of suspension for these two days does not arise as there is deemed suspension under the law by virtue of Rule 99 of the Bihar Service Code for the period of custody. That leaves the period from 18.4.1984 till 6.2.1990. Retrospective suspension is a phenomena unknown to the service jurisprudence. Suspension cannot be a mode of punishment. It is equally settled law that if an order can be severed from the good and the bad part, the Court would lean in favour of saving good part interfering with the bad part only. The Supreme Court while dealing with the order of retrospective termination in (1966) 2 S.C.R. 204 (R. Jeevaratnam v. The State of Madras) at page 207 noticed as follows: “……….An order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is 3 invalid, there is no reason why the first part of the order should not be given the fullest effect. The Court cannot pass a new order of dismissal, but surely it can give effect to the valid and severable part of the order. “ This Court, therefore, holds that the impugned order of suspension dated 5.5.1988 is vitiated in so far as it purports to suspend the petitioner retrospectively from 18.4.1984 till 4.5.1988. The order is quashed to that extent. In the nature of the allegations against the petitioner, this Court is not persuaded to interfere any further in the matter. The writ application is allowed but only to the extent indicated. The petitioner shall be entitled to his monetary benefits for the period from 18.4.1984 to 4.5.1988. AKS/ (Navin Sinha, J.)