IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5346 of 2005 INDRA NARAYAN CHAUDHARY, son of late Kalikant Chaudhary, resident of village Raja (Goth), P.S. Manigachhi, District Darbhanga … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Health, Govt. of Bihar, Patna 3. The Director-in-Chief, Department of Health, Govt. of Bihar, Patna 4. The Regional Deputy Director, Department of Health, Laheriasarai, Darbhanga 5. The Civil Surgeon, Madhubani 6. The Incharge Medical Officer, Primary Health Centre, Khutauna, Madhubani 7. The Treasury Officer, District Madhubani 8. The Accountant General, Bihar, Patna … Respondents ----------- 4. 6.8.2010 Heard counsel for the petitioner and the counsel for the State as also the Accountant General. The prayer of the petitioner in this writ application reads as follows: “I. To direct the respondents to pay the arrears of the full salary of the petitioner to him of the period 1.10.1986 to 1.9.1987 and 2.9.1987 to 30.11.1989 and that of the half of his salary of the period from 1.12.1989 to 29.11.1985 and any other such amounts due to him and other consequential benefits arising therefrom and statutory/ penal interests thereon.” Simple that the aforesaid prayer 2 may appear in the first glance, its true extent and ramification is quite complex. The petitioner was subjected to an order of suspension pursuant to a criminal case filed against him on 6.7.1987. The charge against the petitioner was defalcation of Government money to the tune of Rs. 15,000/-. During the pendency of the aforementioned criminal case the suspension order was revoked on 29.11.1995 and thereafter the petitioner was convicted and sentenced by the trial court vide judgment dated 6.2.1997 for offence under sections 408 and 409 of the Indian Penal Code for three years S.I. on each count. The petitioner, therefore, was a convicted person on or after 6.2.1997 but was allowed to continue in service till the date of his retirement i.e. 31.1.1998. Subsequently the said judgment of conviction passed by the trial court was set aside by the appellate court on 16.1.1999. The order of suspension when it was revoked in the year 1995 had stipulated that the payment of salary of the petitioner would be made after conclusion of the departmental proceeding. No such departmental proceeding 3 is said to have been drawn against the petitioner probably on account of pendency of the criminal case having same charge of embezzlement. Now the petitioner claims full salary for the period of suspension as also revision of retirement benefit on the basis of last admissible pay by treating as if no order of suspension was ever passed against him in view of his acquittal by the competent court. In the counter affidavit respondents have also given no satisfactory answer. One thing, however, is clear that the petitioner is getting pension of course at reduced rate probably by treating his reduced pay and/or subsistence allowance to be his last salary. If, however, the petitioner’s claim in this writ application is allowed he would be entitled for payment of full salary for the period of suspension and consequential revision of his retirement benefit on the basis of last salary which he could have drawn. As the petitioner was under suspension and a criminal case was pending against him, the authority will be entitled to initiate a proceeding under Rule 4 43(b) and take a decision as to whether the petitioner was actually guilty for the charges framed which could not have been proved in the criminal court due to non- production of evidence as is clearly recorded in the appellate court order. Let it be kept in mind that the trial court on the same set of evidence had found the petitioner guilty and had convicted him but those materials were found to be insufficient by the appellate court. In that view of the matter, this Court would give liberty to the Director-in-Chief to reconsider the whole issue with an angle as to whether the twin test, gross misconduct and/ or misappropriation of Govt. fund, the only two grounds on which the proceeding under Rule 43(b) can be initiated, is fulfilled in the case of the petitioner. If it is found by the Director-in-Chief that there is material for either of the two misconduct he would initiate a proceeding under Rule 43(b) and get the same adjudicated as early as possible but not later than nine months from the date of receipt/ production of a copy of this order. 5 Depending on the aforementioned result of the departmental proceeding the petitioner’s claim for payment of salary for the period of suspension will be decided. In the event the Director-in-Chief will find that no proceeding under section 43(b) can be drawn against the petitioner he would pass a clear order to this effect so that the petitioner’s salary and emolument becomes payable and his retirement benefit is also revised. In order to expedite the matter this Court would give liberty to the petitioner to file a compact representation to the Director-in-Chief, Health Services, Govt. of Bihar, alongwith a copy of the order of suspension, its revocation, judgment of conviction by the trial court and acquittal by the appellate court so that the claim of the petitioner can be decided in the aforementioned time frame. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/ 6