IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3378 of 2007 PHANINDRA KUMAR son of Late Ram Prit Prasad resident of village Sikaria, P.S. Chandi, District Nalanda, retired Assistant Teacher (English) High School, Saidanpur, Masarhi, Patna. Versus 1. THE SECRETARY(SECONDARY EDUCATION) Department of Humjan Resources, Government of Bihar, Patna. 2. The Director, Secondary Education, Government of Bihar, Patna. 3. The District Education Officer, Nalanda. 4. The Accountant General, Bir Chand Patel Path, Bihar, Patna. ----------- 2 28.09.2010 Heard Mr. R.K.Rajan, learned counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That by this writ application the petitioner prays for issuance of writ in the nature of CERTIORARI or an order/ orders, direction/ directions for quashing of the punishment as mentioned to the last sentence of ultimate paragraph of order in memo no.476 dated 01.02.07 passed by respondent No.1 whereby he has observed that the increment withheld, be released and the remaining punishment shall be operative. And That by appropriate order respondent no.1 be directed to revise the pension, gratuity etc. in respect of P.P.O. No.424329, pension case no. P.R. 17 (05-06).” Admittedly the petitioner is an Assistant Teacher and he was earlier inflicted a punishment on the basis of a departmental proceeding by an order dated 1.7.2002, which reads as follows:- “1&,d osruo`f) lapk;kRed izHkko ls jksdk tkrk gS A 2&fuyacu vof/k esa thou fuokZg HkRrk ds vfrfjDr dqN Hkh ns; ugha gksxk A 3&bldh izfof"V yky dye ls budh lsok iqfLrdk esa vafdr djrs gq, ,d 2 lIrkg ds vUnj vuqikyu izfrosnu Hkstsa A 4&Jh Q.khUnz dqekj] l0 f”0] m0 fo0 Qqyokjh”jhQ] iVuk dks iz”klfud n`f"Vdks.k ls LFkkukUrfjr djrs gq, m- fo0 lSneiqj elks<h] iVuk esa vaxzsth fo"k; ds fjDr in ds fo:) inLFkkfir fd;k tkrk gS A 5&fo/kky; iz/kku dks funs” fn;k tkrk gS fd Jh dqekj i= izkfIr ds lkFk gh u;s inLFkkfir fo/kky; esa ;ksxnku gsrq fojfer dj nsa A Such order having been affirmed in appeal as well, the petitioner had moved before this Court in C.W.J.C. No.15263 of 2005 and this Court by order dated 22.11.2006 had directed the appellate authority to reconsider his decision and pass a reasoned order, whereafter the appellate authority had passed the following order:- “mDr n.M ds fo:) Jh dqekj }kjk ekuuh; mPp U;k;ky;] iVuk esa ;kfpdk la0& 15263@05 nk;j fd;k x;k A ekuuh; mPp U;k;ky; }kjk fn0& 22&11&2006 dks ikfjr fd;s x;s vkns” ds vkyksd esa vkosnd }kjk vihyh; vkosnu lfpo] ekuo lalk/ku fodkl foHkkx ds lEk{k izLrqr fd;k x;k] ftlij lfpo }kjk fuEukafdr vkns” ikfjr fd;s x;s A Vkjksi ,oa tkWp ink0 dk izfrosnu ns[kk A izfrosnu ds vkyksd esa ltk vf/kd gS A osru o`f) lapk;kRed izHkko ls jksds tkus dh ltk fujLr dh tkrh gS A ”s"k dk;e jgsaxsa A vr%lfpo] ekuo lalk/ku fodkl foHkkx }kjk vihyh; vkosnu ij ikfjr fd;s x;s vkns” ds vkyksd esa Jh Q.khUnz dqekj] l0 f”0 dks ,d osruo`f) lap;kRed izHkko ls jksds tkus dh ltk dks fujLr fh tkrh gs A ”s"k ltk dk;e jgsaxsa A g0@& funs”d @ek/;fed f”{kk@ fcgkj] iVuk A Counsel for the petitioner would submit that even this order dated 1.2.2007 as communicated to the petitioner as with 3 regard to continuation with the remaining punishment even after dropping of the punishment of withholding of one increment with cumulative basis is bad as the petitioner on account of the appellate order has been deprived from receiving payment of salary for the period of suspension. In this context he has referred to the provisions of Rule 97 of the Bihar Service Code as also judgment of the Division Bench in the case of „Dinesh Prasad Vs. State of Bihar & Ors.’ reported in 2006 (4) PLJR 514 laying down that the stoppage of salary for the period of suspension pursuant to an order of departmental proceeding is to be passed only after giving an opportunity of hearing to the delinquent employee. In this case, the appellate authority had passed an order on remand by this Court and he had interfered with the quantum of punishment by reducing the punishment and therefore the Director of Secondary Education had no occasion to deal with the matter. The grievance of the petitioner therefore with regard to reduced order of punishment also containing a penalty of withholding of salary for the period of suspension beyond subsistence allowance can be only looked into by the Director Secondary Education now when the appellate authority has passed order on 1.2.2007. It has to be kept in mind that the petitioner was not exonerated from the charges and therefore the order of suspension cannot be held to be unjustified in terms of Rule 97 (1) and (2) of 4 the Bihar Service Code and therefore the Director of Secondary Education has to take decision himself as to whether for the misconduct alleged against the petitioner and the charge having been proved and the order of punishment approved even by the appellate authority would also refuse withholding of the salary for the period of suspension. That being so, if the petitioner would approach the Director, Secondary education with a copy of this order, he would pass a fresh order as with regard to payment of salary for the period of suspension in terms of Rule 97 of the Bihar Service Code within a period of six months from the date of receipt/production of a copy of this order. Let it be made clear that this Court has not interfered with the order of punishment dated 1.7.2002 and has remitted the matter back only for the purpose of passing a fresh order as with regard to payment of salary for the period of suspension. With the aforementioned observations and directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)