IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5651 of 2002 YUGAL KISHORE PRASAD VERMA son of Late Kedar Nath Verma, Resident of Village- Dumarson, P.O. and P.S. Tikarb, District- Gaya, at present posted as Non-Medical Assistant, Leprosy Control Unit, New Centre, Sonebhadra, Karpi, District- Jehanabad. Versus 1.THE STATE OF BIHAR 2.Director-in-Chief, Health Services, Government of Bihar, Patna. 3.Director, Health Services, Bihar Patna. 4.State Leprosy Eradication Officer, Bihar, Patna. 5.Civil Surgeon-Cum- Chief Medical Officer, Jehanabad. 6.Incharge, Medical Officer, Leprosy Control Unit, Jehanabad. 7.District Leprosy Eradication Officer, Jehanabad, Gaya. ----------- 4 12.07.2010 Heard counsel for the petitioner. Prayer of the petitioner in this writ application reads as follows:- “(i)For quashing the order vide Memo No.107 (11) dated 16.3.2001 issued under the signature of Director, Health Services, Bihar, Patna, by which representation filed by the petitioner in compliance of the order dated 21.6.2000 passed in C.W.J.C. No.2580 of 1999 has been disposed of and further it has been held that the petitioner has not been discharging his duty since 20.11.1998 and as such on the principle of no work no pay his salary shall not be paid till he assumes his duty. (ii)For commanding the respondents to pay the petitioner‟s arrears of salary as well as current salary due to him since 2.11.1998. (iii)For holding that the impugned order dated 16.3.2001 contained in Annexure-1 is based on wrong assumption of facts, extraneous and irrelevant consideration.” Learned counsel for the petitioner in support of the aforementioned prayer would submit that grievance of the petitioner now stands confined to payment of salary for the period 2 2.8.1996 to 20.5.1997 and also for the period 2.11.1998 to 20.12.1998. He has pointed out that the services of the petitioner has since been allocated to the State of Jharkhand in the final allocation made by the Government of India pursuant to th exercise made under Section 74 of Bihar Reorganisation Act 2000 but his salary in the State of Jharkhand also has not been paid on account of non issuance of „Last Pay Certification‟ (L.P.C.) by the State of Bihar. In this case, though counsel for the State of Bihar has not appeared, a counter affidavit has been filed on behalf of respondent no.5, the Civil Surgeon of Jehanabad district, who in fact has only stated that the order passed by the authority, Director, Health Services, rejecting representation of the petitioner for payment of salary for the period in question is justified on the principles of „no work no pay.‟ It has further been stated that the petitioner cannot claim leave as a matter of right. In paragraph 12 of the counter affidavit a stand has also been taken by the Civil Surgeon, Jehanabad that the admitted arrears of salary and subsistence allowance has already been paid to the petitioner way back on 31.3.2001. From a bare reading of the impugned order it becomes clear that the period in question, 2.8.1996 to 20.5.1997, is covered by the period of suspension of the petitioner. The petitioner in fact was placed under suspension by an order dated 2.8.1996, pending departmental proceeding. It was however found later on that the 3 charges against the petitioner in the said departmental proceeding could not be proved and as such order of suspension was revoked on 10.10.1998. In the opinion of this Court the moment charges were not proved against the petitioner, his order of suspension became unauthorized in terms of Rule 97 of Bihar Service Code and consequently he had become entitled to get full payment of his salary. In that view of the matter, the reasons given in the impugned order for denial of payment of salary of the petitioner for the period 2.8.1996 to 20.5.1997 on a specious plea that he was absent from the headquarter during the period of suspension on account of illness cannot be sustained, inasmuch as, if in the period of suspension under the old rules he was not required to mark attendance he cannot be held to be absent from the head quarters during the period of suspension specially when his such absence did not cause any impediment in conducting the departmental proceeding. Thus withholding payment of his salary and/or subsistence allowance for the aforesaid period of his suspension is impermissible in law and accordingly this court would hold that the petitioner is entitled for payment of his full salary for the period 2.8.1996 to 20.5.1997. As with regard salary for the period 2.11.1998 to 19.11.1998 there is no dispute that the petitioner after revocation of his suspension has submitted his joining report and was posted in the Leprosy Eradication Scheme on 2.11.1998. Thus, for the 4 period petitioner remained waiting for posting from 2.11.1998 he is again entitled for payment of full salary. It is however only the period of 20.11.1998 to 20.12.1998 for which no salary would be payable to him in view of the finding that despite being posted in the Leprosy Scheme, the petitioner did not submit his joining and/or had discharged his duty. There being no conclusive proof produced by the petitioner as with regard to his working in the aforementioned period, i.e, 20.11.1998 to 20.12.1998, this Court must hold that the petitioner is not entitled for payment of salary for the aforesaid period. Nonetheless, for the period 20.11.1998 to 20.12.1998, this Court would direct the authority to grant admissible leave to his credit or even extraordinary leave to the petitioner so that he does not suffer at the time of his retirement on account of break in his service. Specially when this period of one month is well within condonable limit prescribed under Rule 103 of Bihar Pension Rules. This Court is not aware of the reasons for non issuance of Last Pay Certificate of the petitioner pursuant to his allocation to the State of Jharkhand in the year 2007. In fact scope of this writ application filed in the year 2002 also cannot be expanded to include any further cause of action which must remain, in absence of any amendment in the prayer, confined to the only prayer made in paragraph 2 of the writ application. It, however, goes without saying that if there be no 5 impediment in issuance of L.P.C, to the petitioner by the State of Bihar the same should be issued so as to enable the petitioner to draw his salary for the period of his working in the State of Jharkhand. This Court, however, must immediately clarify that the question of issuance of L.P.C. having been not gone in the impugned order contained in Annexure-1, it will be open to the authority to take any appropriate decision in this matter strictly in accordance with law. In the result this application is allowed in part to the extent that the impugned order as contained in Annexure-1 would stand modified by holding that the petitioner would be entitled for payment of his full salary and allowances for the period from 2.8.1996 to 20.5.1997 and 2.11.1998 to 19.11.1998. The impugned order as with regard to payment of salary for any other period including 20.11.1998 to 20.12.1998 however, for the reasons indicated would require no interference and is affirmed. With the aforementioned observations/directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)