IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9333 of 2005 RAM DULAR PANDEY Versus THE STATE OF BIHAR & ORS ----------- 7. 16.4.2010. Heard Mr. Ashutosh Ranjan Pandey learned counsel for the petitioner and Mr. Shashi Shekhar Prasad Sinha, learned Assisting Counsel to G.P.-9 for the State. The petitioner is aggrieved by the action of the authorities in depriving him of his pay and allowances by restricting the same to the subsistence allowance drawn by him under the order bearing memo no.2375 dated 4.11.2004 (Annexure-7) issued under the signature of the District Superintendent of Education, Rohtas, Sasaram. The petitioner also prays for payment of the increment admissible to him in July, 2004 which was denied to him for the reasons that as he was under suspension and his pay and allowances were restricted to the subsistence allowance hence, he was not entitled to the increment due in July, 2004, as it fell within the suspension period. The facts leading to the present situation is eloquent from an order appended at Annexure-G of the counter affidavit of the District Superintendent of Education, Sasaram contained in memo no.467 dated 5.10.2006. It appears that the 2 petitioner, an Assistant Teacher, was deputed for election duty during the Lok Sabha Election, 2004 but he did not chose to accept the said posting as communicated under letter no.369 dated 13.4.2004 of the Block Development Officer, Nasriganj. For the failure in cooperating with the election duty, the petitioner was put under suspension under the orders of the District Magistrate-cum-District Election Officer, Rohtas as contained in memo no.466 dated 10.5.2004 (Annexure-1). Following the order of suspension, the Block Education Officer, Nokha was appointed as the Enquiry Officer to inquire into the allegation of dereliction of duty by the petitioner who submitted his report on 17.9.2004 placed on the records of the proceedings vide Annexure-L to the third supplementary counter affidavit filed by the District Superintendent of Education, Sasaram. The only charge set out against the petitioner was that though he was present at the training session for being sent for election duty but when the order appointing him on the election duty was tried to be served upon him, he refused to accept the same on pretext of illness. The enquiry report present at Annexure-L accepts the reasoning of the petitioner and mentions that 3 though the petitioner was present at the election training but by reason of sudden illness, he was admitted with a doctor. The Enquiry report, in fact, supports the defence set out by the petitioner and manifestly exonerates him of the charges. The report was followed by an order of revocation of suspension contained in memo no.2375 dated 4.11.2004 (annexure-7) whereby while revoking the suspension of the petitioner, the District Superintendent of Education, Rohtas, Sasaram has been pleased to reduce his pay and allowances to the subsistence allowance received by him during the said period. The order(s) as present at Annexure-7 and Annexure-G of the counter affidavit shows that the said order was passed on the direction of the District Magistrate-cum-Election Officer, Rohtas. Learned counsel for the State could not produce any order culminating the departmental proceedings initiated against the petitioner. The absence of any order in the departmental proceedings in the light of the Enquiry report submitted by the Inquiry Officer manifestly implies that the proceedings were dropped as against the petitioner. Having reached such a situation, the order 4 as contained in Annexure-7 and Annexure-G restricting the pay and allowances of the petitioner to his subsistence allowance was in the teeth of the provisions of Rule 97 of the Bihar Service Code. That no proceedings as envisaged under Rule 97 of the Bihar Service Code was either initiated or any order was passed, renders the order present at Annexure-7 and Annexure-G in so far as the restriction of pay and allowances of the petitioner is concerned, even more vulnerable and cannot be upheld and the same is set aside to that extent. The petitioner would be entitled to his regular salary for the period under suspension and the consequential benefits. Natural consequence of the aforesaid order would be that the objection raised by respondents in para-14 of the counter affidavit regarding denial of increment to the petitioner, would be without any support base. Apart from the aforesaid position, this court in a case arising from C.W.J.C.No.5340 of 2005 (Kanti Kumar Singh Vrs. The Bihar State Electricity Board and others) disposed of on 15.10.2000, has already held that the notional benefits of increments even during the suspension period can not be withdrawn and would be admissible to the 5 employee concerned as the non-admissibility thereof amounted to imposition of a penalty without holding any departmental proceedings. Having held as such, the writ petition is allowed. The order as contained in Annexure-7 and Annexure-G restricting the pay and allowance of the petitioner to the subsistence allowance are set aside. The petitioner shall be entitled to the salary for the period under suspension as also to the consequential benefits including the increments earned during the said period and which should be calculated and paid within a period of three months from the date of receipt/production of a copy of this order. ahk (Jyoti Saran, J.)