IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.346 of 2009 SUDHIR CHANDRA GAUTAM, Son of Sri Baidya Nath Das, suspended Assistant Teacher of Government Middle School Sipahi Bhagat, Danapur-1, District-Patna and resident of village-Nimagarh, P.O.-Rajpur, Via-Belhar, P.S.-Belhar, District-Banka (Bihar) . ...............Petitioner. Versus 1. The State of Bihar, through the Secretary-Cum-Commissioner, Human Resources Development Department, Government of Bihar, Patna. 2. Director, Primary Education, Government of Bihar, Patna. 3. District Superintendent of Education, Patna, Collectoriate Compound, Patna. 4. Area Education Officer, Patna Sadar-cum-Enquiry Officer, District, Patna. 5. Head Master, Government Middle School, Sipahi Bhagat, Danapur, District-Patna. 6. The Charge Superintendent, Danapur, Nizamat Municipality, Patna. ................Respondents. ----------- For the petitioner: 1. Mr. Nand Kumar Singh, Adv. 2. Mr. Arvind Kumar, Adv. For the State : 1. Mr. S. Arshad Alam, SC-IV. 2. Md. Arif, AC to SC-IV. 3. Gautam Kumar Yadav, AC to SC- IV. 4. Mrs. Anjum Perveen, AC to SC-IV ---------- 03/ 20.04.2010 Heard counsel for the petitioner and the counsel appearing for the State. This application has been filed by the petitioner for quashing the order of suspension dated 17.04.2001 contained in Memo No. 2404, and for a direction to make payment of subsistence allowance, with effect from 17.4.2001 i.e. the date of suspension, as per Rule 96 (I) a (i) of the Bihar Service Code. This is the second round of litigation and almost for the same cause, the petitioner had earlier filed C.W.J.C. No. 15310 of 2007. The ground taken for quashing of the suspension order in the earlier writ application was that till date, suspension order dated 17.04.2001 has not been supplied to him, and subsistence - 2 - allowance has not been paid. Considering the fact that order of suspension being issued in contemplation of the departmental proceeding, the writ application was disposed of directing the District Superintendent of Education; Patna to supply the suspension order to the petitioner within three weeks and petitioner was also directed to appear to receive the suspension order and the charge framed. It goes without saying that subsistence allowance was mandatory to be paid to the petitioner. Petitioner’s case is that, despite this order, he was not served with the suspension order, then he filed M.J.C. No. 396/2008 for initiating a proceeding of contempt against the respondents, and, then only the suspension order was supplied to him. Once, he was served with suspension order, he gave his joining at the headquarter on 19.05.2008. The petitioner has prayed for quashing of the suspension order, on the ground that almost for eight year, since 2001 he is under suspension, but till date the departmental proceeding has not been concluded. Another ground for quashing of the suspension order is non-payment of subsistence allowance. This matter was taken up, for the first time, on 08.03.2010, and a direction was issued to the D.S.E., Patna, for making payment of entire amount of arrears as well as current subsistence allowance to the petitioner, forthwith or latest by one week of the production of the copy of this order. The D.S.E. was further directed to remain physically present in the Court, in case of non-payment of subsistence allowed. A modification application, I.A. No. 3381 of 2010 has - 3 - been filed on behalf of the D.S.E., Patna, for modification of order dated 8.3.2010. In this modification application, it has been stated that, since the petitioner did not join at the headquarters, immediately after the issuance of the suspension order, he is not entitled for receiving subsistence allowance, for the period he has not joined at the headquarter. An order passed by the D.S.E. Patna, dated 22.03.2010 contained in Memo No. 1711 has also been annexed with the modification application, whereby the claim of the petitioner for receiving subsistence allowance for the period he did not join at headquarter has been rejected, in the light of Letter No. 3/M-13039/85-9703 dated 02.08.85. The counsel for the petitioner in reply to the stands taken by the respondents in the modification application, has placed reliance on a decision reported in 1995 (All) PJR 168 (Shankar Mandal Vs. The State of Bihar & Ors.). In this decision, same letter of personnel department was taken up for consideration, and it was held that it is not in consonance with Rules 96 and 97 of the Bihar Service Code, suspended employee cannot be directed to mark attendance at headquarters during period of suspension and obtain permission from the controlling Officer before leaving the headquarters. This cannot be made a condition precedent for payment of subsistence allowance. Counsel for the petitioner has further placed reliance on a recent decision of this Court reported in 2010(2) PLJR 201 (Sandhya Kumari Vs. The State of Bihar and Ors.). In this case also counsel appearing for State had taken stand that unless the suspended employee reports at the headquarters and signs - 4 - attendance register, she cannot claim subsistence allowance. The court dismissed the stand of the State and held that a suspended employee is entitled to be paid his subsistence allowance even without joining at headquarter, since the relationship of master and servant subsists. In this case entire arrears of subsistence allowance with 5% interest along with current subsistence allowance was directed to be paid to the petitioner. Mr. Syed Arshad Alam, counsel for the State has tried to differentiate, in between the facts of the present case and the facts of case reported in 1995 All PLJR168, stating that in the reported decision the employee absented himself after joining at the headquarters but the petitioner in the present case has never joined at the headquarter. The law, on this point, is settled that presence of the suspended employee at the headquarters is not condition precedent for payment of subsistence allowance. A suspended employee is entitled for subsistence allowance, as a matter of right, as relationship of employer and employee still subsists between the parties. I. A. No. 3381 of 2010 filed by the State respondent for modification of order dated 8.3.2010 is rejected. The D.S.E. Patna will make payment of entire arrears of subsistence allowance to the petitioner from the date of suspension, within four weeks. In the counter affidavit also same facts have been stated and endeavour has been made to project that despite all efforts made by the respondent authority i.e. D.S.E. Patna, it was the petitioner, who was not inclined to receive the suspension order. On the other hand, several documents have been - 5 - annexed by the petitioner to indicate that there was no effort on the part of the respondents for supplying the suspension order to the petitioner. A Press communiqué is said to have been published in the daily newspaper in the year 2006, but no documents have been brought on records to show that steps were taken for supply of suspension order and framed charge to delinquent either directly or through registered post on his permanent address. Petitioner was supplied suspension order on 16.04.2008; on 19.05.2008 he gave his joining at headquarter. The respondent District Superintendent of Education, Patna, is directed to make payment of entire arrears of subsistence allowance to the petitioner within four weeks from today. In case of non-payment of arrears of subsistence allowance within this period, the District Superintendent of Education, Patna, will have to make payment of 5% interest on this amount, from his own salary. So far the prayer of the petitioner regarding quashing of the suspension order is concerned, considering the fact that departmental proceeding is going on and there are chances of its completion, within short time, as stated in the counter affidavit by the State and the submission made by the counsel for the petitioner, there is no reason for quashing of the suspension order. However, the departmental proceeding must be completed within three months from today. In case it is not completed within that period, the suspension order issued to the petitioner in the year 2008, shall stand revoked. - 6 - This application is disposed of. Personal appearance of District Superintendent of Education, Patna, is dispensed with. Sanjeet/ (Mridula Mishra, J.)