IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10743 of 2010 1. Kamleshwari Rajak S/O Late Jamuna Rajak R/O Vill.- Shivnaranpur, P.S.- Kahalgaon, Distt.- Bhagalpur, At Present Posted As Panchayat Sevak At Khanpur Panchayat, Sultanganj Block, Distt.- Bhagalpur Versus 1. The State Of Bihar Through The District Panchayat Raj Officer, Bhagalpur 2. The District Panchayat Raj Officer, Bhagalpur 3. The Block Development Officer, Sultanganj, Bhagalpur 4. The Panchayat Secretary, Block Office, Sultanganj, Bhagalpur ---------------------------------- 3. 11.11.2011 Heard learned Counsel for the petitioner and the State. This writ petition was filed on 12.7.2010 after serving two copies in the office of the Advocate General staking a claim for salary with regard to the period February 2009 to 9.1.2010 in addition to arrears of salary for February 2005, July 2005, February 2006 and February 2007.The petitioner is stated to be a Panchayat Sewak. A Counter affidavit has been filed very recently on 16.9.2011 on behalf of respondents 2 & 3 affirmed by respondent no. 3. It states that the deponent has gone through the contents of the writ application as also records of the case and has fully understood the same. With regard to the claim for arrears of salary for the years 2005, 2006 and 2007 the counter affidavit states at para 13 that the income tax return for the financial years 2004-2005, 2005-2006 and 2006-2007 were not submitted by the petitioner because of which salary could not be paid. For the period July 2005 to February 2006 the salary could not be paid due to lack of allotment of funds. Para 14 acknowledges that salary even for January 2011 has not been paid. The counter affidavit contends that a report had been called for the 2 defects in the last pay certificate from the Block Development Officer, Jagdishpur which was still awaited. For the period February 2009 to January 2010 the counter affidavit states that the petitioner was absent without information from 25.7.2009 and on 30.6.2009 he filed a petition for leave on medical grounds and remained on leave till 13.8.2009 and joined on 14.8.2009. The petitioner has not submitted his income tax return for the years 2008- 2009 and therefore payment of salary for the month of February 2009 has not been made. Payment of salary is a statutory right. At this stage it remains totally under the domain of the administrator as a routine administrative duty. Salary can be with held only in accordance with law such as during suspension, a finding in a departmental proceeding for unauthorized absence and/or failure to discharge duties. For the periods relating to 2005/2006/2007 the counter affidavit contends no defence in law whatsoever. No provision of the service condition has been cited making it mandatory for the petitioner to file income tax returns. Whether the petitioner had filed the income tax return or not is for the Income Tax Authorities to exercise powers in accordance with law. In so far as the respondents are concerned they are best entitled to deduct the taxable income from his salary and credit it to the Income Tax authorities which are the statutory duty of the respondents themselves. The Court is satisfied of the absence of any justification in law spelt out in the counter affidavit for denial of salary for the said period. In so far as the periods February 2009 to January 2010 is concerned, the counter affidavit is not clear on whether medical leave was sanctioned or not. If it was, the issue has to be considered in accordance with the service conditions as to how the period has to 3 be treated. There are no pleadings for denial of salary for the period in question after accepting the period of medical absence claimed. If there are any allegations against the petitioner they are not proof. Even with regard to the same the respondents have an obligation to act in accordance with law for payment of salary. The matter was taken up for consideration on 8.11.2011 when Learned Counsel for the State, on these queries requested for accommodation till today. He submits after instruction that the counter affidavit may be wanting on certain aspects and that the matter may be adjourned for further counter affidavit. The Court is not persuaded to adjourn the writ petition keeping in mind the short nature of the claim and which has remained pending before this Court for inordinate long period of one and half years. Those holding public office are expected to be more careful more so in a proceeding before the Court when they are making statement on oath. The Court would not like to say any more at this stage. In view of the fact that the respondents themselves have failed to offer proper assistance and or put forth any sufficient justification in law with respect to the claim let the petitioner appear before the District Panchayat Raj Officer, Bhagalpur with a copy of the present order. On the date that the petitioner appears the District Panchayat Raj Officer shall immediately inform him of the date fixed by him for consideration. The original records shall be kept available by the District Panchayat Raj Officer with him on that date. The District Panchayat Raj Officer shall grant personal hearing to the petitioner. If the District Panchayat Raj Officer proposes to rely upon any materials from the original record to deny any salary to the petitioner for any period in question he is obliged to furnish materials to the 4 petitioner and if the petitioner asks for adjournment grant him a suitable time to furnish his defence in the same and in this manner a reasoned and speaking order shall be passed. Let such exercise by the District Panchayat Raj Officer be completed in its entirety, provided the petitioner himself cooperates within a maximum period of two months from the date of receipt and/or production of a copy of this order before him. Needless to state that if the District Panchayat Raj Officer finds justification in the claim or in any part of the claim necessary consequential orders and payment shall be made to the petitioner within the same period. The writ application stands disposed. Snkumar/- (Navin Sinha,J.)