IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.552 of 2004 SHYAM KUMAR DWIVEDI, son of Sri Dr. Bachaspati Dwivedi, at present working as Lecturer in Economics in Seth Ram Niranjan Das Murarka Sanskrit College, Chowk Patna City, District Patna … Petitioner Versus 1. KAMESHWAR SINGH DARBHANGA SANSKRIT UNIVERSITY, Kameshwar Nagar, Darbhanga through its Registrar, Sri Chauthi Sadai 2. The Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Kameshwarnagar, Darbhanga 3. The Registrar, Kameshwar Singh Darbhanga Sanskrit University, Kameshwarnagar, Darbhanga 4. The Governing Body, Seth Ram Niranjan Das Murarka Sanskrit College, Chowk, Patna City District Patna through its Secretary 5. The Incharge Principal, Seth Ram Niranjan Das Murarka Sanskrit College, Chowk Patna City, District Patna … Respopndents ----------- 5. 2.8.2010 Heard counsel for the petitioner and the counsel for Kameshwar Singh Darbhanga Sanskrit University as also the In-charge Principal, respondent no.5. The prayer of the petitioner in this writ application reads as follows: “(i) Issuance of a writ in the nature of mandamus directing and commanding the respondents to pay the due salary and other emoluments to the petitioner from the month of February 2000 till date with interest @ 18%P.A. and also the current salary on month to month basis which is withheld without any rhyme and reason and to allow the petitioner to put his attendance 2 along with other staffs by placing the attendance register in College. (ii) Issuance of further writ in the nature of the mandamus directing and commanding the respondents to pay the arrear due salary and other emoluments to the petitioner for the period February, 1995 to September, 1995 with interest @ 18% P.A. in pursuant to the direction of the university as contained in letter No. A/584/2001 dated 28.7.2001. (iii) Issuance of an appropriate declaration and holding that on one hand the arrear salary of two teachers namely Sri Ram Sagar Mishra and Sri Braj Mohan Tiwary have been paid their arrear salary for the period February, 1995 till September, 1995 in pursuant to the direction of the University contained in letter No. 584/01 dated 28.7.2001 but the petitioner has not been paid his legal due in pursuant to said letter and thus a hostile discrimination has been shown to the petitioner. (iv) Issuance of an appropriate declaration that once petitioner has been continuously attending the College and at no point of time his services have been question marked nor any departmental proceeding is either pending or contemplated 3 against him, there is no justification to restrain him from putting his attendance along with other teachers in spite of order of the University (although he is putting his attendance in separate register) and to withhold his due salary from the month of February, 2000 till date without showing any rhyme and reason either by the Governing Body or by the Incharge Principal in spite of repeated direction of the University to pay the same.” With regard to the aforementioned prayer learned counsel for the petitioner would submit that strictly speaking the petitioner has now only two fold grievance with regard to his service condition, namely, payment of salary for the period February, 1995 to September, 1995 as also from the period of February, 2000 onwards till date and that the Principal is the person who is not allowing him to function on the post of Lecturer in the Department of Economics in Seth Ram Niranjan Das Murarka Sanskrit College, Chowk, Patna City, in the district of Patna (hereinafter referred to as „the College‟). In this context he has 4 relied on two communication dated 2.2.1999 and 28.7.2001 to contend that as with regard to payment of salary for the period of February, 1995 to October, 1995 though the bill was submitted by the earlier In-charge Principal Chandra Bhushan Mishra, respondent no.5, his successor did not do the needful for certifying those bills. This aspect of the matter seems to be an admitted fact and therefore, when the University itself was satisfied with regard to entitlement of the petitioner for payment of his salary for the period February, 1995 to October, 1995 his first part of the relief, namely payment of salary for the period February, 1995 to September, 1995 seems to be justified and is accordingly allowed. The Principal In-charge is hereby directed to do all needful at his level so that the payment of salary of the petitioner for the period February, 1995 to September, 1995 is made by the University within a period of three months from the date of receipt/ production of a copy of this order. As with regard to second portion of payment of salary i.e. for the period 5 February, 2000 onwards and till date there is a serious dispute, inasmuch as it appears from the counter affidavit filed by the In- charge Principal that not only he had repeatedly found the petitioner absent from duty but even in course of inspection by the higher authorities of the University including the Pro Vice-Chancellor and the Vice Chancellor the petitioner was found absent from duty. In such a situation the plea of the petitioner that though he was present in the College and yet the Principal did not mark his presence or the Principal was somehow instrumental in showing the petitioner absent from duty cannot be effectively adjudicated without going into oral and documentary evidence. This exercise, however, cannot be made by this Court in its jurisdiction under Article 226 of the Constitution of India and in fact as would also appear from the prayer of the petitioner in form of his seeking declaration for this purpose can be effectively gone into only in a properly constituted civil suit, where all the parties will have full opportunity to lead 6 their evidence. Thus, the prayer of the petitioner for a direction for payment of salary from February, 2000 onwards is not allowed by this Court with a liberty/leave to the petitioner to file a suit for this purpose. One thing, however, is admitted that the petitioner is still continuing in service because his services have not been terminated and infact no departmental proceeding has been drawn against him by the Governing Body for the alleged unauthorised absence and therefore, the relationship of employee and the employer betweens the petitioner and the Governing Body of the College still subsists. In that view of the matter, if the petitioner would submit his joining without prejudice to his rights of claiming salary for the period February, 2000 onwards by filing a civil suit, his such joining will be accepted by the Governing Body. At the same time the Governing Body will also have the liberty to take any disciplinary action for unauthorized absence of the petitioner but then till such proceedings come to an end 7 the petitioner‟s services will be continued which may enable him to get his monthly salary subject to discharge of his duty. In the event the In-charge Principal, respondent no.5, will in any way try to circumvent the order of this Court by taking any measure for not allowing the petitioner to work it will be open for the petitioner to immediately approach the university which must take remedial steps taking into account its power that has been enjoined under section 59 of the Bihar State Universities Act. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/