IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11176 of 2007 Meena Gupta wife of Dr. Madan Prasad, resident of M.I.G., Kankarbagh, Police Station-Kankarbagh District- Patna presently posted as Assistant Teacher, Narayani Girls High School, Patna City, District-Patna. …… Petitioner Versus 1. The State Of Bihar through the Chief Secretary, Govt. of Bihar, Patna, 2. The Principal Secretary, Secondary Education, Bihar, Patna. 3. The Director, Secondary Education, Bihar Patna. 4. The Internal Financial Advisor-cum-Director, Primary Education, Bihar, Patna. 5. The Regional Deputy Director of Education, Patna Division, Patna 6. The District Education Officer, Patna, Bihar. 7. The Finance Secretary, Bihar, Patna & 8. Smt. Lalli Devi wife of Not known to the petitioner, Headmistress, Narayani Girls High School, Patna City, Patna. …… Respondents ----------- 4/ 27.03.2009 Heard learned counsel for the petitioner and the State. The petitioner originally came to this court with the claims: (A) For payment of arrears of salary since September, 2004 to 1.11.2006. (B) For difference of salary of time bound promotion since 11.2.1998 and (C) Salary for the strike period from 25.2.1999 to 7.5.1999. The petitioner is stated to be an Assistant Teacher in a High School. In so far as the claims of the petitioner under item B and C are concerned, the respondents in their counter affidavit state that the same has been complied with and payment made. That by over-sight the difference of salary for the time bound promotion for one period from 11.2.1998 to 29.2.1998 has remained unpaid due to over-sight for an amount of Rs.24/-. - 2 - The petitioner in her Interlocutory Application No.2342 of 2008 has admitted receipt of the dues for the strike period and has made grievance with regard to one increment only admitted by the respondents for the time bound promotion. The petitioner is, therefore, held entitled to the said increment. In so far as the issue of claim for salary from September, 2004 to 1.11.2006 is concerned, the law is well settled that salary can be stopped for reasons justifiable in law. If it is a case of unauthorized absence or absence without sanctioned leave, there has to be a determination first in accordance with law of the issue of fact only whereafter can any punishment be passed in accordance with law. On facts, it transpires that the petitioner was transferred to Vayapar Mandal Girls High School, Fatuha, on 10.9.2004. Her joining was declined by the Headmistress. The petitioner approached the Minister for Education, who cancelled the transfer order on 4.5.2006. This came to be assailed allegedly at the behest of the Headmistress of the school, in question, by another before this Court in C.W.J.C. No.6699 of 2006 which was dismissed. L.P.A. No.739 of 2006 against the same came to be dismissed. The counter affidavit of the respondents states that the petitioner was granted leave by the In-charge Head Master and not by the Head Master and, therefore, it was not a leave sanctioned in accordance with law. This Court shall have its reservation on the same but declines to arrive at any finding in view of the nature of the order to be passed. What emerges from the pleadings of the parties are disputed - 3 - question of facts. What shall be the effect of the cancellation of transfer order by the Minister, what shall be the effect of the refusal to accept the joining of the petitioner on the post to which she had been transferred, subsequent cancellation of the said transfer, grant of leave by an In- charge Head Master when admittedly the Head Master was not in the office, any other dates that the petitioner may have absented from duty. These are all issues of fact which can not be decided in a writ petition. An order withholding salary actually amounts to punishment as salary is otherwise a statutory right. Therefore, before inflicting the petitioner with this punishment there has to be a proceeding in accordance with law to determine and arrive at a finding with due opportunity to the petitioner and final orders are then required to be passed. This shall be the decision making process with which this court finds a serious infirmity. There is, thus, no justification for the respondents to withhold the salary of the petitioner unless they apply this procedure. The writ petition raising pure administrative issues on facts has been thrust upon the Court, because the respondents insist on acting contrary to law. Let the respondents take a decision on the claim of the petitioner for salary in between September, 2004 to 1.11.2006 in a manner discussed hereinabove within a maximum period of twelve weeks from the date of receipt/ production of a copy of this order. The time period shall apply, provided the petitioner herself co-operates. In the event of non-cooperation by the petitioner, the competent authority may also proceed ex parte, but only after recording his satisfaction with - 4 - reasons of the alleged non-cooperation by the petitioner. Any legitimate dues, if found, payable must be paid within with the aforesaid period. The writ application stands disposed of. JA/- (Navin Sinha, J.)