IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.147 of 2010 1. AMARENDRA KUMAR S/O LATE RAM PADARATH SINGH R/O VILL-GONAMA, P.S HARNAUT, DISTT- NALANDA, BIHARSHARIF … Petitioner-Appellant Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER AND SECRETARY GOVT. OF BIHAR HOME (POLICE), DEPTT. OLD SECRETARIAT, PATNA 2. THE COMMISSIONER AND SECRETARY HOME (POLICE) DEPTT. BIHAR OLD SECRETARIAT, PATNA 3. THE DIRECTOR GENERAL CUM INSPECTOR GENERAL OF POLICE, BIHAR, PATNA 4. THE INSPECTOR GENERAL OF POLICE BHAGALPUR RANGE, BHAGALPUR 5. THE DEPUTY INSPECTOR GENERAL OF POLICE MUNGER, RANGE- MUNGER … Respondents-Respondents. ----------- 2. 28.1.2010 Heard counsel for the parties. For the reasons mentioned in I.A.No. 740/2010 the delay of 74 days in filing of this appeal is condoned. Having condoned the delay, this Court with the consent of the counsel for the parties has heard the parties also on merits of the appeal. By the impugned order dated 12.8.2009 the restoration application filed by the appellant- writ petitioner, M.J.C.No. 1912/2009, has been rejected by holding that the writ application of the appellant-writ petitioner, C.W.J.C.No. 8847/2006, was disposed of by 2 an order dated 22.5.2007, though in absence of the learned counsel for the writ application was disposed of on merits and as such, the application was not maintainable. We find no error in such approach of the order of the learned Single Judge, inasmuch as it is well settled that even if the counsel for the writ petitioner would not appear, a writ application can be disposed of on merits and in this connection reference may be made to the order of this Court in the case of Kedarnath Tripathi Vs. State of Bihar & Ors., reported in 2008(3) PLJR 470. . We, however, have also heard the counsel for the petitioner on the merits of the writ application and are satisfied that there is no error even in the order that was passed on 22.5.2007 in C.W.J.C. No. 8847/2006. It has to be noted that C.W.J.C. No. 8847/2006 was filed by the appellant- writ petitioner only for a limited relief seeking direction of this Court for payment of salary for the period 16.10.2001 to 18.1.2003 on the ground that in the aforementioned period the appellant- writ petitioner could not work on account of an order of punishment in form of compulsory retirement of his service which was subsequently 3 modified by the appellate authority. From the perusal of the writ application it is clear that the appellant- writ petitioner while holding the post of Sub Inspector of Police had remained absent from duty from 1.3.2000 and as such, after conducting a departmental proceeding the appellant- writ petitioner in view of enquiry report dated 27.11.2000 had been subjected to punishment of compulsory retirement by an order dated 16.10.2001. Against the aforementioned order he had filed an appeal and the same was disposed of by an order dated 18.1.2003 whereby and whereunder the appellate authority, the Regional Inspector General of Police, Bhagalpur by taking a lenient view had modified the order of punishment of compulsory retirement by substituting it with stoppage of increment for three years and reinstatement in service. In the appellate order it was, however, made clear that for the period the appellant- writ petitioner had remained absent from duty and/or out of service, he will not be entitled for payment of any salary and the said order would be treated to be extra ordinary leave. In terms of the said order dated 18.1.2003 the Superintendent of Police, Begusarai had 4 reinstated the appellant- writ petitioner in service as would be evident from Annexure ‘D’ to the counter affidavit filed in the writ application and from the reading of the writ application it is also clear that he had rejoined his duty after 18.1.2003 and having remained silent for more than 3½ years he had filed the writ application, C.W.J.C.No. 8847/2006, dated 25.7.2006 without assailing the appellate order of the Regional I.G. The non-payment of salary, therefore, was part of the order of punishment and the only plea of the appellant- writ petitioner that since he was reinstated in service after modifying the order of punishment of compulsory retirement he had also become entitled for payment of salary would in effect amount to indirectly questioning his appellate order. The payment of salary to a delinquent subjected in a departmental proceeding is not as a matter of course but depends on the ultimate result of the enquiry. It is only in case of complete exoneration from the charge that the delinquent can claim payment of salary for the period he had remained out of service. In the present case there is no dispute that the appellant- 5 writ petitioner first had absconded from the service and later on on the plea of his becoming ill he did not rejoin his duty till the conclusion of the departmental proceeding and therefore, he was subjected to punishment of compulsory retirement by the disciplinary authority. It, as noted above, was modified by substituting it by way of stoppage of three increment in place of compulsory retirement and a clear direction that he will not be entitled for payment of any salary for the period he had remained absent from service or remained out of service on account of the order of compulsory retirement. Such order of the authority which was assailed by the appellant- writ petitioner having become final the appellant- writ petitioner could not have claimed payment of salary by filing a belated writ petition after 3½ years of the order of punishment. This Court, therefore, while up-holding the view of the learned Single Judge in the order dated 22.5.2007 in C.W.J.C.No. 8847/2006 would hold that the same was in conformity with the provisions of Rule 97 of the Bihar Service Code which reads as follows: 6 “97. (1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order- (a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned is sub- rule (1), is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed, removed or suspended as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe: Provided that the payment of allowance under clause (2) or Clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated 7 as a period spent on duty for all purposes. (5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant. In fact from the bare perusal of Rule 97 (2) it becomes abundantly clear that the full payment of salary and allowance can only be claimed by a delinquent employee upon reinstatement if he had been fully exonerated in the departmental proceeding. Sub-Rule (3) of Rule 97 read with Sub-Rule (5) thereof leaves nothing for speculation that in other cases where the delinquent has not been fully exonerated while being reinstated in service he will not be entitled for full payment of salary and the period of absence on duty will be accounted for in the manner the competent authority has passed the order. This aspect of the matter stands settled by the judgment of this Court in the case of Ram Lakhan 8 Kunwar vs. the State of Bihar & ors., reported in 1991(2) PLJR 166, and in the case of Ram Punit Kumar vs. the State of Bihar & ors., reported in 2001(2) PLJR 600. In the light of the aforementioned discussions, this Court would find that no error was committed by the learned Single Judge in dismissing the writ application in C.W.J.C.No. 8847/2006 by an order dated 22.5.2007 and even the restoration application filed by the petitioner was wholly misconceived. That being so, this appeal being devoid of any merit is hereby dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/