IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11693 of 2003 BHAGIRATH MAHTO S/O Sri Jagdish Mahto resident of Village Rupdih, P.S. Motihari (Mufasil) District East Champaran. Versus 1.THE STATE OF BIHAR 2.The Commissioner, Tirhut Division, Muzaffarpur. 3.The District Magistrate, East Champaran, Motihari. 4.The Sub.Divisional Magistrate, Motihari, ----------- 4 18/1/2010 Heard counsel for the petitioner. Prayer of the petitioner in this writ application reads as follows:- “That this writ petition is being filed for issuance of a writ in the nature of mandamus for commanding and directing the respondents to treat the suspension period of the petitioner as duty because his suspension has been revoked after being awarded minor penalty of caution only and further directing the respondents to pay full salary for the period of suspension i.e, 16.12.98 to 10.8.99.” Counsel for the petitioner would submit that once the petitioner was not found guilty in the departmental proceeding for the charges framed against him on 21.12.1998 and if the Enquiry Officer had not found him guilty, the authority by way of recording „warning‟ while dropping the departmental proceeding by order dated 10.8.1999 could not have deprived the petitioner from payment of salary and in this context 2 counsel relies on the provisions of Rule 97 of the Bihar Service Code. In this case neither counsel for the State has appeared nor any counter affidavit has been filed despite indulgence given by order dated 12.12.2003. Therefore, there being no denial of the facts mentioned in the writ application, this Court must hold that the order dated 10.8.1999 depriving the petitioner from payment of salary for the period of suspension in absence of any reason, cannot be sustained. The respondent, Collector of the East Champaran district ought to have taken into account that the Enquiry Officer had not found the petitioner guilty for any of the charges and his findings if not agreed by the disciplinary authority, the petitioner was required to be given a show cause notice before being inflicted any punishment by way of difference of opinion with the Enquiry Officer. That having been not done, the order of the Collector dated 10.8.1999 as contained in Annexure-4 to this writ petition recording only warning against the petitioner cannot be treated to be one which would be punishment in terms of the Disciplinary, Control and Appeal Rules, as was in enforce on 10.8.1999 and the same is hereby quashed. 3 At the same time, this court cannot ignore the petitioner had moved this Court against the order dated 10.8.1999 by filing this writ application on 24.10.2003 without exhausting an alternative remedy of appeal before the Commissioner of the Division, and thus even when this Court would find that the impugned order is unsustainable and the remedy of appeal would not come in the way of the petitioner in pursuing this writ application, the matter will still have to be remitted back to the Collector of the district, who is now directed to proceed afresh from the stage of consideration of the enquiry report. In case Collector of the district would find any necessity of inflicting punishment against the petitioner by differing with the enquiry report, he would issue a show cause notice to the petitioner disclosing his reasons for not accepting the report of the Enquiry Officer. The petitioner thereafter would file his show cause reply and any decision either with regard to punishment including stopping payment of salary for the period of suspension would be passed thereafter by the Collector in the light of the reply given by the petitioner. Such exercise must be completed by the Collector of the district within a period of six months from the date of receipt of a copy of this order failing which the petitioner will be entitled for payment of 4 his salary for the period of suspension which had not been paid to him on account of the impugned order. With the aforementioned observation/direction this application is disposed of. Abhay Kumar (Mihir Kumar Jha, J.)