IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3965 of 2002 Dr. Anshumali Shukla, Son of late Vidya Nath Shukla, Resident of Village Malkauli, P.O. Malkauli, P.S. Bagaha, District West Champaran. -------- Petitioner Versus 1. The State of Bihar. 2. The Commissioner-cum-Secretary, Health, Bihar, Patna. 3. The Director In chief, Health Department, Bihar, Patna. 4. The Under Secretary, Health Department, Bihar, Patna. 5. The Accountant General, Bihar, Patna. -------- Respondents ----------- 4 07.07.2010 Heard Mr. Shivajee Pandey, learned senior counsel for the petitioner and counsel for the State as also counsel for the Accountant General. The prayer of the petitioner in this writ application reads as below:- “1(i) To issue rule in nature of cerciorari to quash the Notification vide office order no. 99(3) dated 15.2.2000 issued under the signature of Sri K.M. Prasad Additional Secretary, Bihar, Patna whereby and whereunder the period with effect from 16.12.96 to 6.11.98 has been declared as leave without pay. (ii) To issue rule of Mandamus commanding the respondents to pay the salary of the period with effect from 16.12.96 to 6.11.98 and treat it to be in service during which the petitioner was directed to join in Head Office of Health Department in 2 Secretariate by the order of the Government.” Mr. Pandey, while pressing for the aforementioned two reliefs, would submit that during pendency of this writ application, which was filed on 19.3.2002, an order was passed by the Joint Secretary, Health and Family Welfare Department, whereby and whereunder, the aforesaid period of 16.12.1996 to 6.11.1998 was regularized as a period under suspension and for that period, the petitioner was held to be entitled for payment of subsistence allowance only. Mr. Pandey would submit that this revised order dated 24.1.2003 is also bad because the petitioner was never punished in the departmental proceeding and the charges framed against him were never proved. He would, therefore, submit that the period of suspension cannot lead to forfeiture of his half salary by way of restricting payment to the petitioner for subsistence allowance only. Since this development has taken place during pendency of this writ application and there is nothing on record to 3 show as to what was the findings in the departmental enquiry by the enquiry officer and/or the resultant order passed dropping the departmental proceeding, it would be difficult for this Court to decide the issue in hand. It is well settled that only when a delinquent is completely exonerated from the charges that he will become entitle for payment of full salary under the period of suspension. In the present case, this aspect of the matter has to be decided by someone and since Mr. Pandey would submit that before passing of the order dated 24.1.2003, the petitioner had been give no notice and/or opportunity of hearing, this Court would find it prudent to remit the matter back to the Principal Secretary of the Health and Family Welfare Department, who, now after considering the materials on record, would pass an appropriate order with regard to the payment of salary of the petitioner for the period of his suspension i.e. 16.12.1996 to 06.11.1998. Since the petitioner has already taken voluntary retirement, it would augur well for the administration to decide the 4 said claim of the petitioner within a period of three months from the date of receipt/production of a copy of this order. If it is found that the petitioner is entitled for payment of salary for the aforesaid period, the authority will also ensure its payment in next one month. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)