IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15790 of 2004 DR.AJIT KUMAR SINHA S/O LATE RAMDHANI SINGH, R/O BEHIND HOTEL SIDDHARTHA INN, EAST BORING CANAL ROAD, P.S. BUDHA COLONY, TOWN & DISTRICT PATNA. ………..Petitioner Versus 1. THE STATE OF BIHAR THROUGH ITS SECRETARY. 2. SECRETARY, DEPARTMENT OF HOME, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR GENERAL OF POLICE, GOVERNMENT OF BIHAR, PATNA. 4. INSPECTOR GENERAL OF POLICE, SPECIAL BRANCH, BIHAR, PATNA. 5. DEPUTY INSPECTOR GENERAL OF POLICE, SPECIAL BRANCH, BIHAR, PATNA. 6. SUPERINTENDENT OF POLICE (G) SPECIAL BRANCH, BIHAR, PATNA. 7. DEPUTY SUPERINTENDENT OF POLICE, SPECIAL BRANCH, BIHAR, PATNA. 8. SHRI SUNIT KUMAR, THE THEN DEPUTY INSPECTOR GENERAL OF POLICE, SPECIAL BRANCH, BIHAR, PATNA. ………………….Respondents For Petitioner : Mr. Anil Kr. Tiwary Adv. Mr. Binod Kr. Mishra, Adv. For Respondent State : Mr. Satish Kr. Sinha, A.C. to S.C. 1 ----------- 11 09.02.2011 Heard learned counsel for the petitioner and the State. 2. Initially the writ application had been filed by the petitioner, challenging the initiation of the departmental proceeding. However, during the pendency of the writ application, the departmental proceeding continued and petitioner confined his prayer only with respect to the payment of subsistence allowance and salary for the period of 2 suspension for the period 29.03.2003 to 29.10.2003. The respondents were directed to file counter affidavit. So far the amended prayer of the petitioner is concerned. A supplementary counter affidavit has been filed on behalf of Superintendent of Police, Patna alongwith which the final order passed by the Superintendent of Police, Special Branch, Patna has been annexed as Annexure-A. From the order, issued by the Special Branch contained in order No. 778 of 2007 dated 4th October, 2007 it transpires that earlier for the period of suspension, subsistence allowance had not been paid to the petitioner, considering his absence from Headquarters, during the period of suspension but it has finally been paid to him and the period of suspension has been considered as an extra-ordinary leave. 3. Mr. Anil Kumar Tiwary, counsel for the petitioner submits that the respondents have committed serious illegality by treating the period of suspension as an extra-ordinary leave and deciding not to make any payment of salary to the petitioner, as such, the order is completely in violation of Rule 97 as well Rule 236 of the Bihar Service Code. Rule 236 deals with extra-ordinary leave to be granted to a Government Servant in special circumstances. Rule 236 3 (i) speaks that when no other leave is admissible under these rules, then only the period of absence can be considered as an extra-ordinary leave. Rule 236 (ii) provides that other leave being admissible, if the Government Servant concerned applies in writing for the grant of extra-ordinary leave, then only the period of absence can be considered as extra- ordinary leave. 4. So far the petitioner’s case is concerned, he had other leave admissible to him in his account and he had not applied for considering his period of absence as an extra- ordinary leave. Since both the circumstances were not available for treating his period of absence as an extra- ordinary leave, the order passed by the respondents is completely in violation of Rule 236 of Bihar Service Code and, as such, illegal. Further it has been submitted by the counsel for the petitioner that in case, the respondents authorities had decided to award a punishment of non- payment of salary for the period of suspension, it was necessary for them to issue a show cause notice to him, as provided under Rule 97 of the Bihar Service Code. Rule 97 of the Bihar Service Code is very specific that when a Government Servant, who has either been dismissed, 4 removed or suspended is reinstated by the authority competent to pass such an order of reinstatement, if have decided to make non-payment of salary for the period of suspension or for the period of absence from duty in that case, a show cause notice is required to be given to him, if such punishment is going to be imposed against him. Admittedly, in the case of the petitioner, it was not done, no show cause notice was issued to him in consonance with Rule 97 of the Bihar Service Code. On these grounds, the imposition of punishment by the respondents regarding non-payment of salary to him for the period of suspension is completely illegal and required to be quashed. 5. Learned counsel appearing for the State, is unable to contradict the stand taken by the petitioner for the obvious reason, as the period of absence of the petitioner has been treated as an extra-ordinary leave, despite the fact that other leaves were admissible available in his account. There is nothing to show that petitioner had requested for treating his period of absence as an extra-ordinary leave. It is also not in dispute that no notice was issued to the petitioner before imposing this punishment that he will not get anything except his subsistence allowance, for the period of suspension. 5 6. Considering all these facts, the order passed by the respondent authorities as contained in Annexure-A to the supplementary counter affidavit passed by Superintendent of Police (B), Special Branch, Bihar, Patna contained in Special Branch order No. 778 of 2007 is quashed, so far it relates to treating the period of 214 days of petitioner’s absence as extra-ordinary leave and deciding not to make payment of any salary to the petitioner for the period of absence. The respondents are directed to reconsider it in terms of Rule 236 of the Bihar Service Code as well as the Rule 97 of the Bihar Service Code. The order must be passed by the respondents within six weeks from the date of production/communication of this order. This application stands disposed of. Safik (Mridula Mishra, J.)