IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1727 of 2011 In Civil Writ Jurisdiction Case No. 4262 of 2004 With Interlocutory Application No. 7903 of 2011 And Interlocutory application No. 7904 of 2011 In Letters Patent Appeal No. 1727 of 2011 ====================================================== 1. Director, Soil Conservation, Bihar, Patna 2. The Director, Soil Conservation, Bihar, Patna .... .... Appellant/s Versus 1. Kailash Bihari Mandal, S/o Late Jai Deo Prasad Mandal, R/O Village- Kahalgaon, Choudhary Tola, P.S.-Kahalgaon, District- Bhagalpur. ……….. Petitioner-Respondent 2. Secretary Agriculture (Soil Conservation) Department, Govt. of Bihar, Patna. 3. Additional Secretary, Agriculture (Soil Conservation) Department, Govt. of Bihar, Patna. 4. Joint Secretary, Agriculture (Soil Conservation) Department, Govt. of Bihar, Patna. 5. Deputy Secretary, Agriculture (Confidential) Department, Government of Bihar, Patna 6. Deputy Secretary, Agriculture (Vigilance), Govt. of Bihar, Patna 7. Assistant Secretary, Finance Department, Government of Bihar, Patna 8. District Soil Conservation Officer, Munger. 9. The State of Bihar through the Secretary, Agriculture, Govt. of Bihar, Patna .... .... Respondents-Respondents ====================================================== Appearance : For the Appellant/s : Mr. Kaushal Kumar Jha, Mr. Amish Kumar, Advocates. For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER Patna High Court LPA No.1727 of 2011 (4) dt.14-12-2011 2 / 4 2 (Per: HONOURABLE THE CHIEF JUSTICE) 4 14-12-2011 This Appeal under Clause 10 of the Letters Patent is preferred by the State Government one year forty two days beyond the period of limitation. The appellant State Government has challenged the judgment and order dated 19th July 2010 passed by the learned single Judge in above CWJC No. 4262 of 2004. The respondent-writ petitioner, then a Soil Conservation Officer, was suspended on 29th August 1990 from service pending the departmental proceeding. Pursuant to the direction dated 28th November 1995 issued by this Court in CWJC No. 7247 of 1995 the order of suspension was revoked on 12th April 1996 effective from 28th November 1995 on condition that the period of suspension would be regularized after conclusion of the criminal prosecution and the departmental proceeding pending against the writ petitioner. We are informed at the bar that the criminal prosecution lodged in 1990 is still pending trial. By order dated 21st July 2000, in the departmental proceeding initiated against the petitioner on the charge of lack of integrity, the State Government has imposed punishment of ‘censure’ upon the petitioner and has made the order of recovery of the amount of loss suffered by the State Government. We are informed at the bar that in view of the finding that the State Government had not suffered any loss, no recovery has been made from the writ petitioner. Pending the departmental proceeding, the petitioner, on reaching the age of superannuation, retired from the Government service on 30th November 1996. In view of the minor punishment of ‘censure’ Patna High Court LPA No.1727 of 2011 (4) dt.14-12-2011 3 / 4 3 imposed upon the petitioner, the petitioner filed CWJC No. 4262 of 2004 for recovery of amount of difference in salary for the period of suspension from 29th August 1990 to 28th November 1995. The petition was contested by the State Government. According to the State Government, the petitioner was suspended from service pending the departmental proceeding and criminal prosecution. While revoking the order of suspension a clear stipulation was made that the suspension period would be regularized after the departmental proceeding and the criminal prosecution are over. The criminal prosecution is still pending; the petitioner, therefore, cannot be paid the amount of difference in salary for the period of suspension. The learned single Judge has allowed the petition and has directed the State Government to pay the amount of difference in salary for the period under suspension. Learned Advocate Mr. Kaushal Kumar Jha has appeared for the appellant-State Government. He has vehemently argued that the order of revocation of suspension made on 12th April 1996 was explicit. Unless the criminal prosecution is completed the petitioner cannot be paid amount of difference in salary. He has also relied upon Rule 97 of the Bihar Service Code. We are afraid, we are unable to agree with Mr. Jha. On the charge of misappropriation of Government fund and lack of integrity the petitioner has been visited with punishment of ‘censure’. That proves that the State Government could not prove the charge in the departmental proceeding. As recorded hereinabove, the State Government could not prove the monetary loss also. In the circumstances, the learned single Judge has Patna High Court LPA No.1727 of 2011 (4) dt.14-12-2011 4 / 4 4 rightly allowed the writ petition and has rightly directed the State Government to pay the petitioner the amount of difference in salary for the period under suspension. No case for interference is made out. Besides; in our opinion, the State Government has failed to explain the undue delay of one year and forty two days occurred in filing the Letters Patent Appeal. For the aforesaid reasons, the Appeal and the Interlocutory applications are rejected. Sujit /- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)