IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5340 of 2005 KANTI KUMAR SINGH, retired Accountant, son of late Bir Shamsher, at present resident of Mohalla Shekhpur Akhara Ghat, P.O. Ramana, P.S.Ahiyapur, Town and Dist. Muzaffarpur …Petitioner. Versus 1.BIHAR STATE ELECTRICITY BOARD through its Chairman, Bidyut Bhawan, Bailey Road, Patna. 2.The Chairman, Bihar State Electricity Board, Patna. 3.The Secretary B.S.E.B,Patna. 4.The Joint Secretary, B.S.E.B, Patna. 5.The Diredctor of Accounts (Audit), B.S.E.B.,Patna. 6.The Financial Controller (II) , B.S.E.B, Patna. 7.The Deputy Director (Personnel), B.S.E.B, Patna. 8.The Deputy Director of Accounts, H.Q, B.S.E.B., Patna. 9.The Deputy Director of Accounts (Secretariat) B.S.E.B, Patna. 10.The Accounts Officer, Audit, Bihar State Electricity Board, Patna. 11.The General Manager-cum-chief Engineer, Tirhut Area Electricity Board, Muzaffarpur. 12.The Electrical Superintending Engineer, Electrical, Supply Circle, Muzaffarpur. 13The Deputy Director (Personnel,) Tirhut Area Electricity Board, Muzaffarpur. 14.The Electrical Executive Engineer, Electric Supply Division, Sitamarhi …..Respondents. ----------- 9 15.2.2010 I.A. NO. 4022 of 2009 The original writ petitioner has died during the pendency of the proceeding giving rise to the interlocutory application for substitution of the writ petitioner by his widow namely Geeta Devi whose details are mentioned in paragraph 1 of the interlocutory application. The interlocutory application is allowed. Let the name of the original petitioner be expunged from the record of the proceeding and be substituted to his widow Geeta Devi. Heard Mr. Satish Chandra Mishra for the petitioner and Mr. Vinay Kirti Singh learned counsel representing the Board. The only issue raised is, whether the petitioner would be entitled to notional benefits of increments during the period of suspension. It so appears that consequent upon retirement of the petitioner - 2 - on 31.12.2003 from the post of Accountant, the Electricity Board in the process of sanction of his post retrial benefits came to a conclusion that the petitioner had been notionally granted increments during his suspension period and thus the excess amount drawn by the petitioner by reason of the said increments was to be recovered from his post retrial benefits and which has since been recovered under the order dated 5.4.2006 placed at Annexure- 13 of the supplementary affidavit where under a sum of Rs.74,944.80/- was recovered from the gratuity amount. The facts giving rise to the impugned order is that the petitioner was charged with causing a loss of Rs. 15,000/- which was being carried by the petitioner after withdrawal of the same from the bank and was lost by him. The petitioner was initially suspended on 11.12.1982. The suspension was subsequently revoked and under order no. 265 dated 8.6. 1984 respondents proposed to impose a punishment of stoppages of two increments with non- cumulative effect and the period of suspension i.e. from 11.12.1982 to 8.6.1984 was to be decided on the basis of ultimate decision taken by the Board. In response of the show cause notice the petitioner explained the situation and after consideration of the entire material and the explanation advanced on behalf of the petitioner the Secretary of the Board vide order dated 12.8.1988 (annexure-3) was pleased to pass the following orders of punishment namely : (a)25% of the lost amount i.e. Rs. 3750/- be recovered from Shri K.K. Singh, Accountant Assistant. (b) The rest amount i.e. Rs. 11,250/- only is written off. (c) No payment other than subsistence allowance already paid to Shri K.K. Singh, Accountants Assistant for the period of suspension from - 3 - 11.12.1982 to 8.6.1984, will be paid to him. The said order was followed by another order dated 3.12.1988 (annexure-4) whereby the period under suspension was treated as duty period for all practical purpose except for the purpose of pay . It was further stated that the petitioner was not to be paid any pay for the period of suspension except the subsistence allowances meaning thereby that the pay and allowances of the petitioner was restricted to the subsistence allowance drawn by him during said period. The only issue which requires consideration is whether the admissible pay and allowance of the petitioner for the period under suspension having been reduced to the subsistence grant , had effect of forfeiture of even notional increment admissible to him during the said period. In my opinion that would not be a correct position in law for the reason that undoubtedly the pay and allowances are restricted to the level of the subsistence grant during the period of suspension but the notional benefit of the increments would still be admissible to the employee concerned unless it is so reflected in the order revoking suspension and restricting the pay and allowances to the level of subsistence allowance drawn during the period. In fact the moment the salary is restored to a suspended employee it is to be done after giving the notional benefits of the increments accrued to him during the period under suspension. The benefit of increment was never withdrawn from the petitioner nor was one of the penalties imposed. The respondent thus proceeded under a misconception that the reduction of pay and allowances to the subsistence grant had the effect of forfeiture of even the notional benefits - 4 - of increment admissible to the petitioner during the said period. The said impression of the respondent was completely misconceived and contrary to the legal position. There was no infirmity in the grant of notional benefits of the increment to the petitioner during the period of suspension and which had to be taken into account at the stage of restoration of his salary after revocation of the suspension. In that view of the matter there is no infirmity in the increment earned by the petitioner since after conclusion of the suspension period and the recovery process had no lawful support. Apart from the said fact the respondent could not have proceeded to reopen a situation that stood concluded over decades back and if they did not chose to do so while the petitioner was in service they cannot be permitted after his retirement. It is also not the case of the Board that the petitioner had committed any fraud in earning of increment. The only reason assigned for affecting the recovery is that he was not entitled to the increment even notionally during the suspension period. Since I have already held that the opinion of the respondents did not reflect the correct legal position hence the consequence would be that the pay fixation of the petitioner giving him notional benefit during the suspension period contained no infirmity and for the reasons aforesaid the writ petition is allowed. The recovery is set aside. The respondents are directed to refund the amount of Rs. 74,944.80 to the substituted petitioner within the period of three months from the date of production of a copy of this order. (Jyoti Saran, J) M.Rahman