IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1845 of 2007 Bachchoo Singh, son of late Dewaki Singh, resident of village Arian, P.S. Hisua, District Nawadah cum Assistant Teacher, Middle School, Kalaunda Chater, Akbarpur Circle (Nawadah) … Petitioner Versus 1. The State Of Bihar 2. District Superintendent Educational Officer, Nawadah 3. Educational Area Officer/ S.D.E.O., Nawadah 4. Principal Teacher, Middle School, Kalaunda, Chatar Circle (Nawadah) … Respondents ----------- 2. 29.7.2011 Having heard counsel for the parties and taking into account that the petitioner is still facing prosecution in two criminal cases, out of which he has already been convicted in one of them by the trial Court, this Court would find it difficult to allow the prayer of the petitioner for payment of subsistence allowance/ salary as claimed by him in this writ application. As a matter of fact this aspect of the matter was already settled in the earlier order of this Court dated 14.2.2006 in the earlier writ application of this petitioner in C.W.J.C.No. 15276/2005, wherein this Court had held as follows: “In the present writ petition, the petitioner is seeking payment of full salaries during the period he 2 remained suspended i.e. during the period he was detained. Rule 99 of the said Code provides that adjustment of the allowances of the petitioner shall be made according to the circumstances of the case and the full allowances would be paid in the event the petitioner is acquitted of the blame. In such circumstances, inasmuch as the petitioner has not yet been acquitted, the time to consider his entitlement to all allowances has not yet arrived. Further more, for no fault on the part of the State the petitioner had been arrested and detained. Admittedly the State had no role to play in the matter, but by reason of arrest and detention of the petitioner, the State lost the services of the petitioner during the period the petitioner remained in jail custody and accordingly, it is doubtful whether the petitioner is entitled to any salary for that period except the subsistence allowance as has been pronounced by the Hon’ble Supreme Court in the very recent past.” Moreover it is an admitted position that the petitioner facing the criminal prosecution had remained in custody from 3 21.4.2003 to 5.6.2003 as also in the second case both at the trial stage and the appellate stage and revisional stage, this Court would find it difficult to direct the respondents to bear the consequences of burden of the petitioner’s payment of salary, especially when it has been found that the criminal cases against the petitioner were never filed by the State, rather arise out of the private civil dispute. Consequently this Court would direct the authorities to only examine as to by what period the petitioner was in custody in connection with both the cases and having found it the authority will deprive the petitioner from payment of salary/ subsistence allowance of the period in which the petitioner was in jail custody. If any amount has been paid to the petitioner for the aforesaid period either by way of salary or subsistence allowance, that would be recovered from him and/or adjusted from the subsistence allowance for the period of suspension 21.4.2003 to 31.7.2004 in the first case and again from the date of his 4 going to jail custody in connection with the second case till June, 2006, inasmuch as the petitioner has claimed that his suspension was revoked and he was allowed to join in the month of June, 2006 pursuant to the order of this Court dated 14.2.2006 in C.W.J.C.No. 15276/2005. It is also made clear that if the petitioner’s services were not terminated and he was allowed to retire from the service as is claimed by him by filing a supplementary affidavit today, the petitioner will be entitled for payment of salary after his suspension was specifically revoked by the authority and at least for the period he had actually continued to work before reaching the date of his superannuation from service. It goes without saying that as the two criminal case one at the appellate stage and the other in trial court are still pending against the petitioner, he will not be entitled for any other amount even by way of retirement benefit, if his services were already dispensed with by way of removal from service on the ground of his being a 5 convicted employee. In such case he may be entitled for payment of 90% of provisional pension in terms of the circular of the State Government dated 31.7.2000 laying down that during the pendency of a criminal case/ departmental proceeding the Government servant will be only entitled for payment of provisional pension and no other amount. The rest of payment on the head of retirement benefit to the petitioner would remain squarely dependent on the outcome of the two criminal cases pending against him and therefore, once he is acquitted/convicted in the other pending criminal case it will be the duty and responsibility of the petitioner to produce the judgment of both the criminal cases so that the authorities could finally decide any further entitlement of the petitioner and/or even withholding pension either in full or part thereof in case of his conviction in either of the two pending criminal cases. At the same time it is also made clear that the Respondents will also be at liberty to decide the final amount of pension in terms of Rule 43(a) of Bihar Pension Rules by taking into account 6 of the conviction and sentence of the petitioner in one of the two of the criminal cases already decided against him without waiting for the result of its appeal/revision and also without prejudice to the result of another criminal case pending in trial court. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/