IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5742 of 2009 ====================================================== Shyam Bihari Mishra, Son of Shiva Kumar Pathak, resident of Village – Gauharpur, Post – Navdiha, Via- Khijarsarai, District – Gaya. .... .... Petitioner. Versus 1. The State of Bihar through Principal Secretary, Human Resources Development Department, Bihar, Patna. 2. The Principal Secretary, Human Resources Development Department, Government of Bihar, New Secretariat, Patna. 3. Regional Deputy Director of Education, Patna Division, Patna. 4. District Education Officer, Patna, District – Patna. 5. Area Education Officer, Danapur, District – Patna. 6. Incharge Principal, District Education Training Institute Bikram, District – Patna. 7. Principal, Patna Collegiate School, Patna, District – Patna. .... .... Respondents. ====================================================== Appearance : For the Petitioner/s : Mr. Durga Nand Jha For the Respondent/s : Mr. (Sc22) ====================================================== CORAM: HONOURABLE JUSTICE SMT. MRIDULA MISHRA ORAL ORDER (Per: HONOURABLE JUSTICE SMT. MRIDULA MISHRA) 04/ 20-09-2011 Heard counsel for the petitioner and counsel appearing for the State. Petitioner was working as Peon in Patna Collegiate School, Patna. He superannuated on 28.2.2009 from that post. Petitioner is aggrieved, his salary for the period 4.4.1990 to 30.11.1998 has not been paid. This was the period during which the petitioner was put under suspension on account of pendency of a criminal case against the petitioner. Till date the petitioner has retired, no departmental proceeding was initiated against him. In Patna High Court CWJC No.5742 of 2009 (4) dt.20-09-2011 2 / 4 2 criminal case petitioner was convicted and Crl. Appeal No. 1138 of 1997 is still pending before F.T.C. No. V, Patna. Counsel for the petitioner submits that petitioner would have been entitled for his salary for the period of suspension, if while revoking the suspension order any finding would have been recorded regarding non-payment of salary for the period of suspension except subsistence allowance. Such order could not have been passed considering the fact that no departmental proceeding was initiated against the petitioner in which such punishment would have been awarded to the petitioner. Petitioner’s pension and pensionary benefits have been allowed by the concerned authorities after his superannuation. The period in between 4.4.1990 to 30.11.1998 has not been treated as break in service. Entire service period of the petitioner has been counted for his pensionary benefits. Since, the respondents are of the view that petitioner’s entire service career is countable for fixation of pension and pensionary benefits, there is no reason for withholding his salary for the period of suspension. Counter affidavit on behalf of Regional Deputy Director of Education, Patna Division, Patna, Respondent No. 3 is completely silent on the point relating to payment of salary for the period of suspension. In the counter affidavit filed on behalf of Patna High Court CWJC No.5742 of 2009 (4) dt.20-09-2011 3 / 4 3 Principal, Patna Collegiate School, Patna, Respondent No. 7 it has been stated that since the petitioner was convicted in criminal case the period of suspension in between 4.4.1990 to 30.11.1998 has not been counted for the purpose of pensionary benefits. This statement is completely demolished considering the pension fixation order of the petitioner, annexed as Annexure-9 by the petitioner with his reply to the counter affidavit. There is no break in service pointed out in his pension fixation order. Respondent No. 3 in his counter affidavit has stated that the departmental proceeding has been converted under Rule 43(b) of the Bihar Pension Rules vide Memo No. 1440 dated 10.9.2011. This statement is completely wrong, considering the fact that at no point of time any departmental proceeding had been initiated against the petitioner, which could have been converted into a proceeding under Rule 43(b) of Bihar Pension Rules. Petitioner superannuated from his service in 2009. The alleged incident of defalcation of govt. money had taken place in the year 1990. After more than 21 years of such incident, the respondents could not have initiated any departmental proceeding under the Bihar Pension Rules. In case any such departmental proceeding has been initiated by the respondents, that cannot have any effect on payment of arrears of salary to the petitioner for the Patna High Court CWJC No.5742 of 2009 (4) dt.20-09-2011 4 / 4 4 period, he was under suspension. This application is allowed, directing the respondents for making payment of arrears of salary to the petitioner for the period 4.4.1990 to 30.11.1998 with all consequential benefits. Payment must be made within twelve weeks from the date of production/communication of the order. DKS/ (Mridula Mishra, J)