IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8466 of 2009 Madhusudan Pandey, Son of Late Rameshwar Prasad Pandey, resident of Village-Kashinath Colony, Katari Hill Road Gaya, P.S.-Civil Line, District- Gaya. -Petitioner. VERSUS 1. The Bihar State Electricity Board through its Secretary, Vidyut Bhawan, Bailey Road, Patna. 2. The Chairman, Bihar State Electricity Board through its Secretary, Vidyut Bhawan, Bailey Road, Patna. 3. The Secretary, Bihar State Electricity Board through its Secretary, Vidyut Bhawan, Bailey Road, Patna. 4. The Joint Secretary, Bihar State Electricity Board through its Secretary, Vidyut Bhawan, Bailey Road, Patna. 5. The Deputy Director, (Accounts) at the headquarter of the Bihar State Electricity Board through its Secretary, Bailey Road, Patna. 6. The Deputy Director, (Accounts), Magadh Electricity Supply Area, Gaya. ----------- 03 17.09.2009 The petitioner is a clerk under employment of the Bihar State Electricity Board. He has filed the present writ petition against the order passed by respondent no.5, the Deputy Director Accounts at the Headquarters of the Board at Patna dated 04.06.2009. By which respondent no.5 has ordered for the recovery of subsistence allowances, which was paid to the petitioner between the periods 16.08.1999 to 09.08.2004. For certain derelictions petitioner was compulsorily retired on 16.08.1999. This Court set aside the order in C.W.J.C. No.1716 of 2000, which was allowed on 24.07.2003. On reconsideration the Board on 09.08.2004 discharged the petitioner. This order is Annexure-3 to the writ petition. Apart from discharge the order states that for the period 16.08.1999 to 09.08.2004 (the date of discharge), petitioner would be deemed to be under suspension. Pursuant to the aforesaid, petitioner was paid the subsistence allowances for the period 16.08.1999 to 09.08.2004. Petitioner then challenged the punishment of discharge - 2 - before this Court in C.W.J.C. No.756 of 2005 by order dated 05.10.2007 the writ petition was allowed and the punishment of discharge was set aside and the Board once again directed to reconsider the matter. This time by order dated 01.08.2008 the Board revised the punishments earlier awarded and now awarded punishment of reversion only. This is Annexure-6 to the writ petition. While doing so, it was observed that the period from 16.08.1999 till 01.08.2008 would be treated on basis of no work no pay. It appears pursuant to the aforesaid and interpreting the same by the impugned order of respondent no.5 dated 04.06.2009, as contained in Annexure-9, the petitioner having been paid subsistence allowances for the period 16.08.1999 to 09.08.2004, the same is being sought to be recovered, on the ground that the said period is to be treated as no work no pay period. Hence, even subsistence allowance could not have been paid and having been paid is recovered. Petitioner questions the validity of such an interpretation and submits that the said interpretation is perverse and unsustainable. On the other hand, on behalf of Board, it is submitted that as the revised order of punishment provided that the period be treated as no work no pay petitioner would not entitle to any payment and that order not being challenged. The demand for refund of subsistence allowances cannot be entertained. To that effect, is the counter affidavit as well. Having heard the parties and with their consent the writ petition is being disposed of at the stage of admission itself. In my view, the issue is very short. Once the Board decided - 3 - to treat the period between 16.08.1999 to 09.08.2004 as the period where petitioner would be deemed to be under suspension, it automatically flows that petitioner was entitled to subsistence allowances. Here, one must consider what subsistence allowance is and how it is different from pay/salary. Salary or pay is a consideration paid in lieu of services rendered by an employee to an employer, pending disciplinary proceeding, an employee is suspended. This does not bring about a break in the relationship of employer and employee nor does it terminate the contract of employment. It merely permits the employer not to take work from the employee but the employee cannot be left to starve while the contract of employment continues to operate. Therefore, as a consideration for the contract to subsist and to employee to subsist (live) an allowance is statutorily required to be paid that is not dependent on the principle of work and pay. It is independent thereof. Thus, for the deemed period of suspension the principle of no work no pay itself has no application. The subsistence allowance paid is statutory liability which even otherwise cannot be denied, thus having been rightly paid pursuant to the decision of the Board itself, cannot now be permitted to be recovered. Subsistence allowance is not paid and the principle of no work no pay is based on equitable considerations that where an employee does not work. He is not entitled to pay. It normally would not apply to situation where an employee is not permitted to work. The distinction is between not worked and not permitted to work. Thus, found here the petitioner was not permitted to work. - 4 - He was deeded to be under suspension. Having been deemed to be under suspension he was entitled to be paid subsistence allowance. He was rightly paid the subsistence allowance. Having been paid subsistence allowance no recovery can be made on basis of principles of no work no pay. The demand as such by Annexure-9 aforesaid cannot be sustained. Annexure-9 is accordingly quashed. The writ petition is allowed. Trivedi/ (Navaniti Prasad Singh, J.)