IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.861 of 2008. RAM JEE SINGH son of Late Sukhdeo Singh, resident of village-Sikathi, P.O. Udaypur, P.S.Sanjhauli, district-Rohtas at Sasaram.- -- Appellant Versus 1. THE STATE OF BIHAR 2. The Director, Primary Education, Bihar, Patna 3. The District Superintendent of Education, Rohtas at Sasaram 4. The Block Education Extension Officer, Nasirirganj, (North) P.S.Nasirirganj, Distt- Rohtas at Sasaram 5. The Dist4rict Provident Fund Officer, Rothtas at Sasaram 6. The Accountant General Bihar, Patna.— Respondents. With LPA No.838 of 2008. RAM JEE SINGH son of Late Sukhdeo Singh, resident of village-Sikathi, P.O. Udaypur, P.S.Sanjhauli, district-Rohtas at Sasaram.- --Appellant Versus 1 THE STATE OF BIHAR 2. The Commissioner, Patna Division , Patna 3. The Director, Primary Education, Bihar, Patna 4 The Deputy Development Commisisoner-cum- Chairman, District Edu cation Establishment Committee, Rohtas, District-Rohtas at Sasaram 5. The District Superintendent of Education, Rohtas at Sasaram 6. The Block Education Extension Officer, Dehri, Distt-Rohtas at Sasaram 7. The Bock Education Extension Officer, Nasiriganj (North) Rohtas Rohtas at Sasaram 8. Sri Umesh Kumar Singh, Block Education extension Officer, Dehri.-- Respondents. For the appellant : Mr. Uma Shankar singh No.2 For the State : Mr. P.Tekriwal,G.A.I ---- O R D E R 5. 14.9.2009. Heard learned counsel for the parties. Both the appeals arise out of a common 2 judgment dated 10.9.2008 passed by the writ court whereby both the writ petitions, C.W.J.C.No.16362 of 2004 and C.W.J.C.No.11903 of 2003 have been dismissed. The first writ petition was filed by the petitioner against the award of punishment of censure and break in service between 7.7.2000 to 2.6.2003, vide order dated 2.6.2003 which appears to have been confirmed by the appellate order dated 31.8.2004. The other writ petition is for payment of retrial benefits from which it appears that the petitioner was retired from service on 30th June, 2003 within 28 days of the order of punishment. The writ court in the order under appeal has mentioned that there is challenge to the appellate order dated 31.8.2004 passed by the Commissioner, Patna Division in Service Appeal No.25/2004. The learned counsel for the State submits that there is no formal order to that effect in the writ petition. But a reading of the whole writ petition discloses that the appellate order was also under challenge. On behalf of the appellant/writ petitioner, it was strenuously argued that the initial order of transfer which the appellant 3 allegedly did not obey, was not properly communicated to him and, therefore, he could not have acted on the basis of that transfer order. Secondly, it was submitted that the order of punishment was passed without making available to the appellant the copy of the inquiry report. Lastly, it was submitted that the punishment of censure is one of the punishment prescribed under the rules of 1994, but the punishment ordering for break in service for the period 7.7.2000 to 2.6.2003 is against the law because no such punishment, major or minor, is prescribed under the rules. It was also submitted that pursuant to observations of this Court in an earlier appeal bearing L.P.A.No.308 of 2003 disposed of on 16.4.2003, the appellant had submitted his joining on 26.4.2003 itself and hence, there was no reason why break in service could have been ordered till 2.6.2003 when the order of punishment was passed. On going through the order passed by the writ court and the uncontroverted facts brought on record by the State through its counter affidavit, we find no substance in the first two points raised on behalf of the appellant/writ petitioner. In fact, the appellant had rushed to challenge the 4 order of transfer through a writ petition bearing C.W.J.C.No.12011 of 2000, but no interference was made by this court, and the writ petition was dismissed on 25.2.2003. The discussions made at page nos. 9 and 10 of the order under appeal discloses that the inquiry report was sent to the petitioner along with the show cause notice by the D.S.E, Rohtas vide memo No.3148 dated 21.9.2002 and such assertions made in the counter affidavit were not replied to. So far as third point relating to punishment by way of break in service is concerned, we find sufficient merit in the submission that said punishment is not contemplated under the relevant rules. During the said period, from 28.11.2000 the appellant was under suspension. For that period the appellant is entitled to claim only subsistence allowance as per law. For the remaining period when he was not under suspension and till his joining on 26.4.2003, prior to superannuation on 30.6.2003 he may not be entitled to any salary. But even on such facts there could not be any justification to award such punishment which will only harm the 5 future pensionary prospects when there is no finding of grave misconduct or that he had committed any financial irregularity and caused any loss to the State. In view of aforesaid discussions, both the appeals are allowed in part and the punishment providing for break in service of the appellant for the period 7.7.2000 to 2.6.2003 is set aside. So far as the non-payment of salary for the aforesaid period is concerned, there is no difficulty in holding that the period during which the appellant chose not to join the transferred post, he would not be entitled for any salary. However, for the period when he remained under suspension, he will be entitled only for subsistence allowance in accordance with law for which directions have been issued along with some observations by the writ court itself. So far as the retiral benefits payable to the appellant are concerned, we direct that the same should be re- calculated if the earlier calculation and sanction is based upon break of service as per the order of punishment which now stands modified. Such revision should be made without any delay preferably within four months from the date of 6 production/communication of a copy of this order. Both the appeals are allowed in part only to the extent indicated above. There shall be no order as to costs. ahk (Shiva Kirti Singh,J.) (Jyoti Saran,J.)