IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3697 of 2010 1. Chhotey Narain S/O Late Sidhi Sharma R/O Vill.- Saguni, P.S.- Masaurhi, Distt.- Patna Versus 1. The State Of Bihar Through Commissioner Cum-Secretary Water Resources Deptt. Govt. Of Bihar, Patna 2. The Commissioner-Cum-Secretary Water Resources Deptt. Govt. Of Bihar, Patna 3. The Under Secretary Water Resources Deptt. Govt. Of Bihar, Patna 4. The Chief Engineer Water Resources Deptt. Anisabad, Patna 3/ 06/09/2011 Heard learned counsel for the petitioner and the State. It is stated that the petitioner was placed under suspension on 10.1.2002 and ultimately dismissed from service on 28.3.2003 after a departmental proceeding. He was not paid his subsistence allowance during the period of suspension prior to dismissal. The claim has wrongly been rejected by the impugned order dated 1.4.2009. Learned counsel for the State submitted that the right to the subsistence allowance was regulated by Rule-96 of the Bihar Service Code as then applicable (hereinafter referred to as the Code). Since the petitioner did not furnish the necessary certificate under Rule- 96(2) of the Code that he was not engaged in any employment, business, profession or vocation, subsistence allowance was not paid to him. He 2 submitted the same only on 16.5.2005. Rule-96(2) of the Code reads as follows:- “No payment under Sub-Rule-(1) shall be made unless the government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation.” An order of suspension does not result in severance of the master-servant relationship. The employee is only prevented from working to enable a fair and proper proceeding to be held preventing harassment to the delinquent and the Government, facilitating such enquiry. Rule-16(1) of the Bihar Government Servant Conduct Rules, 1976 (hereinafter referred to as the Conduct Rules) reads as follows:- “No government servant shall, except with the previous sanction of the Government, engaged directly or indirectly, in any trade or business or undertake any employment.” If the master-servant relationship subsists during the period of suspension the employee is prohibited from taking up any other employment. If he does so, he violates the Conduct Rules exposing himself to further departmental action. Rule-96(2) of the Code is apparently in conflict with Rule-16 of the Conduct Rules to that extent that it seeks to condone the same. Subsistence allowance is an obligation of the 3 respondents. Any violation of the Conduct Rules will expose the delinquent to further administrative action. The two provisions shall therefore operate in their own respective fields. The position under Rule-10 of the Bihar C.C.A. Rules, 2005 is fundamentally different. Rule- 10(1) „Proviso‟ makes it mandatory to mark attendance at the Headquarters during suspension. Rule-96 of the Code contains no such provision. That the petitioner may have been subjected to departmental proceedings for having conducted a second marriage in violation of the Conduct Rules is wholly irrelevant to the issue of subsistence allowance. Learned counsel for the State next suggests that the issue for payment of subsistence allowance may also be a matter for consideration under Rule-97 of the Code which provides for appropriate orders to be passed at the final stage of the departmental proceeding how the period of suspension has to be treated. It is submitted that the petitioner has not placed any materials on record in that regard. The petitioner was a junior engineer. He was reasonably expected to place all necessary materials on record. But, that does not detract from the responsibility of the respondents to assist the Court in 4 proper dispensation of justice. When a citizen comes to the Court, he may have various reasons to place or not to place any particular information before the Court. He may place materials as per his own understanding and relevance. Misrepresentation or deliberately withholding information shall be exceptions. But, the State is not an adversarial litigant vis-à-vis the citizen. The State stands before this Court as a tool in the discharge of the sovereign function for dispensation of justice. The State is the custodian of the service records of the citizen. It is the duty of the functionaries of the State to place full and proper facts before the Court as a part of fairness and reasonableness as held in the case of National Insurance Co. Ltd. v. Jugal Kishore, (1988) 1 SCC 626 in the relevant extract at paragraph-10 as follows: “10. ….This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly”.…. The State cannot adopt the attitude of an adversarial litigant and take the stand that despite all information available in the service records it is not 5 obliged to place it before the Court to the extent relevant.” The counter affidavit is also silent on this aspect that what final orders have been passed at the stage of punishment with regard to the manner in which the period of suspension has been directed to be treated. The obligation on the part of the State or its instrumentalities to act fairly can never be over- emphasized. The petitioner has failed to assist the Court fully, the State has done no better. Let the Commissioner-cum-Secretary, Water Resources Department, examine the grievances of the petitioner in light of the present discussion and pass an appropriate speaking order within a maximum period of four weeks from the date of receipt/production of a copy of this order. Needless to state that if he finds justification in the claim or in any part of the claim under the present discussion, necessary consequential orders shall be issued simultaneously, without awaiting the petitioner to file another writ application for the same. The writ application is allowed. KC ( Navin Sinha, J.)