IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12953 of 2006 MANOJ KUMAR son of late Shatrudhan Prasad Srivastava, resident of Mohalla- Chaprasi Tola, Near Jhulan Mandir, Primary School Khagra, P. S. Kishanganj, District- Kishanganj. ….Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary, Department of Health and Family Welfare, Government of Bihar, Patna. 2. The Director-in-Chief, Health Services, Bihar, Patna. 3. The District Magistrate-cum- Collector, Kishanganj. 4. The Treasury Officer, Kishanganj. 5. The Civil Surgeon-cum- Chief Medical Officer, Kishanganj. 6. The Regional Deputy Director, Heath & Services, Purnea Division, Purnia. … Respondents. ----------- 2. 20.08.2010 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ petition reads as follows:- “(1) that the petitioner has filed the present application for issuance of an appropriate writ/writs, order/orders, direction specially writ in the nature of mandamus for a direction to the respondent authorities to release the salary of the petitioner of the period during which he has restrained from discharging his duty with effect from 3rd November, 2003 to Ist of February, 2006 forthwith as contained in Annexure- and for the other relief/reliefs to which the petitioner is entitled to in accordance with law.” Mr. Banwari Sharma, learned counsel for the petitioner with reference to the aforementioned relief 2 would submit that all said and done the order of the Director-in-Chief of the Health Services dated 28th January 2006 itself could be a proof of the fact that the Civil Surgeon of Kishanganj district had arbitrarily and illegally restrained the petitioner from working on the post of clerk on which the petitioner was appointed in the year 1982. In this context, he would submit that the Civil Surgeon of Kishanganj District by an executive fiat had restrained the working and payment of salary of the petitioner from 3rd November 2003 on the ground that he was holding an enquiry in the alleged illegality made in the appointment of the petitioner and such order of restrain had continued till 31st January 2006 before it got clarified form the aforementioned letter of the Director- in-Chief dated 28th January 2006 that the petitioner’s case relating to appointment of the year 1982 was not to be placed under zone of enquiry and as such the petitioner would be entitled for payment of his full salary for the period 3rd November 2003 to 1st of January 2006. Counsel for the State would however submit that since there was an enquiry undertaken against the 3 petitioner, the Civil Surgeon was justified in stopping his working and payment of salary and thus when the petitioner has also not worked in the period of enquiry i.e. 3.11.2003 to 1.2.2006, he would not be entitled for payment of salary. In the opinion of this Court, the submission of learned counsel for the State must be rejected inasmuch as the Director-in-Chief in his order dated 28.1.2006 had himself held that the stoppage of working of the petitioner was wholly unwarranted in the following terms; Þi=kad 4@fofo/k&644@05&134 ¼4½ funs'kky;] LokLF; lsok,¡] fcgkj iVuk A isz"kd] Mk0 ¼ds-½ ';ke ukjk;.k flag] funs'kd izeq[k] LokLF; lsok,¡ A lsok esa] flfoy ltZu] fd'kuxat A iVuk] fnukad 28 tuojh] 2006 fo"k; %& Jh eukst dqekj] dk;Zoafpr fyfid dks iqu% lsok esa ysus ds lEcU/k esa A egk'k;] mi;qZDr fo"k;d vius i=kad 1208 fnukad 15-9-2005 dk funs'k djsa A ;g izfrosfnr fd;k x;k gS fd Jh eukst dqekj] dh fu;qfDr o"kZ 1980 esa rRdkyhu flfoy ltZu] iqf.kZ;k¡ ds Kkikad 1579 fnukad 28-5-1980 ds }kjk dh x;h gS A i= esa ;g Hkh dgk x;k gS fd ftu 145 O;fDr;ksa dh fu;qfDr o"kZ 1982 4 esa gqbZ gS mudh lsok lekIr dh x;h gS blds vykok 1982 ds igys fu;qDr fdlh vU; deZpkjh dh lsok lekIr ugha dh xbZ gS A vr,o budh fu;qfDr QthZ ugha gS ,oa 145 lsok lekIr O;fDr;ksa esa ls ugha gS A mi;qZDr fLFkfr esa tcfd Jh dqekj dh fu;qfDr dks voS/k@vfu;fer@QthZ ?kksf"kr ugha fd;k x;k gS] rc rd bUgsa dk;Z ls oafpr djuk mfpr ugha gSA vr,o Jh dqekj dks dk;Z ls oafpr ugha fd;k tk; vkSj ,rn~ }kjk funsf'kr fd;k tkrk gS fd mUgsa iwoZ inLFkkfir LFkku ij dk;Zjr djk;k tk; A fo'oklHkktu g0@ vLi"V 28-1-2006 Mk0 ¼ds-½ ';ke ukjk;.k flag funs'kd izeq[k] LokLF; lsok,¡ AÞ Once the contents of aforementioned order of the Director in Chief, the higher authority have not been questioned in the counter affidavit filed by the respondent Civil Surgeon nor the specific statement made by the petitioner to this effect in paragraph 14 has been denied, it must be held that the petitioner was unauthorizedly subjected to stoppage of work and payment of salary and thus would be entitled for payment of full salary for the entire period in which he was illegally restrained from working on his post under the order of the Civil Surgeon of Kishanganj district. As a matter of fact, an order of the Collector dated 1.2.2007, Annexure- A to the counter 5 affidavit itself was sufficient to allow the payment of full salary to the petitioner for the period he was restrained from working under the order of Civil Surgeon, Kishanganj. Moreover, when the respondents have also admitted the claim for payment of salary in terms of order of the Collector Kishanganj from 1.2.2007, all that now the Civil Surgeon of Kishanganj District has to do is to find out the effect of his order restraining the petitioner from working on his post for the purpose of making payment of salary from the date the petitioner was restrained in writing under the order of Civil Surgeon, Kishanganj and till 1.2.2006. This exercise of making payment of admissible salary of the petitioner must be completed by the Civil Surgeon, Kishanganj district within a period of three months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, this writ application is disposed of. kanchan (Mihir Kumar Jha, J.)