D.G.R.PATNAIK, J. - (1.) HEARD counsel for the parties.
(2.) PETITIONER , in this writ application, has prayed for an order quashing the office order bearing Memo No. 345, dated -05.05.2007 (Annexure5), whereby the petitioner's claim for payment of his salary for the period of his suspension from 28.11.2001 to 03.10.2002 has been rejected. The petitioner has made a corresponding prayer for a direction upon the Respondents to pay him the salary for the aforesaid period after adjusting the amount of subsistence allowance paid to him during the aforesaid period. Facts of the petitioner's case are as follows: The petitioner was employed as a Teacher in the Government Middle School, Gomoh. Vide Office order dated 28.11.2001, issued by he Respondent No. 3, he was put under suspension in contemplation of a departmental proceeding. The departmental proceeding was initiated against him after service of a memo of charge on 15.01.2002. Upon considering the delay in concluding the departmental enquiry, the District Education Establishment Committee revoked the order of the petitioner's suspension with effect from 04.10.2002. At the conclusion of the departmental enquiry and on the basis of the findings in the enquiry report that the charge against the petitioner was proved, the Disciplinary Authority vide his order dated -09.01.2006 (Annexure -4), imposed the punishment of censure against the petitioner, which was ordered to be entered in his service book. It may be observed that neither on the date when the order of suspension was revoked nor on the date when the punishment was imposed, was any order passed as to how should the period of petitioner's suspension be treated, whether as period spent on duty for the purposes of computing pension or otherwise. Much later, when the petitioner demanded payment of his full salary for the period of suspension, the Disciplinary Authority proceeded to take a fresh decision, as recorded in the impugned order dated -05.05.2007 (Annexure -5) to the effect that though the period of petitioner's suspension shall be treated as period spent on duty for the purposes of computing pension, but he shall not be paid salary for the suspension period, except the amount of subsistence allowance, which he has already received. The impugned order further goes to record that the departmental enquiry is concluded.
(3.) ASSAILING the impugned order, Mr. Lalan Kr. Singh, learned Counsel for the petitioner would argue that the impugned order is totally illegal and in violation of the Service Rules. Learned Counsel would explain that by the first order dated -09.01.2006 (Annexure -4), whereby at the conclusion of the departmental enquiry, the Disciplinary Authority had imposed the punishment of censure, the departmental enquiry was deemed to be closed. Neither in the first order nor in the earlier order whereby the petitioner 'ssuspension was revoked, was any adverse decision taken against the petitioner for forfeiture of his salary for the suspension period. Learned Counsel argues further that after closing the departmental enquiry by imposition of punishment, the Disciplinary Authority did not have authority to retain and treat the proceeding as continuing and to inflict the further punishment of forfeiture as has been done by the impugned order. Referring to the provisions of Rule 97 of the Bihar Service Code, learned Counsel submits that the provisions of Rule 97 of the Code as adopted by the State of Jharkhand, is a mandate making it obligatory on the part of the concerned competent authority to pass necessary orders as to what would be the quantum of allowance payable during the period of suspension. No such order regarding payment of salary for the suspension period or treating the period of the petitioner's suspension, having been passed i.e., it was not within the competence of the Disciplinary Authority to reconsider the issue and pass a fresh order of punishment by way of forfeiture of salary for the suspension period. In support of his arguments, learned Counsel for the petitioner would refer to and relies upon the judgment of the Patna High Court in the case of Chandradip Sharma V/s. The State of Bihar and Ors. 1988 P.L.J.R. 1138 and to another judgment of the Patna High Court in the case of Smt. Dipali Kundu V/s. The State of Bihar and Ors. reported in 1999 (2) P.L.J.R. 302.;