RAM SAGAR SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) . In this application under Articles 226 and 227 of the Constitution of India the petitioner prays for quashing the order dated 16.3.85 (Annexure-1) passed by respondent No. 2 and for a direction to pay the full salary to the petitioner after deducting the suspension allowance paid to him.

(2.) The petitioner is a retired Headmaster of High School, Mahendrapur in the district of Begusarai. He was suspended with effect from 3.11.73 as he opposed the Secretary of the School in his attempt to embezzle the school amount. The petitioner filed a Title Suit against the order of suspension in which an interim injunction was first granted but was subsequently vacated. He also filed an application before the District Control Committee through the District Education Officer challenging the order of suspension. The Managing Committee of the school without notice to the petitioner and without holding any enquiry and hearing the petitioner discharged him on 29.8.74. Since the power of appointment, suspension and removal was taken away from the hands of the Managing Committee of all recognised high school and was vested in the Bihar Secondary Education Board from 21st May, 1974 by the repeal of Bihar Act 13 of 1960 by Bihar Ordinance No. 112 of 1974 on 21.5.74, the resolution of the Managing Committee dated 29.8.74 was void abinitio. The Secretary of the Managing Committee sent the resolution of the Committee regarding the discharge of the petitioner from service for approval to the District Education Officer (respondent No. 3) and the respondent No. 3 placed the matter before the District Control Committee and the District Control Committee in its meeting held on 16.12.74 approved the suspension of the petitioner but not of his discharge with a direction that the petitioner would be entitled to receive the suspension allowance as per rules. The aforesaid decision was communicated to the respondent No. 3 vide letter dated 20th December, 1974, a copy of which is Annexure-2. The petitioner thereafter continued to receive the suspension allowance. The District Control Committee again met on 12.1.76 and decided to lift the suspension order and in pursuance thereof order dated 13.8.76 was issued to the respondent No. 3 vide Annexure-3. The Managing Committee of the School then filed C.W.J.C. No. 1883 of 1976 against the order contained in Annexure-3 which was enclosed as Annexure-6 in the said writ petition. The Hon'ble High Court by its judgment and order dated 14th April, 1973 quashed the said order which as already referred to above is Annexure-3 to the present writ application. The petitioner continued to receive his suspension allowance. Meanwhile the Title suit filled by the petitioner against the order of suspension was dismissed for default. In a meeting held on 12.8.76 the District Control Committee again considered the matter and ordered that the suspension of the petitioner is being lifted and it also ordered for payment of back wages to the petitioner Meanwhile the petitioner retired from service on 5.3.77. The respondent No. 3 issued an order on 1st February, 1983, copy of which is Annexure-4, lifting the suspension of the petitioner and directing that he would be entitled to arrears of pay as per recommendation of the District Control Committee. Respondent No. 3 by his letter dated 7th Respondent No. 3 by his letter dated 7th March, 1983 directed the acting Headmaster of the School to comply with the order contained in Annexure-4 and a copy of the said letter is Annexure-5. The acting Headmaster of the school then filed C.W.J.C. No. 1668./83 in the High Court against the orders contained in Annexures-4 and 5 which were also Annexure-4 and 5 in the writ application of 1983. The Hon'ble court by its judgment and order dated 19.8.83 ordered for keeping Annexures-4 and 5 in abeyance and directed respondent No. 2 to consider and dispose of the matter within a month. In accordance with the direction given by the Hon'ble court respondent No. 2 heard the matter and passed the impugned order vide Annexure-1. By the impugned order respondent No. 2 after tracting out the chequered history of the case took note of the fact that the petitioner had retired with effect from 31.3.77 and hence he exonerated him from the charges without any enquiry but that he would not be entitled to any arrears of pay for the period commencing from the date of his suspension to the date of his superannuation.

(3.) Sri Rajendra Singh, learned Counsel of the petitioner argued that once Director of Secondary Education-cum-Special Secretary. Education Department, Government of Bihar (respondent No. 2) by the impugned order (Annexure-1) exonerated the petitioner of the charges levelled against him, he was duty bound to direct payment for arrears of salary for the period of suspension. In support of his contention Mr. Singh contended that the petitioner being a Government servant he would be guided in the matter by the provisions of Rule 97 of the Bihar-Service Code (in short the 'Code'). He referred to Clause (2) of Rule 97 of the Code which provides that in case the competent authority is of the opinion that the Government servant has been fully exonerated or in the case of suspension that it was wholly unjustified, the Government servant shall be given full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended as he case may be. Learned G.P. III appearing on behalf of respondents, however, contended that the petitioner having superannuated, responded No. 2 in pursuance of the judgment and order of the Hon'ble Court dated 19.8.83 in C.W.J.C. No. 1668/83 considered the matter and passed the impugned order specifically mentioning that the petitioner would not be entitled to arrears of pay during the period of his suspension. On behalf of (he State-respondent it was further contended that the provisions of the Code even if applicable to the order exonerating the petitioner of all the charges levelled against him had been passed only on account of the fact that he had superannuated on 31.3.77. Learned G.P. III relied on a decision of the Apex Court reported in A.I.R. 1974 S.C. 1074. The decision, however, does not appear relevant in the facts of the present case. It may be mentioned that whereas the impugned order gives the date of superannuation of the petitioner as 31.3.77, the petitioner's own case is that he superannuated on 5.3.77. The State-respondents for the reasons best known to them did not file any counter affidavit