Chandeshwar Mestar vs The Vice-Chancellor, Kameshwar Singh Darbhanga Sanskrit Vishwavidyalaya and Others

Narayan Roy, J.—Heard learned Counsel for the petitioner, leaned Counsel for the respondent-University and also learned Counsel for Respondent Nos. 3 and 4.

By this application, the petitioner has prayed for issuance of a direction upon the respondent-University to pay arrears of salary from July, 1999 till date.

It is submitted by learned Counsel for the petitioner that without any thyme and reason salary of the petitioner has been stopped from July, 1999, It is further submitted that initially, the petitioner was appointed by the Government Body of the Shri Harihar Sanskrit Mahavidyalaya, Bakulahar Math, West Champaran (hereinafter referred to as "the College") on the post of sweeper and his appointment was approved by the respondent-University vide letter as contained in Annexure-1 dated 9.4.1982 and since then he is working on the post of Sweeper and his salary was being paid all of a sudden his salary has been stopped from the month of July, 1999. It is also submitted that neither there is any enquiry pending against the petitioner nor his services have been terminated.

A counter affidavit has been filed on behalf of the respondent-University stating therein that the petitioner was appointed on non-existing post of cleaner and as such, the matter was being examined by the University in the light of the Government letter No. 714 dated 14.7.1999 and accordingly, the University had no option but to stop salary of the petitioner. No statement, however, has been made in the counter affidavit to show that any show cause notice has been given to the petitioner and the authorities have set up any enquiry against him nor his services have been terminated. Respondent Nos. 3 and 4 have also filed their counter affidavit stating therein, inter alia, that the petitioner was appointed against vacant sanctioned post on account of death of Nathuni Raut, as peon of the College, and salary could not be paid to the petitioner as it has been withheld by the University.

Now the question arises as to whether the authority of the University is competent to withhold salary of the petitioner though he is working on the post under the respondents. It is not in dispute that till date the petitioner is continuing on the post of Sweeper and it is also not in dispute that there is any enquiry pending against the petitioner and his salary has been withheld from July, 1999.

Even in a case where there is pending enquiry, the authority cannot withhold salary of its employees and only in a case where appointment is suspected to be ab initio void, the same can be said to be permissible as there is likelihood of termination of services of the employees. This question fell for consideration in the case of Ram Pati Mishra and Ors. v. The State of Bihar and Ors. PUR (3) 462.

The learned Single Judge of this Court in the case of Ram Pati Mishra v. The State of Bihar (supra) held:

From the order, as contained in Annexure 9, perse it appears that pending inquiries, the authorities have directed not to take work and not to pay salary to the petitioners. In my opinion, the direction aforesaid is wholly unjustified. The authorities firstly could have proceeded with the inquiry and in case, they would have been satisfied that such employees like the petitioners were not appointed in consonance with the provisions of Articles 14 and 16 of the Constitution of India, they could have issued necessary direction for removing them from service. The procedure adopted by the authorities, therefore, must be held to be wholly unwarranted in law. A large number of cases are every day coming before this Court against like directions.

The ratio down in the case of Ram Pati Mishra (supra), however, was doubted by another learned Single Judge of this Court and the matter was ultimately referred to the Division Bench and the Division Bench in the case of Radha Kumari and Another Vs. The State of Bihar and Others upheld the findings recorded in the case of Ram Pati Mishra (supra) by holding that on bald suspicion that the appointment was secured by illegal or fraudulent means, salary of the employees should not be stopped as it would result in grave injustice to such employees.

it is not the case of the parties that appointment of the petitioner has been suspected to be ab initio void nor it is a case of the parties that the petitioner is under suspension and he is getting his subsistence allowance. Even in a case where a delinquent is put under suspension, he gets subsistence allowance, as per Rule 96 of the Bihar Service Code. But here in the instant case, the petitioner is not getting even his salary though he is working on the post as usual.

Considering the facts and circumstances of the case and in view of the ratio, as noticed above, the authorities of the University are directed to pay salary of the petitioner with effect from July, 1999 till date within a period of three months from today.

With the aforesaid direction and observation, this application is disposed of.