IN THE HIGH COURT OF JUDICATURE AT
PATNA
Civil Writ Jurisdiction Case No.10743 of 2010
1. Kamleshwari Rajak S/O Late Jamuna Rajak R/O Vill.-
Shivnaranpur, P.S.- Kahalgaon, Distt.- Bhagalpur, At Present
Posted As Panchayat Sevak At Khanpur Panchayat, Sultanganj
Block, Distt.- Bhagalpur
Versus
1. The State Of Bihar Through The District Panchayat Raj Officer,
Bhagalpur
2. The District Panchayat Raj Officer, Bhagalpur
3. The Block Development Officer, Sultanganj, Bhagalpur
4. The Panchayat Secretary, Block Office, Sultanganj, Bhagalpur
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3. 11.11.2011 Heard learned Counsel for the petitioner and the State.
This writ petition was filed on 12.7.2010 after serving two
copies in the office of the Advocate General staking a claim for salary
with regard to the period February 2009 to 9.1.2010 in addition to
arrears of salary for February 2005, July 2005, February 2006 and
February 2007.The petitioner is stated to be a Panchayat Sewak.
A Counter affidavit has been filed very recently on 16.9.2011
on behalf of respondents 2 & 3 affirmed by respondent no. 3. It states
that the deponent has gone through the contents of the writ
application as also records of the case and has fully understood the
same.
With regard to the claim for arrears of salary for the years
2005, 2006 and 2007 the counter affidavit states at para 13 that the
income tax return for the financial years 2004-2005, 2005-2006 and
2006-2007 were not submitted by the petitioner because of which
salary could not be paid. For the period July 2005 to February 2006
the salary could not be paid due to lack of allotment of funds. Para 14
acknowledges that salary even for January 2011 has not been paid.
The counter affidavit contends that a report had been called for the
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defects in the last pay certificate from the Block Development Officer,
Jagdishpur which was still awaited.
For the period February 2009 to January 2010 the counter
affidavit states that the petitioner was absent without information from
25.7.2009 and on 30.6.2009 he filed a petition for leave on medical
grounds and remained on leave till 13.8.2009 and joined on
14.8.2009. The petitioner has not submitted his income tax return for
the years 2008- 2009 and therefore payment of salary for the month
of February 2009 has not been made.
Payment of salary is a statutory right. At this stage it remains
totally under the domain of the administrator as a routine
administrative duty. Salary can be with held only in accordance with
law such as during suspension, a finding in a departmental
proceeding for unauthorized absence and/or failure to discharge
duties. For the periods relating to 2005/2006/2007 the counter
affidavit contends no defence in law whatsoever. No provision of the
service condition has been cited making it mandatory for the
petitioner to file income tax returns. Whether the petitioner had filed
the income tax return or not is for the Income Tax Authorities to
exercise powers in accordance with law. In so far as the respondents
are concerned they are best entitled to deduct the taxable income
from his salary and credit it to the Income Tax authorities which are
the statutory duty of the respondents themselves. The Court is
satisfied of the absence of any justification in law spelt out in the
counter affidavit for denial of salary for the said period.
In so far as the periods February 2009 to January 2010 is
concerned, the counter affidavit is not clear on whether medical leave
was sanctioned or not. If it was, the issue has to be considered in
accordance with the service conditions as to how the period has to
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be treated. There are no pleadings for denial of salary for the period
in question after accepting the period of medical absence claimed. If
there are any allegations against the petitioner they are not proof.
Even with regard to the same the respondents have an obligation to
act in accordance with law for payment of salary.
The matter was taken up for consideration on 8.11.2011 when
Learned Counsel for the State, on these queries requested for
accommodation till today. He submits after instruction that the
counter affidavit may be wanting on certain aspects and that the
matter may be adjourned for further counter affidavit.
The Court is not persuaded to adjourn the writ petition
keeping in mind the short nature of the claim and which has
remained pending before this Court for inordinate long period of one
and half years. Those holding public office are expected to be more
careful more so in a proceeding before the Court when they are
making statement on oath. The Court would not like to say any more
at this stage. In view of the fact that the respondents themselves
have failed to offer proper assistance and or put forth any sufficient
justification in law with respect to the claim let the petitioner appear
before the District Panchayat Raj Officer, Bhagalpur with a copy of
the present order.
On the date that the petitioner appears the District Panchayat
Raj Officer shall immediately inform him of the date fixed by him for
consideration. The original records shall be kept available by the
District Panchayat Raj Officer with him on that date. The District
Panchayat Raj Officer shall grant personal hearing to the petitioner. If
the District Panchayat Raj Officer proposes to rely upon any
materials from the original record to deny any salary to the petitioner
for any period in question he is obliged to furnish materials to the
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petitioner and if the petitioner asks for adjournment grant him a
suitable time to furnish his defence in the same and in this manner a
reasoned and speaking order shall be passed.
Let such exercise by the District Panchayat Raj Officer be
completed in its entirety, provided the petitioner himself cooperates
within a maximum period of two months from the date of receipt
and/or production of a copy of this order before him.
Needless to state that if the District Panchayat Raj Officer
finds justification in the claim or in any part of the claim necessary
consequential orders and payment shall be made to the petitioner
within the same period.
The writ application stands disposed.
Snkumar/- (Navin Sinha,J.)