Lalit Mohan Sharma, J.

1. On a difference of opinion between Mr. Justice H. L. Agrawal (as he then was) and Mr. Justice M. P. Varma, on one of the questions involved in the present writ application, the case has been referred to me. The petitioner retired from State service on 31-3-1979 as a Civil Assistant Surgeon. A disciplinary proceeding was started against him many years back and he was put under suspension, and was allowed to draw subsistence allowance under Rule 96 of the Bihar Service Code. The proceeding had a chequered history. After the petitioner, filed his show cause he was served with another show cause notice with reference to a second proceeding in regard to the same charges. On receipt of the enquiry report, the State Government by Annexure-22, found the petitioner guilty and imposed on him the punishment of "one censor, stoppage of three increments, his absence from duty for about a year and 10 months to be treated as break in service with consequential financial loss and four adverse entries in the service book". Thereafter another notice (Annexure-23) was served on the petitioner mentioning, besides the earlier allegations, a fresh charge and asking him to show cause as to why he should not be discharged from service. The petitioner replied. Some further queries were made from the petitioner and the matter, thus, remained in correspondence for a considerable period and no final order was passed. Subsequently a fresh notice starling a separate departmental proceeding was isued but this proceeding also remained in a dormant state. The petitioner was to superannuate from service by the end of March, 1979 and in February, 1979, probably realising that fresh proceeding which had been initiated could not be concluded before his retirement, his suspension was withdrawn by the order in Annexure-27 and he was told that a decision regarding the payment of his salary et cetera for the period of suspension would be taken later after final examination of the matter. The petitioner, thus, joined on 28-3-79 and retired three days later. He claimed, inter alia, his full salary for the period of his suspension in CWJC 63 of 1980, which was disposed of by a direction to the State authorities to consider and pass appropriate orders on the representation of the petitioner which had been filed in this regard in the department. Ultimately, the order as contained in Annexure-34 was made on 21-1-1981 stating that the petitioner was guilty of disobedience of the orders passed by the State, and the State was, therefore, taking a decision to reimpose on him the punishment mentioned in Annexure-22. It was also said that the petitioner would not f be entitled to any additional payment beyond the subsistence allowance which he had already drawn, and for the period he was under suspension, he will be treated to have been in continuous service only for the purpose of pension

2. By the present writ petition the petitioner originally claimed his salary et cetera and by a subsequent petition he also challenged the order in Annexure-34, The case was heard by a Division Bench of which Mr. Justice H. L. Agrawal (as he then was) and Mr. Justice M. P. Varma were members. Mr. Justice Agrawal has held that in view of the rules included in the Bihar Service Code the Government had no jurisdiction to continue the departmental proceeding after the retirement of the petitioner and the portion of the impugned order in Annexure-34 imposing the punishment, therefore, was fit to be quashed. Mr. Justice Varma agreed with this view and I am not called upon to examine this part of the decision. On the question as to whether the petitioner was, in the circumstances, entitled to claim his full salary for the period of suspension, the learned Judges took divergent views. Interpreting Rule 97 of the Bihar Service Code Mr. Justice Agrawal held that as a general rule a Government servant cannot be held to be entitled to his full pay, in every case a discipl