An opportunity to show cause must be given before passing an order regarding pay and allowance payable to an employee for the period of suspension.

1. The petitioner in this application seeks to challenge the Government resolution, dated 5.3.1997 (Annexure 10) in so far as it denies payment of salary to the petitioner, beyond subsistence allowance, for the period of his suspension.

2. It appears that a disciplinary proceeding was held against the petitioner on certain charges. At the conclusion of the proceeding he was found guilty of the charges and it was directed, by way of punishment, to record a censure in his service book for the year, 1992-93; it was further directed that for the period of suspension the petitioner will not be entitled to any salary beyond the subsistence allowance paid to him.

3. The petitioner is aggrieved by the denial of his salary for the period of suspension.

4. Mr. Chandra Shekhar, learned counsel for the petitioner submitted that restricted payment of salary for the period of suspension cannot be awarded as a measure of punishment. He further submitted that the direction was bad as it was passed without affording the petitioner an opportunity to show cause.

5. It is true that the denial of full salary for the period of suspension is not one of the punishments enumerated under rule 49 of the Civil Services (Classification, Control & Appeal) Rules but that alone would not make the order bad provided the direction can be sustained on the basis of any other statutory provisions.

6. The relevant provision concerning payment of salary etc. for the period of suspension is to be found in rule 97 of the Bihar Service Code which is as follows :

"97. (1) When a Government servant who has been dismissed, removed or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order (a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall given full pay and allowance to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.

(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe : Provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible.

(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under clause (2) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose : Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant."

7. Mr. Chandra Shekhar candidly admitted that the petitioner could not claim payment of full salary for the simple reason that he was not fully exonerated and, therefore, the suspension in his case would not be wholly unjustified. Learned counsel further agreed that the case of the petitioner would, therefore, be covered by sub-rule (3) of rule 97. He, however, submitted that nevertheless the petitioner was entitled to an opportunity to show cause and perhaps he might have been able to pursuade the disciplinary authority had an opportunity been afforded that a smaller deduction instead of the total denial of salary for the period of suspension would be more appropriate and proper in the facts of the case. According to him, therefore, the disciplinary authority committed an error in making the direction for payment of restricted salary to the pet