The main legal point established in the judgment is that an employee is entitled to full salary only if fully exonerated, as per the interpretation of Rule 97 of the Bihar Service Code.

Hemant Gupta, J.

Heard learned counsel for the parties.

2. The present Letters Patent Appeal is directed against an order passed by the learned Single Bench of this Court on 4th of October, 2012 in C.W.J.C. No. 14833 of 2012, whereby the appellant Bihar Industrial Area Development Authority (hereinafter referred to as "BIADA") was directed to reconsider the representation of the writ petitioner and to pass appropriate order in the light of Fundamental Rule 54A.

3. The facts in brief are that the services of Respondent No. 1, the writ-applicant, was terminated on 17th of March, 2008. The appeal against the order of termination was dismissed. Thereafter, the Respondent No. 1 filed writ application C.W.J.C. No. 6472 of 2010. The writ application was allowed on 6th of October, 2010 for the reason that the order has been passed in violation of the principles of natural justice. While setting aside the order of termination, liberty was given to the department to pass fresh order in accordance with law.

4. It is thereafter; in the disciplinary proceedings an order was passed exonerating the writ-applicant in respect of encroachment of land of M/s Shushila Enterprises but the writ applicant was found responsible for not taking action for removing the encroachment and consequently held guilty. After returning such finding, the punishment authority passed an order of non-payment of salary for the period 17.03.2008 till 22.11.2010 for the reason that payment of salary will be wastage of public fund.

5. The learned Single Bench passed an order rejecting the reasoning given by the competent authority of not paying wages for the intervening period and thereafter directed the authorities to pass a fresh order in terms of Fundamental Rule 54A.

6. Learned counsel for the appellants contends that Rule 54A is not applicable to the employees of BIADA as Fundamental Rule is applicable only to the employees of the Central Government. It is contended that in fact Bihar Service Code (hereinafter referred to as "the Code") would be applicable in respect of the employees engaged by an instrumentality of the State. He refers to Rule 97 of the Code which contemplates that an employee shall be entitled to full salary if he has been fully exonerated. Since Respondent No. 1 has been found guilty of not taking any appropriate action against the encroachment, therefore, the order passed is within the four corners of the scope of Rule 97 of the Code.

7. We have heard learned counsel for the parties and find merit in the present appeal. A perusal of the order shows that the Respondent No. 1 has not been fully exonerated. It is only in case of complete exoneration, an employee is entitled to full pay and allowance in terms of sub-clause (2) of Rule 97 of the Code.

Rule 97 of the Code is reproduced hereunder :-

"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 allowances 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 be given full pay and allowance to which he would have been entitled has 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 allowances 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 falli