The opinion
BARDGETT, Presiding Judge
(concurring in part and dissenting in part).
I concur in the holding of the principal opinion reversing the decision of the Personnel Advisory Board and ordering that the matter be remanded to that board for the purpose of determining the compensation due respondent but dissent from the views expressed in the principal opinion that the State is entitled to any offsets against the salary respondent lost by reason of this illegal discharge.
Sec. 36.390(5) (1) which establishes the relief to be given the employee in the event the discharge is not sustained states he is entitled to “such salary as has been lost by reason of such dismissal.” There are no deductions provided for in the statute. If the legislature had intended for there to be deductions for pay earned or which could have been earned elsewhere they would have said so.
The concurring opinion of Seiler, J., demonstrates how the very purpose of the merit system can be frustrated when the deductions authorized by the principal opinion are made and the employee must also stand the expense of attorney’s fees and expenses attending the processing of his claim over a long period of time. It seems to me that, under the principal opinion, what the law gives to the employee, the procedure takes away.
In my opinion, Wessler v. City of St. Louis, 242 S.W.2d 289 (Mo.App.1951), is very close to the instant case on the facts. Both cases basically involve governmental employees who are afforded a degree of job protection by the government employing them through the Civil Service provision of the St. Louis Charter and by the Merit System laws of Missouri. The principal opinion refers the appellant Missouri State Training School for Boys to the legislature if it desires a change in the statutory notice provision. I believe the same reference should be made if appellant believes the statutory law of this State ought *147 to allow for the deductions that appellant seeks on this appeal.
If the employee is permitted to recover his full salary loss, then he can pay his own attorney’s fees and expenses. I believe that if the statute is followed as written, the claims for loss of pay due to wrongful discharge under the Merit System will be expeditiously processed and this is to the benefit of both the employee and the State. Furthermore, the potential liability for full salary lost, as the statute provides, will motivate the state agency involved and the Personnel Advisory Board to closely adhere to the law. In any event, the statute does not provide for deductions and therefore I do not believe they are allowable.
I would follow Wessler v. City of St. Louis, supra, and hold that the statute does not allow for the application of the general rule of avoidable consequence and that respondent is entitled to an award of lost salary in full.