Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.19858 OF 2012 =================================================== SHASHI RANJAN KUMAR PANDEY, S/O LATE GANESH PANDEY, R/O VILLAGE SADAUA, VIA BARAULI, P.S SIDHWALIA, DISTRICT GOPALGANJ. .... .... PETITIONER/S VERSUS OF STATE SPECIAL THROUGH 1.THE PRINCIPAL BIHAR, SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2.THE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3.THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, SIWAN, BIHAR. 4.THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, MUZAFFARPUR. SECRETARY, RESOURCES WATER .... .... RESPONDENT/S =================================================== WITH CIVIL WRIT JURISDICTION CASE NO.20983 OF 2012 =================================================== UPENDRA PD. CHAUDHARY, S/O LATE RAM KRIT PRASAD CHAUDHARY, R/O VILLAGE SINGAILA, P.O. SINGALIA, P.S MOTIPUR, DISTRICT MUZAFFARPUR. .... .... PETITIONER/S VERSUS OF STATE SPECIAL THROUGH SECRETARY, 1.THE PRINCIPAL BIHAR, SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2.THE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3.THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR,PATNA. 4.THE ENGINEER, DEPARTMENT,SAMASTIPUR, BIHAR. 5.THE INSEPCTOR GENERAL OF POLICE, ECONOMIC OFFENCES WINGH, BIHAR, PATNA. RESOURCES RESOURCES WATER WATER CHIEF .... .... RESPONDENT/S =================================================== WITH CIVIL WRIT JURISDICTION CASE NO.21173 OF 2012 ================================================== MD. IDREES, S/O LATE MD. ABDULLAH, R/O ROAD NO. 15 AT AND P.S RAJIV NAGAR, DISTRICT & TOWN PATNA PRESENTLY EXECUTIVE ENGINEER, PLANNING AND MONITORING DIVISION 13 WATER RESOURCES DEPARTMENT GOVT. OF BIHAR, PATNA. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR, THROUGH CHIEF SECRETARY, PATNA. 2.THE PRINCIPAL SECRETARY RESOURCES WATER Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 2 WATER SPECIAL SECRETARY, DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4.THE CHIEF ENGINEER PLANNING AND MONITORING WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 5.THE CHIEF ENGINEER, WATER RESOURCES DEPARTMENT, MUZAFFARPUR. 6.THE INSPECTOR GENERAL OF POLICE, ECONOMIC OFFENCES WINGH BIHAR, PATNA. RESOURCES .... .... RESPONDENT/S =================================================== Appearance : (In CWJC No.19858 of 2012), (In CWJC No.20983 of 2012) and (In CWJC No.21173 of 2012) For the Petitioner/s:Mr. Prabhat Ranjan, Advocate For the Respondent/s:Mr. Devendra Kr Sinha AAG2 ================================================ CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 5/ 21-03-2013 Heard Mr. Prabhat Ranjan, learned counsel for the petitioner in all these cases and Mr. D.K. Sinha, learned A.A.G.-2 appearing on behalf of the State. 2. In all these three writ petitions there is a common prayer for quashing of the respective orders of suspension of petitioners dated 11.10.2012. 3. Learned counsel for the petitioners while assailing the aforementioned order has made three fold submissions. He has firstly submitted that the order of suspension suffers from the vice of malafide. He has also submitted that the order is really perverse and would shake the judicial conscience of any Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 3 prudent person. He has also submitted that when the defence taken by the petitioner in the writ application has not been controverted by the respondents in their counter affidavit, the very foundation of the order of suspension would go to make it vulnerable. 4. Additionally, he has submitted that even if the order of suspension is held to be valid, the order of the department drawing departmental proceeding by issuance of memo of charge dated 07.01.2013 would be in violation of the interim order passed by this Court on 17.10.2012 in C.W.J.C No. 19858 of 2012 and the order dated 05.12.2012 passed in C.W.J.C No. 21173 of 2012. He has however frankly conceded in the third cases being C.W.J.C No. 20983 of 2012 there is no interim order and it has been
Legal Reasoning
listed for the first time along with these two cases. The submission of learned counsel for the petitioner in this regard in rest of the two cases is that in view the stay order passed by this Court staying the operation of Annexures 4 and 5 in C.W.J.C No. 19858 of 2012, the authorities could not have lodged either the FIR or issued the order framing the charges and initiating the departmental proceeding. In Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 4 this regard, he has placed reliance on paragraphs 24 to 29 of the judgment of the apex Court in the case of Manohar Lal Vs. Ugrasen reported in 2010(11) SCC 557 .
Legal Reasoning
5. Mr. D.K Sinha, learned counsel for the State on the other hand has submitted that the petitioners were facing very serious charge and in fact the decision at the level of State Government to initiate both the departmental proceeding and criminal proceeding were passed on the objective consideration made as with regard to the gravity of charge. He has submitted that there cannot be any dispute as with regard to exercise of power of suspension in contemplation of the departmental proceeding and therefore, when the order of suspension for the petitioners on all these three cases were issued in contemplation of holding the departmental proceeding, the memo of charges to be framed and issued to the petitioners. 6. He has further submitted that the defence of the petitioner that they had valid reasons to cannot be gone into in the limited parameters under Article 226 of the constitution of India to weigh the evidence at the initial stage. He has also explained that Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 5 when the matter of encroachment over the land of Water Resources Department situated near and in the office premises of Punpun Flood Protection Division, Karbigahiya was brought into the knowledge of the higher authorities a fact finding enquiry was conducted by the senior officers of the Department in course of which it was detected that on the basis of a forged and unregistered deed of lease some encroachers had encroached upon the precious land of the Department on which an apartment was also being constructed. In course of fact finding enquiry it also got revealed from a zerox copy of the deed of lease received from the Addl. Collector, Patna that it did not bear the signature of any authority of Water Resources Department nor the year of execution had been mentioned therein. The authorities in fact after being satisfied that the said deed was never executed by the Water Resources Department had found that the Chainman of the Sub-Divisional Office, Naubatpur, namely, Roop Nasndan Sharma and the Moharrir Arjun Sah had fraudulently attested a zerox copy of the said deed as the true copy and on that basis a rent receipt was issued on 9.8.1986 by Md. Idris Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 6 (petitioner in C.W.J.C. No. 21173 of 2012), the then S.D.O., Naubatpur for the period 1991-92 to 1998-99. The second rent receipt thereafter was issued by Shashi Ranjan Kumar Pandey, the petitioner in C.W.J.C. No. 19858 of 2012 the then S.D.O. on 29.8.2000 for the period 1999- 2000 to 2001-02. The other rent receipts for subsequent period were also issued by the successor S.D.O. of the said Sub-division of Sone Canal Division, Khagaul till the year 2012 and all of them went to show that the officials of the Department had tried to validate the encroachment upon precious land of the Government in connivance with the encroachers. 7. He has also submitted that the malice on fact being a question of fact if no averments have been made by the petitioners nor any authority or officer has been personally impleaded by name in the writ applications, there would be hardly any occasion for this Court to go into the question of malafide. 8. As with regard to the violation of interim order Mr. D.K.Sinha, learned senior counsel for the State would submit that actually three different situations would emerge out from the facts of three cases. In Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 7 the first case of Shashi Ranjan Kumar Pandey both Annexures 4 and 5 were stayed and as such the memo of charge and thus the consequential memo of charge dated 7.1.2013 initiating departmental proceeding against the petitioner of C.W.J.C No. 19858 of 2012 should not have been issued till modification/clarification of the order of Stay. He would, however, submit that the same position, however, will not be available in the case of Md. Idrees the petitioner in C.W.J.C No. 21173 of 2012, inasmuch as, in this case the order containing decision of launching of criminal prosecution was not stayed and infact only the order of suspension dated 11.10.2010 had been stayed on 05.12.2012. He has also explained in the third case i.e. C.W.J.C. No. 20983 of 2012 of the petitioner Upendra Prasad Chaudhary, there is no interim order of stay and therefore, nothing can be said as with regard to the violation of the order. 9. In the considered opinion of this Court an order of suspension in contemplation of the departmental proceeding is well permissible within the ambit of Rule 9 of 2005 Rules and in this regard Rule 9(1) being Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 8 relevant is quoted hereinbelow: “9. appointing authority or any authority to
Decision
Order suspension.-(1) The of which the appointing authority is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Government by general or special order, may place a government servant under suspension when- (a) a disciplinary proceeding against the Government Servant is contemplated or is pending, or (b) in the opinion of the authority aforesaid, the government servant has engaged himself or herself in activities prejudicial to the interest of the security of the State, or (c) a case against the government servant in respect of any criminal offence is under investigation, inquiry or trial and the competent authority is satisfied that it is expedient to suspend the Government Servant in public interest.” 10. Thus from the reading of Rule 9(1) it would be absolutely clear that an order of suspension can be issued even in contemplation of a departmental proceeding. To that extent, this Court does not find any error in the impugned orders of suspension. The order of Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 9 suspension in fact also cannot be said without jurisdiction inasmuch as they have been passed by the appointing authority, the State Government itself as would be evident from Annexure-5 in the case of petitioner Shashi Ranjan Kumar Pandey which reads as follows:- fcgkj ljdkj ty lalk/ku foHkkx vf/klwpuk iVuk] fnukad 11-10-12 vf/klwpuk la[;k 22@fu0fl0 …iV0‰ 3&12@2012 1108 @iquiqu ck<+ lqj{kk ize.My djfcxfg;k] iVuk ds vUrxZr ty lalk/ku foHkkx dh cgqewY; ljdkjh tehu dk QthZ nLrkost rS;kj dj tehu dks vfrdzfer djrs gq, ml ij cgqeaftyh bekjr …vikVZesaUV‰ fuekZ.k dh dkjZokbZ dh tk jgha gSA tkylkth esa Jh ’kf’k jatu ik.Ms;] vkbZ0 Mh0&3309 rRdkyhu voj vuqe.My inkf/kdkjh] lksu ugj voj ize.My ukScriqj] iVuk lEizfr dk;Zikyd vfHk;Urk lkj.k ize.My ty lalk/ku foHkkx] Nijk }kjk fnukad 29-8-2000 dks vius gLrk{kj ls ,d jlhn dkVh xbZ gS tks o"kZ 1999&2000 ls ysdj 2001&02 rd ds fy, gSa vr,o ljdkjh tehu ds vfrdze.k esa mudh lfdz; vUrfyZIrrk ds izFke n‘"V;k izekf.kr vkjksi ds fy;s Jh ik.Ms; dks fcgkj ljdkjh lsod …oxhZdj.k] fu;a=.k ,oa vihy‰ fu;ekoyh 2005 ds fu;e&9 …1‰…d‰ ds rgr rRdky izHkko ls fuyafcr djrs gq, foHkkxh; dk;Zokgh pykus dk fu.kZ; fy;k x;k gSA mDr fu.kZ; ds vkyksd esa Jh ’kf’k jatu ik.Ms; dks rRdky izHkko ls fuyafcr fd;k tkrk gSA 2- fuyacu dh vof/k esa Jh ik.Ms; dks fu;ekuqlkj vuqekU; thou fuokZg HkRrk ns; gksxkA 3- fuyacu dh vof/k esa Jh ik.Ms; dk eq[;ky; eq[; vfHk;ark dk dk;kZy; ty lalk/ku foHkkx] eqtIQjiqj fu/kkZfjr fd;k tkrk gSA 4- foHkkxh; dk;Zokgh ls lacaf/kr ladYi vyx ls fuxZr fd;k tk jgk gSA fcgkj jkT;iky ds vkns’k ls g0@& 11@10@12 …’;ke dqekj flag‰ 11. That would bring this Court to the Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 10 main issue as to whether the order of suspension of the petitioner in contemplation of departmental enquiry can be held to be bad. By-now it is well settled that an order of suspension in contemplation of a departmental proceeding is well within the powers of the appointing authority. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of State of Orissa v. Bimal Kumar Mohanty, reported in (1994) 4 SCC 126, wherein their Lordships after relying on its Constitution Bench judgment in the case of R.P.Kapur v. Union of India, reported in AIR 1964 SC 787, as also in the case of Balvantrai Ratilal Patel v. State of Maharashtra, reported in AIR 1968 SC 800, as well as in the case of V.P.Gidroniya v. State of M.P., reported in (1970)1 SCC 362 and in the case of Govt. of India, Ministry of Home Affairs v. Tarak Nath Ghosh, reported in (1971)1 SCC 734, as well as in the case of U.P.Rajya Krishi Utpadan Mandi Parishad v. Sanjiv Rajan, reported in 1993 Suppl.(3) SCC 483, had gone to hold as follows: “13.It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 11 an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as am administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 12 would pay fruits and the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the progress of the investigation or inquiry etc.” 12. It is also not in doubt that there is a criminal case also pending against the petitioners and other Engineers and thus, the ratio of the judgment of the Apex Court in the case of Allahabad Bank & anor. v. Deepak Kumar Bhola, reported in (1997)4 SCC 1, will also apply with full force wherein it was held that: “An employee facing criminal prosecution should not be allowed to remain working on the post which would result in giving him further opportunity to indulge in the acts for which he was being prosecuted.” Thus, 13. anxious having given consideration this Court does not find any infirmity or illegality in the impugned order of suspension passed against the petitioners. As has been held above there are primafacie materials to show involvement of the petitioners and other engineers and employees Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 13 in taking action on the basis of which the encroachers had been emboldened to occupy the government land for making unauthorised construction of a multistorey building. 14. This Court will have also no difficulty in rejecting the plea of malafide specially when the learned counsel for the petitioners has confined his submissions only to the extent that the impugned orders of suspension are bad on account of malice of fact. For establishing the plea of malice on fact, there has to be specific averment in the writ application and the person concerned against whom such allegation has been made is to be also impleaded as a party by name in order to give opportunity to him to file his counter affidavit for either accepting or denying such allegations. In these three cases there is however no allegation of personal malafide against any of the authorities nor they have been impleaded as party by name. In that view of the matter, this Court following the ratio laid down by the Apex Court in the case of Pratap Singh Vs The State of Punjab reported in 1964 SC 72 will have no hesitation in rejecting the plea of malafide. Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 14 15. That would bring this Court to the last question as with regard to violation of the interim order of stay and its effect on issuance of the memo of charge dated 07.01.2013 issued individually against all the three petitioners. As discussed above the first interim order was passed in the case of Shashi Ranjan Kumar Pandey in C.W.J.C No. 19858 of 2012, wherein, by an interim order dated 17.10.2012 the operation of Annexure-4 and 5 had been stayed till further orders. Annexure-4 is a letter of the Special Secretary to the department dated 4.10.2012 directing the Chief Engineer lodging of criminal prosecution against the erring officials. Admittedly the FIR in compliance of the aforesaid order dated 4.10.2012 had already been lodged against the petitioners even before filing of the writ petition by the petitioner Shashi Ranjan Kumar Pandey on 16.10.2012 and thus no complain can be made by the petitioner Shashi Ranjan Kumar Pandey as with regard to lodging of the FIR on account of violation of interim order of stay passed on 17.10.2012. As a matter of fact, there is also no interim order of stay in respect of lodging of criminal prosecution Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 15 dated 04.10.2012 in the other two cases and therefore, this Court would not find any merit in the submission of learned counsel for the petitioners as against lodging of criminal prosecution or filing of the FIR against the petitioners on the ground of violation of the interim order of this Court dated 17.10.2012. 16. There is also no stay order in the case of Upendra Prasad Choudhary the petitioner in C.W.J.C No. 20983 of 2012 and therefore, nothing can be said at least by him in respect of issuance of memo of charge dated 07.01.2013 which was only logical outcome of the order of suspension passed against him. 17. The position, however, would be different in case of both the petitioners namely, Shashi Ranjan Pandey and Md. Idris, inasmuch as, in their writ applications being C.W.J.C No. 19858 of 2012 an interim order of stay was passed on 17.10.2012 and in C.W.J.C No. 21173 of 2012 on 05.12.2012. By the interim order in both the cases the entire operation of the suspension order dated 11.10.2012 had been stayed. The order of suspension of Shashi Ranjan Kumar Pandey having already quoted above, it would be also useful to quote the Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 16 order of suspension of Md. Idris which reads as follows:- fcgkj ljdkj ty lalk/ku foHkkx vf/klwpuk iVuk] fnukad 11-10-12 vf/klwpuk la[;k 22@fu0fl0 …iV0‰ 3&12@2012 1107 @iquiqu ck<+ lqj{kk ize.My djfcxfg;k] iVuk ds vUrxZr ty lalk/ku foHkkx dh cgqewY; ljdkjh tehu dk QthZ nLrkost rS;kj dj tehu dks vfrdzfer djrs gq, ml ij cgqeaftyh bekjr …vikVZesaUV‰ fuekZ.k dh dkjZokbZ dh tk jgha gSA tkylkth esa Jh bnjh’k vkbZ0 Mh0&2270 rRdkyhu voj ize.My inkf/kdkjh] lksu ugj voj ize.My ukScriqj] iVuk lEizfr dk;Zikyd vfHk;Urk ;kstuk ,oa eksfuVfjax ize.My&13] flapkbZ Hkou iVuk }kjk fnukad 9-8-96 dks vius gLrk{kj ls ,d jlhn dkVh xbZ gS tks o"kZ 1991&92 ls ysdj 1998&99 rd ds fy, gSAa vr,o ljdkjh tehu ds vfrdze.k esa mudh lfdz; vUrfyZIrrk ds izFke n‘"V;k izekf.kr vkjksi ds fy;s eks0 bnjh’k dks fcgkj ljdkjh lsod …oxhZdj.k] fu;a=.k ,oa vihy‰ fu;ekoyh 2005 ds fu;e&9 …1‰…d‰ ds rgr rRdky izHkko ls fuyafcr djrs gq, foHkkxh; dk;Zokgh pykus dk fu.kZ; fy;k x;k gSA mDr fu.kZ; ds vkyksd esa eks0 bnjh’k dks rRdky izHkko ls fuyafcr fd;k tkrk gSA 2- fuyacu dh vof/k esa eks0 bnjh’k dks fu;ekuqlkj vuqekU; thou fuokZg HkRrk ns; gksxkA 3- fuyacu dh vof/k esa eks0 bnjh’k dk eq[;ky; eq[; vfHk;ark dk dk;kZy; ty lalk/ku foHkkx] eqtIQjiqj fu/kkZfjr fd;k tkrk gSA 4- foHkkxh; dk;Zokgh ls lacaf/kr ladYi vyx ls fuxZr fd;k tk jgk gSA fcgkj jkT;iky ds vkns’k ls g0@& 11@10@12 …’;ke dqekj flag‰ ljdkj ds fo’ks"k lfpo Kkikad 1107 @ iVuk] fnukad 11-10-12** 18. Thus when the operation of the entire order as contained in Annexure-1 contained in C.W.J.C No. 21173 was stayed on 05.12.2012 in Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 17 the case of Md. Idris following the stay order dated 17.10.2012 (Annexure-5) in C.W.J.C No. 19858 of 2012 relating to the petitioner Shashi Ranjan Kumar Pandey, the respondents could not have issued the memo of charge on 7.1.2013 against them as that would clearly amount to overreaching the aforesaid stay order of this Court. Once this Court by its interim had stayed the entire order of suspension of the petitioners namely, Shashi Ranjan Kumar Pandey and Md. Idrish such order of their suspension being in two parts namely, containing the decision for their suspension as also initiation of departmental proceeding had got stayed and therefore, it was not open for the authorities of the department to initiate the departmental proceeding till the stay order had remained operative. 19. Mr. D.K Sinha, learned AAG-II also does not controvert this position but he has submitted that the department had initially proposed to file an appeal against the interim orders but such proposal was ultimately shelved and subsequently the authorities of the department had filed stay vacation petition in C.W.J.C. No. 19858 of 2012. Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 18 20. In the considered opinion of this Court, such explanation of Mr. Sinha has to be only noted for its being rejected. Mere filing of petition for vacating the stay on 1.2.2013 in C.W.J.C. No. 19858 of 2012 would not mean that the stay order passed on 17.10.2012 had become ineffective. To that extent the reliance placed by learned counsel for the petitioner on the case of Manohar Lal (supra) seems to be apt and appropriate, wherein after a detailed discussion in paragraph no. 24 to 29 it has been held that any action taken in violation of the interim order of the Court would be nullity in the eye of law. The Apex Court in this regard infact had laid down law in the following terms:- "24. In Mulraj Vs Murti Raghunathji Maharaj reported in AIR 1967 SC 1386 this Court considered the effect of action taken subsequent to passing of an interim order in its disobedience and held that any action taken in disobedience of the order passed by the Court would be illegal. Subsequent action would be a nullity. 25. In Surjit Singh Vs. Harbans Singh reported in (1995)6 SCC 50 this Court while dealing with the similar issue held as under: (SCC p.52, para 4) "4.... In defence of the Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 19 restraint order, the alienation/assignment was made. If we were to let it go as such, it would defeat the ends of justice and the prevalent public policy. When the court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the court orders, otherwise. The court, in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes." 26. In All Bengal Excise Licensees Assn. Vs. Raghabendra Singh reported in (2007) 11 SCC 374, this Court held as under (SCC p.387 para28) "28....a party to the litigation cannot be allowed to take an unfair advantage by committing breach of an interim order and escape the consequences thereof. .... the wrong perpetrated by the respondent contemnors in utter disregard of the order of the High Court should not be permitted to hold good." 27. In DDA V. Skipper Construction Co. (P) Ltd. reported in (1996) 4 SCC 622 this Court after making reference to many of the earlier judgments held: Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 20 (SCC p. 636, para 18) "18.... On principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them." 28. In Gurunath Manohar Pavaskar Vs. Nagesh Siddappa Navalgund reported in (2007) 13 SCC 365, this Court while dealing with the similar issues held that even a court in Procedure, 1908, in the event of coming to the conclusion that a breach of an order of restraint had taken place, may bring back the parties to the same position as if the order of injunction has not been violated. 29. In view of the above, it is evident that any order passed by any authority in spite of the knowledge of the interim order of the court is of no consequence as it remains a nullity." 21. Based on the aforementioned discussion, this Court will have no hesitation in holding that the memo of charge dated 07.01.2013 issued against the petitioner Shashi Ranjan Kumar Pandey and Md. Idrish initiating departmental proceeding against them during the continuance of interim order of stay are bad and cannot be acted upon. The memo of charge, however, in the case of the petitioner Upendra Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 21 Prasad Choudhary would still remain intact, inasmuch as, in his case there was no interim order of stay. 22. In view of the fact that this Court, however, has now not interfered with the impugned order of suspension also containing the decision of taking the proposed action for drawing of charges for initiating departmental proceeding against any of the three petitioners, the declaration of this Court as with regard to initiation of departmental proceeding by way of issuance of the memo of charge dated 7.1.2013 in case of Shashi Ranjan Kumar Pandey and Md. Idrish to be bad and inoperative will not stand in the way of the respondents to draw fresh memo of charge against them even by reproducing the same charge which was issued against them on 7.1.2013. Such memo of charge, if at all, it has to be issued against them must be done within a period of one month from the date of receipt of this order so that their order of suspension does not unnecessarily continue for an indefinite prolonged period of time. It is also made clear that the rider of time limit under Rule-9 of 2005 Rules for issuance of memo Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 22 of charge will not be made applicable in the cases of petitioners Shashi Ranjan Kumar Pandey and Md. Idrish if such memo of charge are issued within a period of one month from the date of receipt of this order. 23. Learned counsel for the petitioners at this stage has himself submitted that once this court has not interfered with the impugned orders of suspension the petitioners would themselves like to get their departmental inquiry concluded at an early date because they do not want to continue under suspension for an indefinite period. Learned counsel has also submitted that none of the three petitioners are also going to raise the issue of pendency of criminal case against them to be a bar for holding the departmental proceeding. 24. Mr. D.K. Sinha, learned counsel for the State has also submitted that the respondents are prepared to hold the departmental proceeding within fixed time frame as they would also not like the issue to remain pending. He however, had put a caveat that the departmental proceeding against the petitioners can only be completed expeditiously if they would co-operate with the inquiry officer and Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 23 the disciplinary authority. He has also informed this Court that a Chief Engineer had already been appointed as Enquiry Officer and if the petitioners would cooperate the departmental inquiry can be concluded expeditiously. 25. In view of the agreement between the parties as with regard to expeditious disposal of the departmental proceeding, this Court would set out a firm time limit by issuing following directions:- (a). while the petitioner Upendra Prasad Choudhary must file his written statement of defence within 15 days of receipt of this order, the rest of the two petitioners namely, Shashi Ranjan Kumar Pandey and Md. Idrish will file their written statement of defence within 15 days of service of the fresh memo of charge on them. (b) The inquiry officer must make his best endeavours to complete the departmental inquiry and submit his inquiry report within a period of three months from the date of filing of the written statement of defence by the petitioners. (c) The enquiry report must be examined by the disciplinary authority within a period of 15 days of its receipt from enquiry officer and if the disciplinary authority proposes to Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 24 inflict any punishment on the petitioner, the copy of enquiry report alongwith a show cause notice must be served on the petitioner within next 15 days i.e. within one month of submission of the enquiry report. (d) The petitioner must file his comment/ reaction to the enquiry report as well as reply to the show cause notice within 15 days of the receipt of the copy of the enquiry report alongwith the show cause notice. (e) The final order after considering show cause reply as well as comment/ reaction to the enquiry report filed by the petitioner must be passed within 45 days from the date of receipt of the reply filed by the petitioner. (f) If the petitioner does not co- operate in the departmental proceeding it will be open for the Enquiry Officer as also disciplinary authority to proceed ex-parte and conclude the proceeding as well as pass final order within the aforementioned time frame. (g) Any party violating the aforementioned directions contained in this order will be liable for being proceeded under the provisions of Contempt of Court Act, 1971. 26. The impugned orders of suspension of all the three petitioners will remain in force till a final order is passed in the pending Patna High Court CWJC No.19858 of 2012 (5) dt.21-03-2013 25 departmental proceeding against the petitioner. 27. It is also made clear that since the order of suspension of the petitioners Shashi Ranjan Pandey and Md. Idrish have remained stayed till today they would be entitled for full payment of salary from 11.10.2012 to 21.03.2013. The arrears of payment of salary for the aforesaid period to them must be made within a period of one month from the date of receipt of this order. From 22.03.2013 they would be entitled for payment of subsistence allowance till their suspension would continue strictly in accordance with 2005 Rules. 28. The third petitioner i.e. Upendra Prasad Choudhary, however, would be only entitled for payment of subsistence allowance from 11.10.2012 provided he has remained and would continue to remain present in the headquarters fixed under the order of suspension. 29. With the aforementioned observations and directions, all these three writ applications are disposed of. (Mihir Kumar Jha, J) Patna High Court Dated 21st March 2013 A.F.R./Ranjan