Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18052 of 2012 =================================================== Chandra Shekhar Pd. Singh (Panchayat Sachiv) S/O Late Ram Lalin Singh R/O Village- Ganiari, P.S- Sakra, Distt- Muzaffarpur. .... .... Petitioner/s Versus 1.The State Of Bihar. 2.District Magistrate Muzaffarpur. 3.The (Muzaffarpur). Development Block Office, Mushari .... .... Respondent/s =================================================== Appearance : For the Petitioner/s:Mr. Ram Shankar Das For the Respondent/s:Mr. V.M.K Sinha AAG13 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2/ 22-03-2013 Heard counsel for the parties. The petitioner is aggrieved by order of his suspension dated 16.03.2011.
Legal Reasoning
eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction; Explanation.- The period of forty eight hours specified in clause (b) of this sub-rule shall be of computed commencement of the imprisonment after the conviction and for this purpose intermittent periods of imprisonment, if any, shall be taken into account. 3(i) After the custody period under sub-rule deemed period (2), suspension shall be deemed to end when the Government servant give his joining and the joining shall be accepted. (ii) If a decision is the Government servant against under sub-rule 1(a), or (b) or (c), then such action may be taken only after acceptance of joining and by issuing a separate order.” 8. Thus from the conjoint reading of Rule 9(2) and 9(3) it would be clear that moment a Government servant is taken into custody and his detention exceeds for a period more than 48 hours he will be deemed to be placed under suspension. After such person is released from the custody the deemed suspension has come to an end but then the employer has been given liberty to again proceed against such persons released from the custody as would be apparent from reading of Rule 9(3)(ii) of 2005 Rules. 9. In fact that is how the Full Bench of this Court in the case of Gyan Kumar Ram (supra) also after considering the whole scope of Rule 9 of 2005 Rules had concluded as follows: “20. In view of the above analysis, our conclusions are as follows:- (a) The time frame contemplated in Rule 9(7) is applicable only when an order of suspension is passed in contemplation of a disciplinary proceeding. On the of other
Arguments
Mr. Ramashankar Das, learned counsel for the petitioner while assailing the aforementioned order of suspension has submitted that since the order of suspension was passed on 16.03.2011 and the memo of charge of the departmental proceeding was framed after more than ten months on 31.01.2012, the order of suspension had automatically stood revoked in terms of Rule 9(7) of the Bihar Government Servant (Classification, Control & Appeal) Rules, 2005(hereinafter referred to as the 2005 Rules). He has also submitted that though the Patna High Court CWJC No.18052 of 2012 (2) dt.22-03-2013 2 petitioner has already filed his written statement of defence denying the charge but nothing has been done as yet and the petitioner is reeling under the order of suspension. Counsel for the State on the other hand, who has not filed any counter affidavit even after completion of the period of six months from the date of filing of this writ application, has only submitted that this case may be disposed of with a direction to the disciplinary authority to ensure that the inquiry against the petitioner so initiated must be concluded in a fixed time frame. In the considered opinion of this Court, the first aspect raised by Mr. Ramashankar Das has to be only noted for its being rejected. The order of suspension was passed against the petitioner due to his being involved in a criminal case and arrested in connection with the same. Rule 9 of 2005 Rules which fixes the time limit for initiation of the departmental proceeding within the scheduled time frame is only with regard to such order of suspension which has been passed in contemplation of departmental proceeding. Here in this case the petitioner when he was taken into custody in Patna High Court CWJC No.18052 of 2012 (2) dt.22-03-2013 3 connection with criminal case was placed under suspension. Thus in the light of the ratio laid down by the Full Bench of this Court in the case of State of Bihar and others vs Gyan Kumar Ram and others reported in 2009(4) PLJR 272, the question of automatic revocation of the order of suspension on account of non service of the memo of charge in the departmental proceeding within a period of three months will not be applicable as was held by the Full Bench in paragraph no. 20 and was recently relied by me in a similar situation in my order dated 22.02.2013 in CWJC No. 22934 of 2012(Uttam Chandra vs The State of Bihar and others) relevant portion whereof reads as follows:- 5. In the considered opinion of this Court the submission of the learned counsel for the State has to be accepted. From the facts noted above it would be clear that the suspension of the petitioner is out and out on account of his being made accused in a criminal case. Rule 9 of 2005 Rules in very categorical terms envisages such a situation where a person who is deemed to be placed under suspension on account of being taken into custody has to be dealt after being released on bail. In this regard from Rule 9(1) reads as follows: “9. Order of suspension.- (1) The appointing authority or any authority to 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 Patna High Court CWJC No.18052 of 2012 (2) dt.22-03-2013 4 aforesaid, 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 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 any servant criminal under investigation, in inquiry or trial and the competent authority is satisfied that it is expedient to suspend the Government servant in public interest.” offence respect in is of or proceeding 6. It would thus be clear that the suspension of a government servant can be either in contemplation of a departmental after framing of a charge in a departmental proceeding or even on account of being made accused in a criminal case. Therefore, whatever has been said under Rule 9 with regard to time limit for the purposes of revocation of suspension order has to be necessarily referred to for the departmental proceedings only. 7. The same becomes further clear from Rule 9(2) and Rule 9(3) of 2005 Rules which for the sake of clarity is quoted hereinbelow: “9(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority with effect from the following date:- (a) from the date of his or her detention, if he or she is detained in custody, whether on a criminal charge or otherwise for a period exceeding forty eight hours; (b) from the date of his or her conviction, if, in the event of a conviction for an offence he or she is sentenced to a term of forty imprisonment exceeding Patna High Court CWJC No.18052 of 2012 (2) dt.22-03-2013 5 of to the the date from taken suspend
Decision
order hand, if Patna High Court CWJC No.18052 of 2012 (2) dt.22-03-2013 6 if any and account proceeding, the contemplated suspension is passed by taking other into eventualities in Rule 9, the time frame is not applicable and the order of suspension continues until it is revoked or deemed to be revoked under any of the provisions; (b) Where an order of suspension is passed in contemplation of a disciplinary the charge sheet is required to be filed within a period of three months from the date of issuance of such order. On failure to frame charge sheet within the stipulated period, the concerned employee gets a right to claim that he should be reinstated in service such application is filed, the order of suspension is bound to be revoked. (c) Where the employee fails to exercise such right of being reinstated by making necessary application, there is no embargo for the competent authority to pass any order extending the suspension for reasons to be recorded in writing and there is no requirement that such an order is bound to be passed before the expiry of three months and in a given case, such an order is passed even after the expiry of the three employee in the meantime has not exercised his right of being reinstated. (d) Similarly, the right of the employee to get reinstated is defeated, if before he makes an appropriate the charge sheet is framed. (e) Where the competent authority passes an order renewing the is charge suspension, required to be framed within such further extended period which cannot be more than four months from the date of expiry of the original three months and if no application provided months, sheet Patna High Court CWJC No.18052 of 2012 (2) dt.22-03-2013 7 charge sheet is framed, the order of suspension stands revoked even without passing of any formal order. At this stage, of course, the authority is required to pass appropriate order of re-opening and at any rate, the concerned employee would be entitled to get full salary.” (underlining for emphasis) The order of suspension therefore, cannot be interfered on that ground. The next submission, however, of Mr. Das has however some merit. A person placed under suspension and subjected to departmental proceeding cannot be kept awaiting for conclusion of the departmental proceeding. Here in this case the memo of charge against the petitioner was framed on 31.01.2012 as would be apparent from the letter of the Muzaffarpur Collectorate contained in Annexure-4. The petitioner also has claimed that he had filed his written statement of defence on 12.02.2012. Since, there is no counter affidavit disclosing as to what has happened on filing of the written statement of defence by the petitioner, this Court will have to proceed on the basis that nothing has been done in the departmental proceeding as yet. This situation however cannot be countenanced in law. Thus, this Court would direct the Patna High Court CWJC No.18052 of 2012 (2) dt.22-03-2013 8 Collector of the Muzaffarpur district to ensure that the departmental inquiry so initiated against the petitioner must be completed within a period of four months from the date of receipt of this order. The inquiry officer must hold and conclude the departmental proceeding on day to day basis. If the petitioner does not cooperate in such departmental inquiry the same may be concluded ex parte. It is also made clear that since the petitioner has himself filed the written statement of defence without raising any question of same issue being pending in the criminal case, the authorities must ensure that the departmental proceeding is concluded without awaiting the result of the criminal case within a period of six months from the date of receipt of this order. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)