Kapil Singh v. State of Bihar — 1982 DIGILAW 75 (PAT)

JUDGMENT: N. P. Singh, J.- The petitioner who is a Touring Veterinary Officer of the State Government, by an order dated 28.10.1981, passed by the Director, Animal Husbandary, Bihar has been put under suspension. A copy of the said order-is Annexure-1 to this writ application. The said order says that as the petitioner bad been taken in custody he was being suspended with effect from 25.9.1981 till further orders. It further says that during the period of suspension he shall be entitled to subsistence allowance in accordance with Rule 96 of the Bihar Service Code (hereinafter referred to as 'the said Code'). 2. According to the petitioner, as the aforesaid order was passed in exercise of the powers under Rule 99 of the said Code. It shall net remain in force after the petitioner was released on bail. The further grievance of the petitioner is that he could not have been suspended unless the departmental proceeding had been initiated against him. 3. The petitioner was taken into custody on 25.9.1981 in connection with a criminal case and was released on bail on 28.9.1981. In the impugned order, it has not been mentioned that the petitioner was being suspended under Rule 99 of the said Code., However, according to the learned Government Pleader, the order of suspension of the petitioner shall be deemed to be under Rule 49A of the Civil Services (Classification, Control and Appeal) Rules, 1950 (hereinafter referred to as 'the said Rules'), as such merely becauset he petitioner has been released on bail, the order of suspension shall not be inoperative. If the order is he1d to be one under Rule 99 of the said Code, then in view of Bench-decisions of this Court, in the case of Satya Narayan Pd. Shrivastava. Vs. State of Bihar and others1, there should not be any difficulty in holding that the petitioner shall be deemed to be under suspension only for the period during which he was detained in custody. As such it has to be construed whether the impugned order of suspension shall be deemed to have been passed under Rule 99 of the Code. It is an admitted position that no departmental proceeding has been initiated against the petitioner. 4. The power of Government to suspend any Government-servant has been the subject matter of controversy from time to time. It is an admitted position that no departmental proceeding has been initiated against the petitioner. 4. The power of Government to suspend any Government-servant has been the subject matter of controversy from time to time. This issue has become all the more complicated because of issuance of different Rules and Regulations in that respect from time to time governing the same classes of employees. The power to suspend in the sense of a right to forbid a Government servant to work is not an implied term of an ordinary contract between master and servant. This power can only be the creature either of a statute governing contract or expressed term in a contract itself. As was pointed out by the Supreme Court in the case of The Management, Hotel, Imperial... Vs...Hotel Workers Union2 :- "Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed there under, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay." The question as to whether it is an absolute privilege of the employer to suspend its employee and whether during this period the employee is entitled to his pay or part there of was further examined in the case of T. Cajee Vs. U. Jormanlk slems3 where it was observed as follows :- " ... In the circumstances therefore though an order of interim suspension could be made against the respondent while enquiry into his conduct with a view to his ultimate removal is going on, his remuneration according to the terms and conditions communicated to him cannot be withheld unless there is some statute or rules framed there under which would justify the withholding of the whole or part of the remuneration” Thus, the power to suspend was circumscribed with the limitation that it should be as an interim measure while an inquiry into the conduct of such employee is going on and the power to withhold whole or part of the remuneration during this period should also flow from some Rule. 5. In the case of Balvantrai Ratilal Patel... Vs...State of Maharashtra4 a slight departure was made from the view expressed in the case of The Management, Hotel Imperial Vs. 5. In the case of Balvantrai Ratilal Patel... Vs...State of Maharashtra4 a slight departure was made from the view expressed in the case of The Management, Hotel Imperial Vs. Hotel Workers Union, (Supra) where it was pointed out that an employee can be suspended while inquiry is pending into his conduct, even though there was no such term of contract of appointment or in the Rules. But in such cases, he shall be entitled for his remuneration during the period of suspension unless there was some statute or rule under which it could be withheld. It was observed as follows :- "... It is equally well settled that an order of interim suspension can be passed against the employee while an enquiry is pending into his conduct even though there is no such term in the contract of appointment or in the rules, but in such a case the employee would be entitled to his remuneration for the period of suspension if there is no statute or rule under which it could be withheld. " 6. The other question in this connection which has been the subject matter of controversy is as to what is the stage at which a Government-servant can be put under suspension; whether during the pendency of a departmental proceeding or even when a departmental proceeding is contemplated? In the case of Government of India Vs Tarak nath Ghosh5. it was pointed out :- "... In substance disciplinary proceedings can be said to be started against an officer when complaints about his integrity or honesty are entertained and followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made out against him for the framing of charges. When the order of suspension itself shows that Government was of the view that such a prima facie case for departmental proceedings had been made out the fact that the order also mentions that such proceedings were contemplated makes no difference..." In view of the aforesaid judgment, power to suspend was conceded even in such cases where departmental proceeding had not commenced but was only contemplated. This case was later considered by a larger Bench of the Supreme Court, in the case of P. R. Nayak Vs. This case was later considered by a larger Bench of the Supreme Court, in the case of P. R. Nayak Vs. Union of Indias, and by majority judgment, while considering the scope of Rule 3(1) of the All India Services (Discipline and Appeal) Rules, 1969, it was pointed out that the operation of Rule 3(1) of the aforesaid Rules was restricted only to those cases in which the Government concerned was possessed of sufficient material only after preliminary investigation or otherwise and the "disciplinary proceedings have, in fact, commenced and not merely when they are contemplated" . 7. In view of the aforesaid judgments of Supreme Court, it is almost settled that an employer can pass an order, of interim suspension against its employee while an enquiry is pending into his conduct. But suspension, where departmental proceeding is only contemplated and withholding of remuneration for the period of suspension, as a whole or part thereof, is permissible only when there is specific rule to that effect framed , by the competent authority, 8. Rule 99 of the said Code prescribes certain conditions under which a Government-servant shall be deemed to be under suspension including when he has been detained in custody. Rule 100 of that Code provides that a Government-servant against whom a criminal charge or proceeding for arrest for debt is pending an also be placed under suspension by issuance of a specific order to that effect. , This court in several judgments including the cases of Ajit Ranjan Bakshi Vs. Bihar State Electricity Board & other7, and Satya Narayan Pd. Srivastava Vs. The State of Bihar & others1 has held that if a Government-servant is in custody he shall be deemed to be under suspension under Rule 99, but the said order shall not be in force after he is released from custody unless a fresh order under Rule 100 of the aforesaid Code is passed against him. Admittedly no order under Rule 100 of the said Code has bean passed so far as the petitioner is concerned. But, as I have already pointed out, according to the respondents, the suspension of the petitioner shall be deemed to be under Rule 49A of the said Rules. Admittedly no order under Rule 100 of the said Code has bean passed so far as the petitioner is concerned. But, as I have already pointed out, according to the respondents, the suspension of the petitioner shall be deemed to be under Rule 49A of the said Rules. The aforesaid Rules were framed in exercise of the powers conferred by sub-section (2) of Section 96B of he Government of India Act and it governs different services in India, including Central and Provincial Services and it is still in force. 9. A Notification No, III/RI-101/63-8051A dated the 3rd July, 1963, was published in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India by the State Government adopting the aforesaid Rules for Class-I and Class-II employees of the Government of Bihar and The Bihar & Orissa Subordinate Services (Discipline and Appeal) Rules, 1935, for Class-III and Class IV employees in the following words :- "In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Bihar has been pleased to order the rules mentione4i in Column 1 of the schedule hereto annexed, in so far they arc not inconsistent with provisions of the said Constitution, shall apply mutatis mutandis to the classes of Government-servants under the State Government specified in the corresponding entries in column 2 of the said schedule. 2. This order shall be deemed to have come into force with effect from the 22nd December, 1956. SCHEDULE 1 2 1. Civil Service (Classification Control and Appeal) Rules. Class I & Class II. 2. The Bihar & Orissa Subordinate Services (Discipline & Appeal) Rules. 1935, Class III & Class IV. The effect of the aforesaid notification shall be that the Rules shall govern the Class-I and Class-II employees of the State Government. 10. In the said Rules. Rule-49A was introduced by a Notification No. 12110-P dated the 8th August, 1913. The relevant portion of the said Rule-49A is as follows :- “Rule 49A (I): The appointing authority or any authority to which it is subordinate or the Governor by general or special order, may place Government servant under suspension :- (a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial. (2) A Government servant shall - be deemed to have been placed under suspension by an order of appointing authority- (a) with effect from the date of his detention if he is detained in custody whether on a criminal charge or otherwise, for a period exceeding forty eight hours; (b) with effect from the date of his conviction if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation: The period of forty-eight hours referred to in clauses (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any shall be taken into account. (3) ………………… (4) ………............... (5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so........” Clauses (a) and (b) of Sub-rule (1) of the aforesaid Rule provide that a Government-servant may be placed under suspension where disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation inquiry or trial. Clause (a) of Sub-rule (2) of the aforesaid Rule also says in specific words that a Government-servant shall be deemed to have been placed under suspension with effect from the date of the detention, if he is detained in custody, whether on a criminal charge Or otherwise for a period exceeding forty-eight hours. In view of the aforesaid statutory provisions it has to be held that a Government-servant can be suspended not only when a departmental proceeding is pending but even when it is contemplated. Similarly if he is under detention for more than forty-eight hours, then also he shall be deemed to be under suspension. 11. Clause (a) of Sub-rule (2) of Rule 49A aforesaid is similar in sone respect to Rule 99 of the aforesaid Code. Similarly if he is under detention for more than forty-eight hours, then also he shall be deemed to be under suspension. 11. Clause (a) of Sub-rule (2) of Rule 49A aforesaid is similar in sone respect to Rule 99 of the aforesaid Code. But, in view of Sub-rule (5)(a) of Rule 49A, which says that order of suspension made or deemed to have been made under that Rule “shall continue to remain in force until it is modified or revoked by the authority competent to do so.", in my opinion, it is not possible to hold that an order of suspension under Sub-rule (2) (a) ceases to be operative no sooner the person concerned is released from custody. It need not be pointed out that when sub rule (5)(a) speaks in respect of an order of suspension made or deemed to have been made, it covers orders under Sub-rule (1) as well as Sub-rule (2) of Rule 49A. As such, if the impugned order is construed to be an order under Rule 49A (2)(a) then merely because the petitioner has been released from custody, it can not be held l that the said order of suspension has automatically been revoked like an order under Rule 99 of the Code. There is no dispute that the petitioner is either in Class-I or Class-II service of the State Government. Incidentally, I may point out that by the aforesaid Notification dated the 3rd July, 1963, the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935, which governs cases of Class-III a d Class-IV employees of the State Government have also been included in the schedule there of Even in the aforesaid Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 which governs cases of class-III and class-IV employees of the; State Government, Rule 3A containing identical provision to Rule 49A of the afore ail Rules, have been introduced by a Notification No. 12111-P, dated the 8th August, 1973. As such, irrespective of the fact to which category of service the petitioner belongs, if the order is not under Rule 99 of the said Code, the petitioner shall be under suspension even after his release from custody, unless such order is recalled by the competent authority. 12. As such, irrespective of the fact to which category of service the petitioner belongs, if the order is not under Rule 99 of the said Code, the petitioner shall be under suspension even after his release from custody, unless such order is recalled by the competent authority. 12. The impugned order, as I have already pointed out, says that as the petitioner had been taken in custody, he was being suspended with effect from 25.9.1981 till further orders, This order was passed on 28.10.1981 and it was made operative with effect from 25.9.81 the day the petitioner was taken in custody. In my opinion, this order is in terms of clause (a) of Rule 49A (2) of the aforesaid Rules, which says that a Government-servant shall be deemed to have been placed under suspension "with effect from the date of his detention", Rule 99 authorises the authority concerned to suspend a Government-servant who is detained is custody "until he is released from detention". If the order was under Rule-99, there was no question of issuing the same, when, on the date it was issued, the petitioner had been released from custody. While contending that the impugned order will be deemed to be an order under Rule 99 of the said Code, the learned counsel pointed out that towards the end of the order it has been mentioned that the petitioner shall get subsistance allowance in accordance with Rule 96 of the Code which meant even the order of suspension was under Rule 99 of the sad Code. It is an admitted position that there is no provision other than Rule 96 governing such government servants, regarding subsistence allowance during the period of suspension. As such by mere reference to Rule 96 in connection with the subsistence allowance, that order can not be held to be an order under Rule 99 of the aforesaid Code. 13. It was then submitted on behalf of the petitioner that as the Departmental proceeding has not been initiated against the petitioner, he could not have been suspended. The learned counsel for the petitioner placed reliance on the two Bench-decisions of this Court in the case of N. Sundaram. Vs. The State of Bihar and others, and the case of Binod Bihari Lal & others vs. Rameshwar Pd. Sinha & others.9 In the case of N. Sundaram. Vs. The learned counsel for the petitioner placed reliance on the two Bench-decisions of this Court in the case of N. Sundaram. Vs. The State of Bihar and others, and the case of Binod Bihari Lal & others vs. Rameshwar Pd. Sinha & others.9 In the case of N. Sundaram. Vs. The State of Bihar and others, a Bench of this Court on the basis of the aforesaid judgment of the Supreme Court in the case of A.I.R. 1972, Supreme Court, 559 held that an order of suspension can not be passed in anticipation of or a contemplated disciplinary proceeding. Although in the said Bench decision, reference has been made to Rule 49 of the aforesaid Rules, unfortunately the attention of the learned Judges was not drawn to Rule 49A which had been introduced as early as in the year 1973. Similarly, in the case of Binod Bihari Lal & others Vs. Rameshwar Pd. Sinha & others, also the attention of the Bench was not drawn to Rule 49A. 14. The learned counsel for the petitioner then submitted that even if it is held that the order of suspension is in force in view of Rule49A (2)(a) or Rule-49A(1) of the aforesaid Rules, it can not continue indefinitely and the respondents should have initiated the departmental proceeding as early as possible and should have concluded the same. It has come to our notice in several cases that without initiating any departmental proceeding, many government-servants are put under suspension for several months and in some cases even for years. Can it be said that such orders of suspension have been passed because disciplinary proceedings were contemplated? The general rule is that an employee should be suspended only when the departmental proceeding is pending. Of course, by a statutory rule, as in the instant case, this power can be exercised even where such departmental proceeding is contemplated. But, it need not be pointed out that the rule aforesaid in substance means that such departmental proceedings are to be initiated at an early date, otherwise, a Government-servant has to remain under suspension for years on the plea that a departmental proceeding is under contemplation. But, it need not be pointed out that the rule aforesaid in substance means that such departmental proceedings are to be initiated at an early date, otherwise, a Government-servant has to remain under suspension for years on the plea that a departmental proceeding is under contemplation. In my view, although the Rules aforesaid permit to put a Government-servant under suspension, even in cases where the departmental proceeding has not actually commenced, still, such Government-servant can approach the competent authority as well as this Court if the departmental proceeding is not initiated within a reasonable time. Similarly, if a Government servant has to remain in custody for a period exceeding forty-eight hours, in connection with some criminal charge and the investigation is not concluded or the trial does not commence within a reasonable time, when the offence alleged is not of a serious nature, the person concerned can approach the competent authority for re-consideration of the order of suspension in terms of sub-rule 5(a) of Rule 49 A of the aforesaid Rules. What shall be "reasonable time" has to be determined on the facts and circumstances of each case. 15. In the instant case, the petitioner has been put under suspension with effect from 25.9.1981. The offence alleged is regarding granting of some incorrect certificate in respect of a cow. It is said on behalf of the petitioner that even no departmental proceeding has been initiated as yet. Taking all facts and circumstances into consideration, I am of the view that it is only just and proper that charges, if any to be framed, should be communicated to the petitioner as early as possible and departmental proceeding should be concluded within four months from today. If it is not possible to conclude the said proceeding within the aforesaid period, the authority concerned should apply his mind in terms of Sub-rule 5(a) of Rule 49A of the aforesaid Rules as to whether the said order of suspension needs to be modified or revoked. It was also urged on behalf of the petitioner that most likely no departmental proceeding is likely to be initiated and the petitioner has been kept under suspension because he had been taken in custody on 25.9.1981 in connection with the criminal Case aforesaid lodged against him. It was also urged on behalf of the petitioner that most likely no departmental proceeding is likely to be initiated and the petitioner has been kept under suspension because he had been taken in custody on 25.9.1981 in connection with the criminal Case aforesaid lodged against him. The counsel appearing for the State has no information as to what is the stage of that criminal case which was lodged against the petitioner in respect of granting of an incorrect certificate. In such a situation, the authority concerned should apply his mind in terms of Sub-rule 5(a) of Rule 49A of the aforesaid Rules as to whether in view of the nature of the offence alleged and the fact that the investigation or trial is not likely to conclude within a reasonable period, the order of suspension should be revoked. 16. This writ application, subject to the aforesaid observation, is dismissed. In the circumstances of the case, however there shall be no order for costs. S. Roy. J.: I agree. Application dismissed.