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2002 DIGILAW 69 (PAT)

Mahendra Kumar Prasad v. State Of Bihar

2002-01-15

R.N.PRASAD

body2002
Judgment R.N.Prasad, J. 1. The petitioner is an employee of the respondents-Bihar State Scheduled Caste Co-operative Development Corporation Ltd. He was suspended vide order dated 12-5-1999, Annexure-5, on the ground that a criminal case has been instituted against the petitioner and one Sarju Manjhi on the charge that they by committing forgery have withdrwn Rs. 2,05,000.00 from the Bank. In the writ petition, it has been stated that allegation against the petitioner in the criminal case is false. Moreover, neither departmental proceeding has been initiated against him nor charge-sheet has been furnished to him. The criminal case is pending for investigation. The petitioner has been granted anticipatory bail. The petitioner has thus filed writ petition for quashing the order, Annexure-5. 2. In the counter-affidavit and supplementary affidavit, it has been stated that the petitioner has been suspended on the ground that a criminal case has been lodged against him on the charge that he and one Sarju Manjhi by committing forgery have withdrawn substantial amount from the Bank. Moreover, departmental proceeding has been initiated. The conducting Officer has been appointed vide Annexure 5 to the supplementary affidavit. The charge-sheet has also been furnished to the petitioner on 13-9-2000 which was received by him on the same day. 3. Learned Counsel for the petitioner, however, contended that since criminal case is pending investigation and the petitioner has been granted anticipatory bail the order, Annexure-5, is bad in law. In support of his submission, he relied upon a decision in the case of Arvind Kumar V/s. State of Bihar and Ors. 2001 (4) PLJR 502 . Whereas the learned Counsel for the respondents contended that the petitioner has been suspended on the ground that a criminal case has been lodged against him on the allegation that he by committing forgery has withdrawn substantial amount from the Bank and as such, there is no infirmity in the order of suspension. 4. To resolve the controversy raised in this case, it is necessary to examine the provision of suspension as provided in the Bihar Service Code. Rule 99 of the Bihar Service Code deals with an automatic deemed suspension in a case where a Government servant has been arrested on criminal charge or is detailed under any law providing for preventive detention or for debt, during the period for which he remains in custody. Rule 99 of the Bihar Service Code deals with an automatic deemed suspension in a case where a Government servant has been arrested on criminal charge or is detailed under any law providing for preventive detention or for debt, during the period for which he remains in custody. Rule 100 of the Bihar Service Code deals with suspension of a Government employee if criminal case is instituted against him which reads as follows: A Government servant against whom a criminal charge or a proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisoned (e.g. while released on bail) if the charge made or proceeding taken against him is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and allowance, the provisions of Rule 99 shall apply. 5. From perusal of the aforesaid provision it appears that Rule 100 mandates suspension only in a case where the employee of the Government is involved in criminal case. The grant of bail/anticipatory bail is not at all relevant for the purpose. In the case of Sarju Prasad Singh V/s. The State of Bihar and Ors. 1937 PLJR 285 the Full Bench of this Court has held as follows: The submission has, perhaps, to be only noticed and rejected. What Rule 100 requires is not a conviction of a criminal charge or the same being established as such. All that is envisaged by the statute in term is that against the Government servant a criminal charge should be pending. It does not even remotely conceive of a conviction thereon. Plainly enough, on a conviction of a criminal charge other stringent results would follow. As was noticed at the outset, when Rules 99 and Rule 100 are construed together, they visualise only the pendency of a criminal charge against the public servant for the purpose of either an automatic deemed suspension or a mandated specific order therefor. Plainly enough, on a conviction of a criminal charge other stringent results would follow. As was noticed at the outset, when Rules 99 and Rule 100 are construed together, they visualise only the pendency of a criminal charge against the public servant for the purpose of either an automatic deemed suspension or a mandated specific order therefor. To accept the contention of the learned Counsel would in effect be rendering the provisions of Rule 100 as totally redundant, because at the initial stages of a criminal charge being pending, there is no question of the same being either established or of a conviction thereon. Rule 100, therefore, has to be construed on the mere pendency of the criminal charge and not on any of the same being proved or established. The last submission of the learned Counsel must, therefore, fail. 6. Thus, on consideration, it is evident that for suspension under Rule 100 the requirement is that a criminal case must be pending against the employee of the Government. The grant of bail/anticipatory bail is relevant for revocation of the suspension order under Rule 99 of the Bihar Service Code and not under Rule 100 as the rule itself says with respect to suspension during the period when he is not actually detained in custody or imprisoned. However, in the case of Arvind Kumar, (supra), relied upon by the learned Counsel for the petitioner the Court considered that since the petitioner has been granted anticipatory bail in criminal case in its opinion the suspension order should not continue. In the said decision no law has been laid down. Moreover, the Full Bench of this Court in the case of Sarju Prasad Singh, (supra) has made legal position clear and as such, I find no merit in the writ petition. Accordingly, it is dismissed. 7. Learned Counsel for the petitioner, however, pointed out the guideline of the Government, Annexure-8/A, to show that if no cognizance has been taken in the criminal case for two years, the order of suspension should be revoked. In this regard it would not be out of place to mention herein that Annexure-8/A is merely an instruction. It is directory and not mandatory. Moreover, in such a situation, the petitioner is at liberty to move the authority concerned for redressal of his grievance.