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2003 DIGILAW 326 (PAT)

Bala Prasad Choudhary v. State Of Bihar

2003-03-24

NARAYAN ROY

body2003
Judgment Narayan Roy, J. 1. Heard Counsel for the parties. 2. This writ application is directed against the communication, issued vide Memo No. 9364(S) Patna dated 10-12-2002, as contained in Annexure 3, whereby and whereunder the State of Jharkhand has been requested to put the petitioner under suspension in contemplation of a department proceeding. 3. Learned Counsel appearing on behalf of the petitioner submitted that the communication, as contained in Annexure 3 is wholly without jurisdiction and based on non est grounds. It is further stated by learned Counsel appearing on behalf of the petitioner that that the authorities had already asked for explanation from the petitioner vide letter No. 5984 (S) we dated 17-8-1998 about the allegations made in Annexure 3 and the petitioner had submitted his explanation on 10-10-1998 to the joint Secretary, Road construction Department Government of Bihar, and the same was considered and no action was directed to be taken against the petitioner and when the petitioner has provisionally been allocated to the State of Jharkhand and has been posted as Assistant Engineer in the Road Construction Department of the State of Jharkhand, the impugned communication has been made without any rhyme or reason. It is also submitted that from the impugned communication and the enclosures made thereto it would appear that there ts no whisper against this petitioner and certain omissions and commissions have been found against one Gaya Prasad Diwakar, Junior Engineer, for the period 1991-1992 to 1995-1996 and even the conduct of the petitioner has not been doubted while he remained posted along with Gaya Prasad Diwakar up to 1996 and the petitioner was transferred and relieved from his previous posting on 21-2-1997 and, therefore, the communication, as contained in annexure 3, requesting the State of Jharkhand to put the petitioner under suspension is wholly without jurisdiction. It is also submitted that Gaya Prasad Diwakar, the Junior Engineer, was incharge of the bitumen etc. 4. A counter affidavit has been filed on behalf of Respondent No. 2 stating therein, inter-alia. that the petitioner since was posted in Chhitoni Section of Sheohar Subdivision as on Assistant Engineer and there were certain allegations against the Junior Engineer, Gaya Prasad Diwakar, the petitioner was supposed to report the matter to the appropriate authority for necessary action agafnst Sri Gaya Prasad Diwakar and since the petitioner kept mum, his involvement in the matter cannot.be ruled out. It is also stated in the counter affidavit that an explanation was asked for from the petitioner vide letter No. 6984 (S) We dated 17-9-1998 and the submitted his explanation on 10-10-1998 to the Joint Secretary, Road Construction Department, Government of Bihar, and the same was considered and appropriate action was suggested vide Annexure 3. 5. From annexure 3, the impugned communication, it appears that some of the enclosures were appended to it showing omissions and commissions on the part of the petitioner. The enclosures of Annexure 3 have been brought on record. From enclosures, as appended to Annexure 3, it appears that the conduct of the petitioner was never doubted, rather prima-facie allegations of misappropriation of bitumen against Gaya Prasad Diwakar, the Junior Engineer, were found and nothing specific has been said about this petitioner and his conduct merely has been doubted. 6. From Annexure 2 series to the writ application, it would appear that this petitioner had made several communications with the Executive Engineer of the Division alleging certain irregularities against Gaya Prasad Diwakar, the Junior Engineer and had also justified his action in not completing the accounting of bitumen and other articles due to non-supply of the relevant details by the Junior Engineer. 7. From the materials and the enclosures appended to the impugned communication. I do not find even prima-facie materials to put the petitioner under suspension in contemplation of a departmental proceeding nor there is anything to show that there are exigencies to put the petitioner under suspension. The appointing authority though has jurisdiction to put a Government Servant under suspension under Rule 49A of the Civil Services (Classification, Control and Appeal) Rules (hereinafter to be referred to as "Rules") pending a disciplinary proceeding or in its contemplation or in a case, where criminal investigation, inquiry or trial is pending. The power as envisaged under Rule 49A of the Rules, however, is required to be exercised was on the basis of prima-facie materials showing involement of the Government servant. In the case at hand, I do not find any material, whatsoever, against the petitioner to put him under suspension and the matter, at best may be enquired. 8. The power as envisaged under Rule 49A of the Rules, however, is required to be exercised was on the basis of prima-facie materials showing involement of the Government servant. In the case at hand, I do not find any material, whatsoever, against the petitioner to put him under suspension and the matter, at best may be enquired. 8. It is not in dispute that the petitioner was transferred and was relieved from Sheohar Sub-division with effect from 21-2-1997 and he has submitted his explanation immediately thereafter, as asked for by the concerned Department and no action was suggested. It is also not in dispute that the petitioner vide Annexure 2 series had made several communications with the Executive Engineer of the Division for non-completion of the accounting of bitumen for the laches of the Junior Engineer, Gaya Prasad Diwakar, who was incharge of bitumen etc. 9. It does not appear to be a case where the petitioner kept mum and had not-disclosed the fact about the omissions and commissions on the part of the Junior Enginee, to the superior authorities. 10. For the reasons aforementioned, this application is allowed and that part of the communication/order, as contained in Annexure 3, whereby and whereunder the State of Jharkhand has been requested to put the petitioner under suspension is set aside. No order as to costs.