Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1855 (PAT)

Sanjay Kumar v. State Of Bihar

2007-12-05

SHEEMA ALI KHAN

body2007
Judgment 1. The petitioner has challenged the order of suspension issued vide memo no. 2195, dated 29.3.2007 by the Director, Department of Welfare, Government of Bihar. 2. The petitioner had earlier challenged the impugned order by filing a writ petition numbered as CWJC No. 4522 of 2007. This court while disposing of the writ petition on 18.5.2007 had observed as follows: "It is only hoped and expected that the petitioner once having been placed under suspension will not be allowed to stay in that situation for long period of time. The departmental enquiry in this background is order of the day and it is hoped and expected that the respondents shall take steps for framing the charge, initiate a departmental enquiry in terms of Annexure-6 and conclude the same preferably within a period of four months from the date of communication or production of a copy of this order. The status of the petitioner under suspension shall be decided after submission of the enquiry report and depending upon the culpability if any which may emerge in the report. This period of four months has been fixed with this object that the petitioner shall not in any manner try to delay the proceeding unnecessarily and he does not remain under suspension for a long period. It is hoped and expected that he shall render full co-operation in the matter." 3. The departmental proceeding has not been disposed of and as such the petitioner has challenged the suspension order on two grounds. 4. The first submission of the petitioner is that the charges which were served on the petitioner show that the Director, Department of Welfare has a prejudice towards the petitioner. Referring to Annexure A/F which is memo of charges annexed to the counter affidavit it has been submitted that the first charge against the petitioner relates to a departmental proceeding by which the petitioner had been awarded minor punishment. The charge framed as charge no. 1 reads as follows: "SAB TABAH KARNE KE UDDESHYA SE TRUTIPURNA SWIKIRITYADESH TAIYAR KARNA, KARTAVYA KE PRATI LAPARWAHI B A R ATN A TAT H A SARKARI PA R I PATRON/AN UDES HON Kl AWAHELNA KARNA." 5. In my opinion it is not just to include this charge in the present proceeding as the petitioner has already faced the departmental proceeding and has been punished for the said charge. In my opinion it is not just to include this charge in the present proceeding as the petitioner has already faced the departmental proceeding and has been punished for the said charge. The principle underlined in arriving at this finding by the court is that a person cannot be punished for the same offence twice and, in my view, charge No.1 is completely unjustified. 6. Learned counsel for the petitioner next referred to charge No. 6 which reads as follows: "SARKARI PARIPATRON KAA AVMANYA". 7. The contents of this charge is that the petitioner ought not to have invoked the writ jurisdiction of this court as there is a provision of appeal against the order of suspension in the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as the Rules) framed under Art. 309 of the Constitution of India. 8. This charge cannot be the basis of instituting/initiating a departmental proceeding. This court in its wisdom had entertained the writ petition and passed an order directing the respondents to try and conclude the departmental proceeding within four months. It is well settled law that the court may interfere even if there is a provision of an alternative remedy in a particular case. Such a charge shows that the officer concerned has lack of understanding of the position of law and powers of the High court under Art. 226 of the Constitution of India. 9. The second point raised by the petitioner is that as per the direction of this court the proceeding ought to have been concluded preferably within four months. The respondents have submitted that the order of the court alongwith the representation of the petitioner was addressed to the Director Welfare, Bihar, Patna through the head quarters is at Purnea and the suspension order has been passed by the Deputy Director Welfare, Purnea Division. I find this to be a flimsy excuse as the memo of charges has been served by both the Director and the Deputy Director Welfare, Purnea Division and as such it cannot be said that the respondents were not aware of the order of the court. 10. I find this to be a flimsy excuse as the memo of charges has been served by both the Director and the Deputy Director Welfare, Purnea Division and as such it cannot be said that the respondents were not aware of the order of the court. 10. Learned counsel for the petitioner has submitted that in any event the disciplinary proceedings are to be governed by 2005 Rules wherein rule 9(7) reads as follows: "(7) Charge-sheet must be framed within three months from the date of issue of suspension order failing which on expiry of three months, the suspension order shall be revoked unless the authority, which issued the suspension order, passes the order renewing the suspension alongwith reasons to be recorded in writing for the delay in framing of charge-sheet for a further period of four months: Provided that after the expiry of extended period of four months the suspension order shall stand revoked if the charge-sheet is not framed." 11. The question then arises that whether the aforesaid rule 9(7) is directory or mandatory. It is now well settled by various decisions of the Supreme Court that the "question whether a rule or statute is mandatory or directory depends upon the intention of the legislature and not upon the language in which the intent is clothed. The manner and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it one way or the other." 12. The purpose behind the provision of sub-clause (7) of Rule 9 is that a person should not remain under suspension for a long period of time. The provision itself provides that the suspension order shall be revoked unless the authority which issued the suspension order passes an order renewing the suspension alongwith the reasons to be recorded in writing for the delay in framing of charge-sheet for a further period of four months. Thus, the very language of the rule envisages that the provisions are directory in nature as the phraseology in the rules suggests that the period of framing of charge-sheet can be extended by the authority concerned. Thus, the very language of the rule envisages that the provisions are directory in nature as the phraseology in the rules suggests that the period of framing of charge-sheet can be extended by the authority concerned. The purpose of the 2005 Rules are to streamline the manner in which disciplinary proceedings are to be conducted in order to avoid harassment to the parties concerned. The purpose is not to interpret the rules so strictly so as to defeat the very purpose for framing the rules. On the other hand for the purpose of interpretation of the period of framing charges under the rules, there is provision that charge-sheet should be framed within three months. The purpose is to avoid a situation where the future of the incumbent is hanging in the air because of the delay on the part of the authorities to frame the charge-sheet. This interpretation by the court that the rules are directory in nature, however, does not mean that the period of framing of the charges can be extended to an unreasonable period as that would in fact defeat the very purpose for which the rule is framed. Therefore, in any given case, it is open to the court to examine if there is a delay in framing of the charges and the reasons behind it before interpreting the provisions of sub-clause (7) of rule 9 of 2005 Rules. 13. Coming back to the facts of this case, the charges were served on 1.11.2007 and as such this court does not find that there is a delay in framing of the charge. 14. In the facts aforesaid this writ petition is disposed of in terms of what has been stated above and with the observation that the departmental proceeding should be disposed of within a period of two months which would including the passing of the final order from the date of receipt/production of a copy of this order before the disciplinary authority. The petitioner must co-operate with the disciplinary authority during the proceeding. The suspension order, dated 24.3.2007 shall automatically stand revoked on completion of two months mentioned above. The disciplinary authority will hand over the copy of the order of this court to the Head of the Department as well.