Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 484 (PAT)

Akhilesh Kumar Sharma v. State Of Bihar

2008-03-12

MRIDULA MISHRA

body2008
Judgment 1. Petitioner, an Executive Engineer in Road Construction Department, Government of Bihar has filed this application for quashing the order of suspension dated 4.4.2007 contained in Memo No. 315(1) issued by the Deputy Secretary, Building Construction Department, Government of Bihar under the provisions of R. 9(2)(a) and 9(1)(C) of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the CCA Rules), on the ground that the respondent authority in violation of R. 9(3)(i) of Bihar CCA Rules is neither allowing him to join his duty nor revoking order of suspension. Another ground for challenging the impugned order of suspension is that even after lapse of more than seven months of issuance of order of suspension charges have not been framed and departmental enquiry not set up as such the order is liable to be quashed as provided under R. 9(7) of the CCA Rules. Petitioner is also aggrieved due to non payment of subsistence allowance as provided under Rule 10 of the CCA Rules. 2. Petitioner was caught red handed by the trap team of the department of Vigilance Patna, while accepting bribe from a contractor and taken into custody on 17.3.2007. Vigilance P.S. Case No. 037 of 2007 was instituted against him under Ss. 7/13(2) read with 13(1)(D), 8 and 9 of the Prevention of Corruption Act as well as Ss. 409, 419 and 420 of the Indian Penal Code. Petitioner was sent to jail in connection with the Vigilance case. An order of suspension dated 4.4.2007 was issued under the provisions of R. 9(2)(a) and 9(i) (c) of CCA Rules while the petitioner was in custody. Petitioner on being released from custody on 27.7.2007 went to give his joining which was not accepted and order of suspension also not revoked by the respondents. Petitioners case is that non-acceptance of his joining after being released from custody and non revocation of suspension order is in violation of R. 9(3)(i) of CCA Rules, as the suspension order was issued under R. 9(2) (a) of CCA Rules. 3. Further case of the petitioner is that the order of suspension is liable to be revoked under R. 9(7) of CCA Rules as till date no charge-sheet has been framed and departmental proceeding initiated by the respondents. 4. Counter affidavit has been filed denying the allegations made by the petitioner. 3. Further case of the petitioner is that the order of suspension is liable to be revoked under R. 9(7) of CCA Rules as till date no charge-sheet has been framed and departmental proceeding initiated by the respondents. 4. Counter affidavit has been filed denying the allegations made by the petitioner. It has been stated that R. 9(3)(i) of the Bihar CCA Rules 2005 is not attracted in the case of the petitioner as order of suspension was composite order issued under R. 9(2)(a) and 9(i)(c) of the CCA Rules. Petitioners continued suspension is in accordance with R. 9(i)(c) of the CCA Rules. When R. 9(i)(c) is in operation, the benefit of R. 9(3)(i) cannot be invoked by the petitioner. It has also been submitted that under Rule 33 of the CCA Rules, the Government in the Department of Personnel and Administrative Reforms has been authorized to interprete any of the provisions of CCA rules, in case of any doubt. Since several queries were made regarding the application of R. 9(3) of the CCA Rules the matter was referred to the Government in the Department of Personnel and Administrative Reforms for removal of the doubts. The Department of Personnel and Administrative Reforms vide letter no. 773 dated 27.3.2006 has circulated interpreted guidelines to different department. This guideline clarifies that a government servant if not under suspension from before and due to some sudden criminal proceeding is arrested and information thereto comes subsequently, in that case an order of deemed suspension can be passed under R. 9(2) of the CCA Rules. In case of deemed suspension passed during custody, under R. 9(2)(a), Rule (9)(3) can be revoked by the proceedy on being released from custody. In case of deemed suspension it is required to accept joining of government servant, revoke order of suspension and if necessary pass a separate order of suspension. In the present case the petitioner was not placed under suspension under R. 9(2)(a) only but also under R. 9(i)(c) which relates to an order of suspension passed against a government servant due to his involvement in a criminal proceeding in which investigation, enquiry or trial is going on and the competent authority is satisfied that it is expedient to suspend government servant in public interest. In the present case upon petitioners release from custody there was no need to pass a fresh order of suspension under R. 9(3)(i) or revoke his suspension, as suspension order was also under R. 9(i)(c) of the CCA Rules. 5. Regarding the continuance of suspension inspite of the fact that the charge-sheet is not framed within three months of the issuance of the order of suspension, it has been stated that the renewed suspension order as contemplated under R. 9(7) of the CCA Rules is not required in the given facts and circumstances of the case. The petitioner was suspended in accordance with R 9(2) read with R. 9(i)(c) which devoides need for issuing renewed suspension order. Petitioner is facing investigation in respect of a criminal offence which is likely to attract major punishment including dismissal from service, in the event of petitioners being found-guilty, and pursuant to conclusion of trial as a logical follow up to the investigation. Investigation has now been completed and cognizance taken against the petitioner therefore, suspension order issued under R. 9(2)(a) read with R. 9(i)(c) cannot be revoked. 6. For better appreciation of the sub mission of the parties R. 9 of Bihar CCA Rules 2005 is quoted as follows: 9. Order of Suspension: (1) The appointing authority or any authority to which the appointing authority is subor dinate or the disciplinary authority or any other authority empowered in that behalf by the Government by general or special order, may place a govern-ment 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 aforesaid, the government servant has engaged himself or herself in activities prejudicial to the interest of the secu rity of the State, or (c) a case against the government servant in respect of any criminal of-fence is under investigation, inquiry or trial and the competent authority is sat-isfied that it is expedient to suspend the government servant in public interest. (2) A Government servant shall be deemed to have been placed under sus-pension by an order of appointing au-thority 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 imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or com-pulsorily retired consequent to such conviction. Explanation:The period of forty-eight hours specified in clause (b) of this sub-rule shall be computed from the date of 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 (2), the period of deemed suspension shall be deemed to end when the government servant give his joining and the joining shall be accepted. (ii) If a decision is taken to suspend the government servant again under sub- rule (1), or (b) or (c), then such action may be taken only after acceptance of joining and by issuing a separate order. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant under suspension is set aside in appeal or on revision under these Rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant is set aside or declared or rendered void in consequence of or. (5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant is set aside or declared or rendered void in consequence of or. by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold further inquiry against the government servant to meet a situation where the court has passed an order purely on technical grounds without going into the merits of the case, on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (6)(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. (b) Where a government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him or her during the continuance of that suspension, the authority, competent to place him or her under suspension, may, for reasons to be recorded by it in writing, direct thai the government servant shall continue to be under suspension till the termination of all or any of such proceedings. (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. 7. Careful reading of R. 9 of CCA Rules make it clear that in case an order of suspension has been passed against the government servant there are three different provisions for revocation/modification and re-consideration of suspension order, they are R. 9(3)(i)(ii), 9(6) and 9(7) of CCA Rules. 7. Careful reading of R. 9 of CCA Rules make it clear that in case an order of suspension has been passed against the government servant there are three different provisions for revocation/modification and re-consideration of suspension order, they are R. 9(3)(i)(ii), 9(6) and 9(7) of CCA Rules. Rule 9(3)(i) and (ii) relates to the criminal proceeding, R. 9(6) relates to both departmental/criminal proceeding and R. 9(7) relates to an order of suspension passed in contemplation of departmental proceeding. So far rule 9(6)(a)(b) and (c) are concerned, it is a composite provision applicable for continuation, revocation or modification of order of suspension passed either in connection with disciplinary proceeding or criminal proceeding. A competent authority may for the reasons to be recorded in writing direct for continuation of order of suspension, modify or revoke the order of suspension. 8. Counsel for the petitioner submits that language of R. 9(7) is indicative of the intention of legislature. Rule 9(7) of CCA Rules has universal application, in case the intention of legislature would have been to exclude criminal proceedings from the purview of this provision it would have been mentioned specifically in the rule. When language of statute is clear and unambiguous this court should decide accordingly and it is not for the court to innovate a task on itself to interpret this provision. In support of his contention counsel for the petitioner has placed reliance on decision Vemareddy Kumaraswamy Reddy and Anr. V/s. State of A.P., 2006 2 SCC 670 Sanjay Kumar Manjul V/s. Chairman, U.P.S.C. and Ors., 2006 8 SCC 42 and A.N. Roy, Commssioner of Police and Anr. V/s. Suresh Sham Singh, 2006 5 SCC 745 . Wherein it has been held that: "Where, the words are clear, and there is no obscurity, or ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In such situation the! judges should not proclaim that they are playing the role of a law-maker merely for an exhibition of judicial valour." 9. What I find that there is no scope for interpretation of either R. 9(3)(i)(ii) or R. 9(7) of the Bihar CCA Rules, 2005 as under Rule 33 it has already been interpreted by the Department of Personnel and Administrative Reforms. What I find that there is no scope for interpretation of either R. 9(3)(i)(ii) or R. 9(7) of the Bihar CCA Rules, 2005 as under Rule 33 it has already been interpreted by the Department of Personnel and Administrative Reforms. Rule 33 of CCA Rules stipulates that if any doubt arises as to the interpretation of any of the provisions of these rules, the matter shall be referred to the Government in the Department of Personnel & Administrative Reforms and its decision shall be final. 10. For interpreting CCA Rules, the matter was referred to the Department of Personnel and Administrative Reforms and the interpretation has been issued as a guideline contained in letter no. 773 dated 27.3.2007. As per this interpretation the order of suspension was issued against the petitioner under R. 9(2)(a) and 9(i)(c) of the CCA Rules. Rule 9 (i)(c) deals with the situation where a case against the government servant in respect of any criminal offence is under investigation, enquiry or trial and the competent authority is satisfied that it is expedient to suspend the government servant in public interest. Rule 9(2)(a) deals with suspension of government servant, taken into custody in connection with a criminal case. Such suspension are guided by R. 9(3)(i) of CCA Rules. In the present case suspension order is of composite nature issued under R. 9(2)(a) and 9(i)(c) of CCA Rule. Rule 9(3)(i) has no application in such suspension orders. 11. In the present case investigation is complete, charge-sheet submitted and cognizance has also been taken. 12. Counsel for the State has also submitted that sanction for prosecution has been accorded in Vigilance P.S. Case No. 37 of 2007 by Law Department vide Memo no. 2936 dated 28.6.2007. The order of suspension has been passed against petitioner by competent authority since its continuation is essential in public interest. 13. Rule 9(7) of Bihar CCA Rules 2005 is also not applicable in the present case as order of suspension has not been issued under 9(1) (a) in contemplation of departmental proceeding, in which it is required that charge must be framed within three months from the date of issuance of suspension order. 14. The order of suspension is not continuing in violation of any of the mandatory provisions under the CCA Rules. However Rule 23 of the CCA Rules provides for appeal against the order of suspension. 14. The order of suspension is not continuing in violation of any of the mandatory provisions under the CCA Rules. However Rule 23 of the CCA Rules provides for appeal against the order of suspension. There is another provision under R. 9(6) where petitioner may approach the concerned authority for revocation/modification of the suspension order if it continues for a longer period. I find that almost in all cases of suspension, the government employees are rushing to this Court for quashing the order under Article 226 of the Constitution of India without exhausting alternative remedy as provided under CCA Rules. Unless there is undue and deliberate delay, or violation of rule of natural justice, or violation of mandatory provisions under the CCA Rules, writ application are not maintainable, if preferred without exhausting alternative remedy. This application is dismissed.