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2008 DIGILAW 544 (PAT)

Yogendra Kumar Jaiswal v. State Of Bihar

2008-03-26

SHIVA KIRTI SINGH

body2008
Judgment 1. By the impugned order dated 24.10.2007 contained in Annexure-30, the petitioner has been placed under suspension by the order of the State Government in the Department of Health on account of a communication from Vigilance Department, Bihar disclosing that petitioner, Incharge State Drugs Controller, Bihar, Patna had been made an accused in a case under the provisions of Prevention of Corruption Act, 1988 on the allegation that he had amassed property beyond his known sources of income. The said criminal case has been instituted as Special Vigilance PS Case No. 003/2007 dated 11.10.2007 and is under investigation. Petitioner has been suspended under Rule 9(1)(c) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the Rules). Petitioner is to receive subsistence allowance under Rule 96 of the Bihar Service Code. The impugned order discloses that a separate resolution for disciplinary proceeding will be issued. 2. Petitioner has annexed documents and papers with a view to assail the lodging of a criminal case against him by the Vigilance but it is not possible to go into such matters at the present stage when the criminal case is pending for investigation. The main submission advanced by learned senior counsel is that since the investigation of the criminal case has not concluded and no charge-sheet has been filed by the investigating agency within three months from the date of issue of suspension order, the suspension order was required to be revoked as per provisions of Rule 9(7) of the Rules unless the authority which issued the suspension order i.e. the State Government passes another order renewing the suspension alongwith reasons in writing for the delay in framing of charge-sheet, for a further period of only four months. But after the expiry of extended period of four months, the suspension order has to be revoked on the ground that the charge-sheet was not framed. 3. But after the expiry of extended period of four months, the suspension order has to be revoked on the ground that the charge-sheet was not framed. 3. On a plain reading of Rule 9(1), it is found that the competent authority may place a Government servant under suspension in three situations: (1) when the disciplinary proceeding against the Government servant is contemplated or is pending, or (2) when in the opinion of the authority the Government servant is engaged in activities prejudicial to the interest of the security of the State, or (3) when a case against the Government servant in respect of any criminal offence is under investigation, inquiry or trial and the competent authority is satisfied that it is expedient to suspend the Government servant in public interest. For appreciating the submissions of the parties, sub-rule (7) of Rule 9 of the Rule needs to be quoted: "(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." 4. According to Mr. Ganesh Prasad Singh, learned senior counsel appearing for the petitioner, the expression framing of charge-sheet appearing in sub-rule (7) quoted above, would cover suspension under Ruie 9(1)(a) on account of contemplated or pending disciplinary proceeding as well as suspension under Rule 9(1)(c) on account of pendency of a criminal case under investigation or inquiry. It has been submitted that if the charge-sheet is not framed in the pending or contemplated departmental proceeding or if the charge-sheet is not submitted or filed in a criminal case pending at the stage of investigation or inquiry within the time stipulated under sub-rule (7) of Rule 9, in both the situations the order of suspension shall stand revoked either on expiry of three months or if the suspension order is renewed then after a further period of four months. 5. 5. According to Mr S.K. Ghosh, learned AAG-II the provisions in sub-rule (7) of Rule 9 are meant only to cover cases of suspension on account of a disciplinary proceeding under Rule 9(1)(a) and not in cases of suspension under Ruie 9(1)(c) because under Rule 9(1)(c) the suspension on account of a criminal offence covers the stage of investigation, inquiry as well as trial and if the submission advanced on behalf of the petitioner is accepted then such suspension cannot cover the stages of investigation, inquiry or trial if the investigating agency cannot file charge-sheet within the time indicated under Rule 9(7). He has further submitted that the police or the investigating agency only submits or files a charge-sheet whereas the expression used in Rule 9(7) is "framing". Lastly, it has been submitted that the interpretation of Rule 9(7) as advanced on behalf of the petitioner would render the last part of sub-rule (7) meaningless and unworkable because for renewing the suspension beiyond three months, the authority is required to record reasons in writing for the delay in framing of charge-sheet. But no such reasons will be available with the authority competent to suspend a Government servant if the expression"framing of charge-sheet" is interpreted to include filing of charge-sheet by the police or investigating agency. In case of delay in submission or filing of charge-sheet by the investigating agency, the reasons for the same would be only within the knowledge of the investigating agency and not the authority competent to pass order of suspension. 6. On a careful consideration of the two rival contentions noticed above, this Court is of the considered view that Rule 9(7) of the Rules must be interpreted to cover only the case of suspension under Rule 9(1)(a) i.e. on account of contemplated or pending disciplinary proceeding where a charge-sheet is required to be "framed" by the authorities competent to suspend the Government servants and they are in a position to know the reasons for the delay in framing of charge-sheet. It is relevant to notice here that under the Code of Criminal Procedure, Section 173 requires that on completion of investigation, the Officer Incharge of the police station shall forward to the competent Magistrate a report in the form prescribed stating the required particulars. The word charge-sheet or framing of charge-sheet is not the legal expression to indicate completion of investigation of a criminal case. The word charge-sheet or framing of charge-sheet is not the legal expression to indicate completion of investigation of a criminal case. The trial involves framing of charge by the court but there is no scope to hold that charge-sheet and charge are one and the same thing. 7. Even if it is presumed for the sake of hypothetical consideration that charge-sheet and criminal charge are same, in that case also the authority competent to suspend a Government servant cannot furnish the reasons for delay in framing of charge-sheet for the purpose of renewing the suspension. Hence, in any view of the matter, it is found that if Rule 9(7) is interpreted so as to include suspension on account of pendency of investigation, inquiry or trial into a criminal offence, a part of sub-rule (7) would be rendered unworkable and otiose. Such interpretation, therefore, must be avoided. Hence, this Court finds force in the submissions advanced by learned Additional Advocate General on behalf of the State and accordingly, it is held that sub-rule (7) of Rule 9 of the Rules is applicable only to an order of suspension passed under Rule 9(1)(a) on account of a contemplated or pending disciplinary proceeding and not in case of suspension under Rule 9(1)(c) on account of a criminal offence under investigation, inquiry or trial. 8. It may be useful to observe that power of a competent authority to suspend a Government servant as indicated in Rule 9(1) of the Rules is in public interest. The power in case of a Government servant facing criminal case covers the stage of investigation, inquiry or trial. Such power cannot be allowed to be restricted or taken away indirectly on account of delay in investigation by the investigating agency. In serious offences, the investigation may reasonably take long time and if the intention of the State Government would have been to curtail such power of suspension on account of delay by the investigating agency over which the authority competent to pass order of suspension has no control, there would have been more explicit and clear provisions in the Rules. It is again useful to notice here that the State Government has by way of policy issued circulars providing for review of suspension if it has continued beyond certain periods on account of pendency of a criminal case. It is again useful to notice here that the State Government has by way of policy issued circulars providing for review of suspension if it has continued beyond certain periods on account of pendency of a criminal case. It would be better for all concerned, if in the present context, relevant instructions are issued by the State Government for removal of doubts in exercise of power under Rule 33 of the Rules. 9. For all the aforesaid reasons and discussions, this Court finds no merit in the writ petition. It is accordingly dismissed. 10. Let a copy of this order be forwarded to learned AAG-ll.