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2011 DIGILAW 353 (PAT)

Birendra Kumar Singh v. State of Bihar

2011-03-08

body2011
ORDER Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner has filed this writ application for quashing part of notification dated 4.2.2010, as contained in Annexure6, by which suspension of the petitioner has been revoked with immediate effect. He has further prayed for a direction to the respondents to revoke his suspension with effect from 10.11.2009, the date on which he had applied for revocation of his suspension in terms of Rule 9(7) of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005. 3. Learned counsel for the petitioner submits that the petitioner was suspended with immediate effect by notification dated 10.8.2009, as contained in Annexure-2, in terms of Rule 9(1)(ka) of the said Rules. He submits that within three months charge sheet was not submitted and therefore, on expiry of three months petitioner applied for revocation of his suspension, vide Annexure3. Same was considered by the respondents and it was noticed by them in the impugned notification itself that within three months charge sheet had not been submitted. Therefore, by the notification petitioner was released from suspension, but with immediate effect i.e. from 4.2.2010. He submits that in view of authoritative pronouncement of the Full Bench of this Court in the case of State of Bihar & Ors. Vs. Gyan Kumar Ram [ 2009(4) PLJR 272 ], relevant date for rev0cation of suspension of any delinquent has to be the date of application expressing intention to resume his duty. Any subsequent development in the intervening period from the date of application till the date of order shall not be relevant and it will not frustrate the right of the delinquent to resume his duty. On the other hand, after expiry of three months, if the delinquent fails to file any application for revocation of his suspension and the suspension period is extended or charge sheet is submitted, right of the delinquent to get his suspension revoked will stand extinguished. He has particularly referred to the observations of the Full Bench as made in paragraph 17 of the judgment, which is being reproduced herein below :- "17. The law is well settled that no provision of any statutory rule should be read in isolation and effort should be made to harmonise all the provisions. He has particularly referred to the observations of the Full Bench as made in paragraph 17 of the judgment, which is being reproduced herein below :- "17. The law is well settled that no provision of any statutory rule should be read in isolation and effort should be made to harmonise all the provisions. It is to be noticed that Rule 9(7) empowers the competent authority to pass an order renewing the suspension with reasons to be recorded in writing for the delay in framing charge-sheet, if charge-sheet is not framed within three months and no order renewing the suspension is passed, at that stage, the employee has the right to seek for revocation of the order of suspension and in such an event, the order of suspension is bound to be revoked once the employee evinces his intention to resume duty by making appropriate application before the concerned authority or even in a court of law. If by the time the employee makes an application for reinstatement on account of the non-compliance with Rule 9(7), the authority concerned will have no further discretion in the matter and is bound to reinstate him in service. If, on the other hand, before the employee evinces clear intention to be reinstated, the competent authority issues any order renewing the order of suspension for reasons to be recorded in writing, the cloud regarding the vulnerability of the suspension is cleared and thereafter there will not be any occasion for the suspended employee to claim that he must be reinstated in service notwithstanding the fact that in the meantime the competent authority has passed an appropriate order renewing the suspension. What is to be noticed is that Rule 9(7) does not lay down in clear terms that the order extending suspension cannot be passed even after there has been some gap. Similarly, if, before the employee exercising his right of claim for reinstatement, charge-sheet is framed, the vulnerability of the suspension order on account of the fact that charge-sheet is not framed within the three months period comes to an end." 4. Learned counsel for the respondents submits that the conclusion of the Full Bench is contained in paragraph 20 of the judgment and conclusion no. (b) does not spell out as to which shall be the relevant date for consideration of the right of the delinquent for revocation of his suspension. Learned counsel for the respondents submits that the conclusion of the Full Bench is contained in paragraph 20 of the judgment and conclusion no. (b) does not spell out as to which shall be the relevant date for consideration of the right of the delinquent for revocation of his suspension. He submits that since the Full Bench has not specifically mentioned about such relevant date in its conclusion, the date of consideration of the application and passing of the order should be taken as the relevant date. He further submits that the petitioner had filed application for revocation of his suspension on 10.11.2009 which was considered in the earlier writ application of the petitioner and his writ application was disposed of by order dated 7.1.2010, vide Annexure-4, without any order for revocation of his suspension. He submits that the learned single Judge had noticed this fact in the earlier writ application and had remitted the matter to the concerned authority for consideration, which was considered, and impugned notification (Annexure-6) has been issued and therefore, the same issue is not available to the petitioner to raise it again. 5. In view of the submissions of learned counsel for the respondents, it is appropriate to reproduce conclusion no. (b) of paragraph 20 of the Full Bench judgment also in this order as hereunder :- 20....(b) Where an order of suspension is passed in contemplation of a disciplinary proceeding, the charge-sheet is required to be filed within a period of three months from the date of issuance of such order. On f 3ilure to frame charge-sheet within the stipulated period, the concerned employee gets a right to claim that he should be reinstated in service and if any such application is filed, the order of suspension is bound to be revoked." 6. On f 3ilure to frame charge-sheet within the stipulated period, the concerned employee gets a right to claim that he should be reinstated in service and if any such application is filed, the order of suspension is bound to be revoked." 6. So far as the second submission of learned counsel for the respondents that since in the earlier writ application learned single Judge had noticed the petitioner's claim for revocation of his suspension under Rule 9(7) of the Rules on his application dated 10.11.2009 and had referred to the authorities, which has been considered and orders have been passed, as contained in Annexure-6, is concerned, it will be appropriate to reproduce the operative portion of the order of the learned single judge passed in the earlier writ application of the petitioner also in this order hereinbelow:- "The writ application is disposed with direction to the respondents to examine the issue of suspension of the petitioner in light of the aforesaid discussion and the law 13id down by the Full Bench, within a maximum period of two months from the date of receipt/production of a copy of this order." 7. Dealing with the second submission of learned counsel for the respondents, it is appropriate to point out that after noticing the stand of the petitioner and the respondents, this Court had directed the respondents to examine the issue of suspension of the petitioner in the light of the aforesaid discussions and the law laid down by the Full Bench. Clearly, the matter was not decided by the learned single Judge and it was remitted back to the concerned authorities to be decided in the light of the law laid down by the Full Bench. Therefore, petitioner was at liberty to challenge any order passed by the authorities if he was of the view that the same had not been passed in the light of the law laid down by the Full Bench. 8. By the impugned notification, though the suspension of the petitioner has been revoked, but as per submissions of the petitioner, effective date of revocation of suspension ought to have been the date of application and not the date of order. 8. By the impugned notification, though the suspension of the petitioner has been revoked, but as per submissions of the petitioner, effective date of revocation of suspension ought to have been the date of application and not the date of order. His stand is that the law has been clearly laid down by the Full Bench in this regard and hence the same has to be taken as the relevant date by either of the parties for any further action. 9. It is true that in conclusion no. 20(b), the Full Bench has not indicated with regard to the relevant date for consideration of an application for revocation of suspension in terms of Rule 9(7) of the Rules. However, the observations of the Full Bench in paragraph 17 of the Judgment, as quoted : above, make it amply clear that the relevant date has to be the date of submission of an application for the purpose by the delinquent before the authorities or an application in a court of law. The expression of the Full Bench “order of suspension is bound to be revoked once the employee evinces his intention to resume duty by making appropriate application before the concerned authority or even in a court of law" clearly shows that the date of action of the delinquent expressing his intention to resume his duties by filing application before the authorities or in a court of law is to be taken as the relevant date for consideration of his right to be revoked from suspension and not any action after his application and during the period the application remained pending with the respondents, otherwise, it is always possible that after the delinquent files an application for revocation of his suspension before the authorities or before this Court, the authorities may take corrective measures by issuing charge-sheet or renewing suspension order and thus may frustrate the claim of the petitioner to get his right of being revoked from suspension in terms of Rule 9(7) of the Rules. Clearly, this could never be the intention of tile Legislature, which is clearly reflect d from the above observations of the Full Bench, as quoted above. 10. In the circumstances, this Writ application is allowed. Clearly, this could never be the intention of tile Legislature, which is clearly reflect d from the above observations of the Full Bench, as quoted above. 10. In the circumstances, this Writ application is allowed. Respondents are directed to consider the suspension of the petitioner as revoked with effect from 10.11.2009 the date on which he filed application for the purpose before the competent authority.