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2015 DIGILAW 1545 (JHR)

Vinod Kumar v. State of Jharkhand

2015-12-10

APARESH KUMAR SINGH

body2015
Order : Heard learned counsel for the parties. 2. Initially petitioner was placed under suspension vide order dated 15.07.2015 bearing memo no. 6910 issued by the Department of Personnel, Administrative Reforms & Rajbhasha, Government of Jharkhand on his arrest in connection with a Vigilance P. S. Case No. 34 of 2014 while he was posted as District Transport Officer, Hazaribagh (Jharkhand Administrative Service). The instant order was passed under the provisions of Rule 49 (A)(2)(a) of the Civil Services (Classification, Control and Appeal), Rule, 1930 with effect from 26.03.2015 i.e. the day on which he was taken in custody. Petitioner was released from custody on 18.06.2015, however by another impugned order bearing no. 6915 dated 31.07.2015 passed in exercise of power under Rule 49 (A)(1)(a) & (b) of 1930 Rules, the respondent-Department continued his suspension from the date of his release till further orders. Petitioner would be paid subsistence allowance with his headquarters at the office of Divisional Commissioner, North Chhotanagpur Division, Hazaribagh. 3. The impugned orders of suspension have been assailed by the petitioner mainly on the ground that no departmental proceeding has been initiated against him till date though suspension has continued for more than 90 days. Example of few persons have been cited such as one Sanjay Kumar of the Jharkhand Administrative Service, the then Block Development Officer, Bishrampur, Palamau and one Vinod Kumar Jha also from the same service in the capacity of then Deputy Secretary, Water Resources Department, who were also implicated in vigilance case on grounds of taking bribe but were released from suspension after they were out of judicial custody on being granted bail. Orders of revocation of suspension in the case of these two persons are enclosed as Annexure-4 series dated 04.04.2014 and 21.04.2014 issued by the same Department of Personnel, Administrative Reforms & Rajbhasha, Government of Jharkhand. 4. Learned counsel for the petitioner has relied upon the judgment rendered by the learned Single Judge of this Court in the case of Satya Narayan Lakra Vs. State of Jharkhand & Ors reported in 2008 (3) JLJR 349 . He has also placed reliance upon the recent judgment of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India through its Secretary and Another reported in (2015) 7 SCC 291 . State of Jharkhand & Ors reported in 2008 (3) JLJR 349 . He has also placed reliance upon the recent judgment of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India through its Secretary and Another reported in (2015) 7 SCC 291 . Learned counsel for the petitioner submits that if no memorandum of charges or charge sheet has been served upon the delinquent employee within a period of three months during the period of suspension, there is no reason why the suspension order should continue. It is further submitted that more than four months have elapsed since the issuance of the original suspension order and its continuation, but the department has neither passed any reasoned order for extension of suspension of the petitioner nor revoked the same, though no departmental proceeding has been initiated, nor memorandum of charges have been issued upon him. 5. Learned counsel for the State has referred to the averments made in the counter affidavit and taken this Court to the seriousness of the allegation made against the petitioner. It is submitted that in the matter of taking bribe through one Suraj Singh while petitioner was posted as District Transport Officer, Hazaribagh. Vigilance Bureau had arrested the said Suraj Singh and had lodged a criminal case being Vigilance P. S. Case No. 34 of 2014 on 10.11.2014. Petitioner was arrested on 26.03.2015 and remained in custody for quite some time till he was released on 15.06.2015 on being granted bail. It is submitted that impugned first order of suspension was issued under the relevant provisions of Rule 49 of 1930 Rules on account of his incarceration in judicial custody and would be a case of deemed suspension. Since the petitioner is facing criminal charges, under the provisions of Rule 49(A) (1)(b), the respondent-Department has considered it proper to continue his suspension even after being released on account of the gravity and seriousness of charges. It is submitted that the department has requested the Deputy Commissioner, Hazaribagh through letter no. 26 dated 02.01.2015 to send memo of charges against him in Form-K and the Vigilance Bureau has also been requested to send the proposal for sanctioning prosecution. 6. I have considered the submissions of the parties and gone through the relevant materials on record. It is submitted that the department has requested the Deputy Commissioner, Hazaribagh through letter no. 26 dated 02.01.2015 to send memo of charges against him in Form-K and the Vigilance Bureau has also been requested to send the proposal for sanctioning prosecution. 6. I have considered the submissions of the parties and gone through the relevant materials on record. The original order of suspension of the petitioner is based on his incarceration in judicial custody on account of being implicated in Vigilance P. S. Case No. 34 of 2014, which is permissible under the provisions of Rule 49 (A) (2)(a). The respondent-Department has, however, chosen to continue his suspension even after his release on account of criminal case pending against him in which admittedly charge sheet has been filed. It is, however also evident that the impugned order of suspension has not contemplated any departmental proceeding against him nor any memorandum of charges has been served upon him in any departmental enquiry. In this regard reliance has been placed by the learned counsel for the petitioner at para-21 of the judgment rendered by the Apex Court in the case of Ajay Kumar Choudhary (Supra) as also in the case of Satya Narayan Lakra (Supra). The opinion of the Hon'ble Supreme Court contained in para-21 of the report is quoted hereunder:- “21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the instigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.” 7. The Hon'ble Supreme Court has held that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. In the said case as it appears, the investigation had been completed and sanction for prosecution has been granted. The Hon'ble Court while referring to the factual matrix of the case had observed at para-5 of the Report that earlier when the arguments were heard in great detail on 09.09.2014, neither a charge sheet nor a memorandum of charges had been served on the appellant. It further appears from the reading of para-6 that before fourth extension was granted i.e. on 12.09.2014, sanction for prosecution was granted on 01.08.2014. The respondent-Union of India through their learned counsel had submitted that charge sheet was expected to be served on the appellant before 12.09.2014. The Hon'ble Court taking into account the relevant factual matrix of the case, however, proceeded to underscore that the appellant had been continuously under suspension from 30.09.2011. At para-22 of the instant report, it has also been observed that so far as the present case was concerned, the appellant has now been served with a charge-sheet, therefore, directions issued by the Apex Court in the preceding paragraphs may not be relevant to him any longer. He may, however, challenge his suspension in any manner known to law. At para-22 of the instant report, it has also been observed that so far as the present case was concerned, the appellant has now been served with a charge-sheet, therefore, directions issued by the Apex Court in the preceding paragraphs may not be relevant to him any longer. He may, however, challenge his suspension in any manner known to law. From the reading of the entire judgment along with para-21, it is apparent that suspension order should not extend beyond three months if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer/employee. It refers to both memorandum of charges in a departmental proceeding and a charge sheet in a criminal case. 8. In the case of Satya Narayan Lakra (Supra) relied upon by the petitioner, it appears that no charge-sheet had been served upon him and the order of suspension had continued for more than four months from the date of its issuance. It further appears that the said person was not involved in any criminal case. In the case of Ajay Kumar Choudhary (Supra), the Apex Court has dealt with the instances where the suspension order should not continue beyond 90 days if within this period, the memorandum of charges / charge sheet is not served on the delinquent officer / employee. The judgment rendered by the Apex court being the law of the land, would therefore apply in the factual matrix of the present case. 9. Learned counsel for the petitioner had also relied upon the provisions of Rule 49(A)(5)(b) to submit that petitioner was already under suspension and no departmental proceeding had been commenced against him during that period. Therefore, respondent could not have continued the suspension of the petitioner by virtue of 2nd order dated 31.07.2015. 10. 9. Learned counsel for the petitioner had also relied upon the provisions of Rule 49(A)(5)(b) to submit that petitioner was already under suspension and no departmental proceeding had been commenced against him during that period. Therefore, respondent could not have continued the suspension of the petitioner by virtue of 2nd order dated 31.07.2015. 10. Upon consideration of the aforesaid submissions and the reading of the entire Rule of 49 (A) of Rules, 1930, which conceives of power of the appointing authority to place a Government Servant under suspension in both situations (a) where the departmental proceeding against him is contemplated or pending or (b) where a case against him in respect of criminal offence is under investigation, enquiry or trial, this Court is of the opinion that the Appointing Authority was well within its power to issue the 2nd order of suspension of the petitioner on account of criminal charges levelled against him on his implication in the Vigilance Case. 11. In the background of the factual matrix of the case as considered in the light of the law laid down in the case of Ajay Kumar Choudhary (Supra), it is also to be taken note of that in cases when a memo of charges / charge-sheet is served, a reasoned order must be passed for the extension of suspension. In the instant case, undisputedly no departmental proceeding or memorandum of charges have been initiated or served upon the petitioner though he has been charge sheeted in the criminal case. The suspension of the petitioner has continued after the issuance of the suspension order dated 31.07.2015 for more than four months. Therefore, the respondents are required to take a decision on the question of extension of suspension of the petitioner by passing a reasoned order. 12. With the aforesaid observations, therefore, the writ petition is disposed of with the direction upon the respondent- Department to take a decision on the question of extension of suspension of the petitioner keeping into light/regard all relevant material facts and law on the point within a reasonable time preferably within a period of four weeks from the date of receipt of a copy of this order.