Amresh Kumar Jha vs State Of Jharkhand

Shree Chandrashekhar, J

Initially, the petitioner came to this Court challenging order dated 05.10.2016 by which he was placed under suspension.

During the pendency of the writ petition another order of suspension dated 18.11.2016 was passed, for challenging which the petitioner filed I.A.

No. 432 of 2017 which was allowed by an order dated 18.01.2017. Thus, orders dated 05.10.2016 and 18.11.2016, both are under challenge in the

present proceeding.

Briefly stated, on 17.09.2016 the petitioner was taken into custody in connection with Koderma P.S. Case No. 160 of 2011 which was registered

for offences under Section 409/420 I.P.C. He was released on bail on 28.09.2016. He asserts that he reported for joining duty on 29.09.2016 and by

letter dated 03.10.2016 the Director, Soil Conservation forwarded his letter to the Secretary, Agriculture, Animal Husbandry and CoÂoperative

Department. A formal order of suspension was issued on 05.10.2016 placing the petitioner under suspension with effect from 17.09.2016 under Rule

9(2)(a) of Jharkhand Government Servants (Classification, Control and Appeal) Rules, 2016 (hereinafter referred as 2016 Rules) read with Rule 99 of

Jharkhand Service Code, 2001. As noticed above, subsequently, order dated 18.11.2016 has been issued under Rule 9(6)(a) & (b) of 2016 Rules read

with Rule 100 of Jharkhand Service Code, 2001.

Referring to Rule 9(3)(ii) of 2016 Rules, Mr. Rajiv Ranjan, the learned Senior counsel for the petitioner submits that without issuing a formal order

accepting the joining of the petitioner, order dated 18.11.2016 under Rule 9(6)(a) & (b) cannot be passed. It is contended that once the petitioner was

released from judicial custody his deemed suspension shall be deemed to have ended, when the petitioner reported for joining on 29.09.2016 and the

matter was brought to the notice of the Secretary by the Director, Soil Conservation by letter dated 03.10.2016. It is further contended that denial of

subsistence allowance during the period of suspension violates the statutory right of the petitioner and on the pretext of registration of a criminal case

an employee cannot be put under suspension for an indefinite period. The learned Senior counsel for the petitioner has relied on the decisions in; (i)

“Ajay Kumar Choudhary Vs. Union of India through its Secretary and Another†reported in (2015) 7 SCC 291, (ii) “Anwarun Nisha Khatoon

Vs. State of Bihar and Others†reported in (2002) 6 SCC 703, and (iii) “K. Sukhendar Reddy Vs. State of A.P. and Another†reported in (1999)

6 SCC 257.

In the counterÂaffidavit, the respondents have pleaded that after the petitioner was transferred from Koderma to Seraikela as SubÂdivisional

Agriculture Officer he did not hand over charge of District Agriculture Officer (he was made inÂcharge DAO) to the new incumbent namely,

Kalipad Mahto till 14.10.2009. The petitioner was to supervise work of construction of Tropical Polly Houses under the National Agriculture

Development Project, for which he selected one M/s Gantech Farms for construction of Polly Houses. The petitioner released 95% of the estimated

cost to the said farm and made advance payment after his transfer order was issued on 30.09.2009 and even after handing over charge he made

payment to the said firm by signing a cheque on 22.10.2009. After an enquiry into construction by M/s Gantech Farm, when illegalities were detected

a criminal case was registered vide Koderma P.S. No. 160 of 2011 against the petitioner. It is pleaded that by resolution dated 18.05.2016 the

competent authority has decided to initiate a departmental proceeding against the petitioner for irregularities committed under different plans during

2005Â​06 to 2008Â​09.

Mr. Shadab Bin Haque, the learned State counsel supporting the impugned order dated 18.11.2016, submits that order dated 05.10.2016 has been

passed in exercise of power under Rule 9(2)(a) of 2016 Rules read with Rule 99 of Jharkhand Service Code, 2001 whereas, order dated 18.11.2016

has been passed in exercise of powers conferred under Rule 9(6)(a) & (b) of 2016 Rules read with Rule 100 of Jharkhand Service Code, 2001, which

is a separate provision, invoked in a different situation. It is submitted that under Rule 9(6)(b) a Government Servant, who is under suspension during

the continuance of that suspension, can be continued under suspension and Rule 100 of the Service Code also confers a similar power on the

competent authority.

Rule 9(2) and 9 (3) and 9 (6) of 2016 Rules are extracted below:

Rule 9(2): A Government Servant shall be deemed to have been placed under suspension by an order of Appointing Authority with effect from the

following date:Â​

(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 compulsorily 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.

Rule 9(3): (i) After the custody period under sub rule (2), the period of deemed suspension shall be deemed to end when the Government Servant

gives his joining and the joining shall be accepted.

(ii) If a decision is taken to suspend the Government Servant again under subÂrule (1) (a) or (b) or (c) then such action may be taken only after

acceptance of joining and by issuing a separate order.

Rule 9(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 that the Government Servant shall continue to be under

suspension till the termination of all or any of such proceedings.

(c) An order of suspension made or deemed to have been made under this rule may, at any time, be modified or revoked by the same authority who or

whose subordinate authority has passed such order.

Rule 99 and 100 of Jharkhand Service Code, 2001 are extracted below:

Rule 99 : A servant of Government against whom proceedings have been taken either for his arrest for debt or on a criminal charge or who is

detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in

custody or is under going imprisonment, and not allowed to draw any pay and allowances (other than any subsistence grant that may be granted in

accordance with principles laid down in Rule 96) for such periods, until the termination of the proceedings taken against him or until he is released

from detention and allowed to rejoin his duties as the case may be. An adjustment of his allowances for such period should therefore, be made

according to the circumstances of the case, the full amount being given only in the event of the Government Servant being acquitted of blame or (if the

proceeding taken against him, were for his arrest for debt) of its being proved that the Government Servant's liability arose from circumstances

beyond his control or detention, being held by any competent authority to be unjustified.

Rule 100 : A Government Servant against whom a criminal charge or proceeding for arrest for debt is pending should also be placed under suspension

detained in custody or imprisoned (e.g while released on bail) if the charge made or proceeding taken against him is connected with his position as a

Government Servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and

allowances the provisions of Rule 99 shall apply.

Rule 99 of Jharkhand Service Code, 2001 contains an expression “until termination of the proceedings taken against him or until he is released

from detention and allowed to rejoin his dutiesâ€. Substantially, a similar provision has been incorporated under Rule 9(3)(i). The petitioner has

contended that he reported for duty on 29.09.2016 and the matter was reported to Secretary, by the Director, Soil Conservation, by letter dated

03.10.2016, a copy of which has been brought on record vide AnnexureÂ6. This letter is a mere communication that the petitioner was in judicial

custody between the period 17.09.2016 to 28.09.2016. Through this letter, letter dated 29.09.2016 written by the petitioner has merely been forwarded.

But, the fact remains that his joining has not been accepted by the competent authority. The reason for the same appears to be that, before a decision

on letter dated 03.10.2016 was taken, suspension order dated 05.10.2016 was issued and thereafter, the petitioner never reported at Headquarters at

Ranchi.

Provision of deemed suspension as contained in Rule 9(2)(a) of 2016 Rules and Rule 99 of Jharkhand Service Code, 2001 create a legal fiction. By

operation of this legal fiction an employee who has been arrested in connection with a criminal case would be deemed to be placed under suspension,

if the period of custody exceeds 48 hours. In such cases there is no requirement for issuing a formal order of suspension and after release from

custody the deemed suspension does not stand revoked automatically. Deemed suspension of a Government Servant continues till conditions under

Rule 9(3) is satisfied. Rule 9(3) speaks of deemed revocation of deemed suspension of an employee provided, two conditions are fulfilled; the

Government Servant has given his joining and his joining has been accepted. In the instant case, the second condition is missing. There is no order of

acceptance of joining duty of the petitioner issued by the competent authority.

These issues, however, appear to have been raised by the petitioner for challenging the subsequent order of suspension which was issued on

18.11.2016. This order has been issued in exercise of powers under Rule 9 (6)(a) & (b) of 2016 Rules and Rule 100 of the Jharkhand Service Code,

2001. Rule 100 of Jharkhand Service Code provides that a Government Servant, against whom a criminal charge is pending, should also be placed

under suspension if the charge made or proceeding taken against him is connected with his position as a Government Servant or is likely to embarrass

him in discharge of his duties. The charge against the petitioner is definitely connected to the position held by him. Rule 9(6)(b) permits the competent

authority to pass an order for continuance of suspension during the currency of an order of deemed suspension, on the ground of initiation of a

departmental proceeding. Order dated 18.11.2016 records the previous order of suspension of the petitioner. Clause 3 of order dated 18.11.2016

recites that the petitioner is again suspended under Rule 9(6)(a) & (b) of 2016 Rules and Rule 100 of Jharkhand Service Code, 2001.

Apparently, both the provisions operate in two different fields. Rule 9(2) comes into play when a Government Servant remains in judicial custody

for more than 48 hours and Rule 9(6)(b) is invoked during period of suspension, on the ground of initiation of departmental proceeding. On issuance of

order dated 18.11.2016, the effect of previous order dated 05.10.2016 has gone, as it stands revoked. There is no need for issuing a separate order

under Rule 9(6)(a). Moreover, the impugned order dated 18.11.2016 is under Rule 9(6)(a) & (b). Rule 9(6)(a) which has been invoked by the

competent authority confers power on the competent authority to modify or revoke the order of suspension passed under the Rules, which would

include an order passed under Rule 9(2)(a) also.

Now, in view of initiation of departmental proceeding against the petitioner vide resolution dated 18.05.2016, in which the petitioner has already

appeared, I am not inclined to interfere with order of suspension dated 18.11.2016. In so far as, payment of subsistence allowance to the petitioner is

concerned, the respondents have pleaded that during the period of suspension the petitioner was required to report at Headquarters, at Ranchi, where

he has failed to report. Accordingly, I decline to issue a direction to the respondents for payment of subsistence allowance to the petitioner, however,

if the petitioner reports at the Headquarters, at Ranchi he shall be paid subsistence allowance, in accordance with law.

Finding no merit in the writ petition, it is dismissed.

I.A. No. 1621 of 2017 for stay of suspension order dated 18.11.2016 stands dismissed.