Damodar Mandal vs State of Bihar and Others

Hari Lal Agrawal and S. Shamsul Hasan, JJ.—The petitioner, who is the Executive Engineer of the Tirhut Canal Division, Gaudak Project, has filed this writ application challenging the order of his suspension dated 23-7-1981 contained in Annexure- 2. The order states of an occurrence which had taken place on 23rd July, 1981 in the steamer coming from Pahlezaghat to Mahendrughat (Patna) with respect to which a case was instituted with the Mabendrughat Railway Police.

Mr. Prabha Shankar Mishra, who appeared in support of this case, has contended that since only a case has been instituted with the police at the moment, it cannot be said that a criminal charge as envisaged in rule 100 of the Bihar Service Code is pending against the petitioner and therefore the petitioner could not be suspended. According to him the expression criminal charge in rule 100 of the Bihar Service Code must be read to mean as the charge framed by a court in a criminal proceeding.

If the argument of the learned Counsel has to be accepted then the position would come to this that until the police investigation is concluded or when an inquiry in a criminal proceeding initiated in any court of Law against any Government Servant reaches a stage of framing of charge, the delinquent Government Servant cannot be put under suspension. In our considered opinion this could not be the intention of the framar of rules as it was bound to cause serious prejudice in many ways, as the police investigation or any otter kind of inquiry may take a considerable time until the stage of framing of charge is reached and then the Government would be helpless particularly when the delinquent officer''s continuance in his office in the department may be considered extremely undesirable and he had to have to continue without any check on his activities. The argument that the expression framing charge is capable of only one meaning as contended by the learned Counsel is also fallacious. The word charge has been used in Sections 239 and 240(1)in Chapter IX of the Code of Criminal Procedure while in Section 239 the word charge is meant to mean the allegation preferred against an accused in Section 240, it means a charge framed in court. Taking this analogy the word ''charge'' in rule 100 has got to be given the same meaning as the word charge u/s 239 of the Code of Criminal Procedure. In common parlance the word charge is used in a sense of making allegation and without going into any detailed discussion we should refer Section 239 of the Code of Criminal Procedure itself which provides for discharging of an accused at a stage before the framing of the charge. It says where the Magistrate considers the charge "against the accused to be groundless he shall discharge the accused and record his reasons for so doing". The word charge here certainly has been used by the legislature to mean an allegation or accusation as the stage of framing of charge has not reached. The expression criminal charge is, therefore, in our opinion, has to be given a meaning which should carry out the intention of the authority as also the purpose for putting a delinquent Government Servant into suspsnsion, and not to put such a construction which would defeat its very purpose. On this well settled rule of interpretation we are unable to accept the first contention giving that interpretation or meaning to the expression criminal charge in rule 100. Reliance was also placed by Mr. Mishra on the case of N. Sundaram v. The State of Bihar and Ors. AI.R. 1977 Pat 344 but the ratio of that case is not applicable to this case.

Be that as it may, the position has now been also clarified by the Government by issuing two notifications, one dated 8th August, 1973 rule 49A has been inserted in the Service Code, dealing with the subject of suspension and it authorises the appointing authority or any authority to which a Government Servant is subordinate, to place him under suspension, inter alia, in the following circumstances

*** *** *** (b) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

In view of this notification the position has been put beyond all controversy and the Government has the authority to put any Government Servant under suspension against whom simply a criminal offence might be under investigation or inquiry. Similar provision was also inserted in the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules 1935 by notification of the same date It is thus obvious that the order of suspension of the petitioner was passed at a time when a criminal case was under investigation by the police against the petitioner. The order of suspension is entirely valid and cannot be interfered with. The application accordingly fails and is hereby dismissed.