Mithilesh Kumar vs The State of Bihar

Vijayendra Nath, J.—Heard Mr. Ashish Giri, the learned counsel appearing for the petitioner and learned Principal Additional Advocate General for the State-respondents.

The pleadings are complete and with the consent of the learned counsel for the parties this writ application is being heard and disposed of by this judgment and order.

Mr. Giri, the learned counsel for the petitioner has, at the out set, submitted that the prayer in this writ application is being confined to the extent of quashing the order dated 12.03.2013 (Annexure-1 to the writ application) by which the petitioner has been put under suspension in terms of Rule 9 (i)(c) of Bihar Government Servant (Classification, Control and Appeal) Rules 2005 (hereinafter in short, C.C.A. Rules, 2005).

The factual expos�, relevant for the determination of the issues arising in the present writ application, are that the petitioner is an Executive Engineer in Rural Works Department, Works Division, Gopalganj. The Economic Offence P.S. Case No. 06/13 has been instituted against the petitioner under Section 13(2) and 13(1)(e) of the Prevention of Corruption Act, 1988 alleging acquisition of asset disproportionate to his income and the information in that regard was given by the Superintendent, Economic Offence Wing by his letter dated 21.02.2013 (Annexure-A to the counter affidavit) to the respondent No. 2. By order dated 12.03.2013 (Annexure-1) the petitioner has been put under suspension in terms of Rule 9 (i)(c) of the CCA. Rules 2005. By subsequent resolution dated 06.06.2013 a departmental proceeding has also been initiated against the petitioner on the charges as mentioned in the chargesheet thereto.

The learned counsel for the petitioner has submitted that the order of suspension dated 12.03.2013 (Annexure-1) does not reflect the conscious application of mind by the authority and there is no mention that the said authority was satisfied regarding expediency of putting the petitioner under suspension in public interest. It has been canvassed that the power to suspend a government servant under Rule 9(i)(c) of the CCA. Rules, 2005 is circumscribed by the condition mentioned therein and can be exercised only after the fulfillment of that condition. It has been argued that the impugned order only mentions the fact of the institution of the economic offence case against the petitioner and displays the same as the sole basis for exercising the power of suspension against the petitioner under the aforesaid Rule 9(i) (c) and there is no indication in the order or from the materials on record regarding the required satisfaction of the authority before exercising the power to suspend the petitioner. The learned counsel has further submitted that the identical issue on similar facts has been determined by this Court by order dated 08.10.2014 in CWJC No. 8229/2014 and the suspension order has been quashed as there was nothing to show the satisfaction of the competent authority for putting the government servant under suspension in public interest.

Per contra, the learned Principal Additional Advocate General appearing for the State-respondents has submitted that in view of the admitted fact that the economic offence case has been lodged against the petitioner alleging acquisition of the asset disproportionate to his income, which fact has also been mentioned in the order of suspension, it was not necessary for the competent to expressly record his satisfaction in the order and the said order does not become illegal on that count. It has been propounded that the provision as contained in Rule 9(i) (c) of C.C.A. Rules, 2005 does not require the recording of the satisfaction in the order and in the present facts of the case, there shall be presumption that such satisfaction was there. The learned Principal A.A.G. has also posited that a departmental proceeding was under contemplation against the petitioner on the date when the order of suspension was passed, and has in fact been initiated soon thereafter and therefore also, even though Rule 9 (i) (a) has not been mentioned in the order of suspension, there is no impediment in upholding the order on that ground also. It has further been submitted that though in the order passed in CWJC No. 8229/14 by this Court, the judgment of Jharkhand High Court passed on 18.12.2012 in W.P. (S) No. 7375/12 (Ganauri Mistry Vs. The State of Jharkhand & Ors.) has been noticed and to some extent also relied but the law laid down by the Apex Court in the case of State of Haryana Vs. Hari Ram Yadav and others, which has been taken into notice in the judgment of Jharkhand High Court, has been ignored. Relying heavily on the pronouncement by the Apex Court in the case of Hari Ram Yadav (Supra), it has been submitted that the issue arising in this case requires determination by a Division Bench.

In view of the rivalized submissions of the parties, the legal nodus has arisen pertaining to the extent and scope of the exercise of power of suspension by a competent authority under Rule 9 (1) (c) of the C.C.A. Rules 2005. For ease of reference, the relevant part of Section 9 of C.C.A. Rules 2005 is reproduced:

Order of Suspension- (1) The appointing authority or any authority to which the appointing authority is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Government by general or special order, may place a government servant under suspension when-

(a) a disciplinary proceeding against the government servant is contemplated or is pending, or

(b) in the opinion of the authority aforesaid, the government servant has engaged himself or herself in activities prejudicial to the interest of the security of the State, or

(c) 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.

It is limpid from the above that Rule-9 has been structured in two parts. The first part recognizes the power of the competent authority to place a government servant under suspension. The second part consisting of three clauses, however, enumerates the circumstances and conditions under which a government servant can be placed under suspension. The Clause (a) envisages a situation where a disciplinary proceeding against the government servant is contemplated or is pending. The Clause (b) envisages a situation where in the opinion of the authority the government servant has engaged himself in activities prejudicial to the interest of the security of the State. The Clause (c) stipulates a situation where a criminal case against the government servant in respect of any criminal offence is under investigation, inquiry or trial is pending but for putting the said government servant under suspension on that basis, the satisfaction of the competent authority regarding the desirability of such suspension in public interest has been provided as a condition precedent. In juxtaposition, the Clause (a) does not require such satisfaction where a government servant can be placed under suspension in contemplation of or during the pendency of a departmental proceeding. The intendment of the statute is thus clearly perceptible that only the pendency of a criminal case against a government servant under investigation, inquiry or trial is by itself not sufficient to entail his suspension, and before putting such government servant under suspension, there must be conscious application of mind by the competent authority to the gravity of charges against the government servant leading to the satisfaction against his continuation on the post in public interest. It is, however, also evincible that Clause (c) does not require such satisfaction of the competent authority to be expressed in the order of suspension. The learned Principal A.A.G. is therefore right in his submission that the absence of mention of satisfaction in the order of suspension could not per se vitiate the same, and the decision of the Apex Court in Hari Ram Yadav (Supra) also supports this stand but the matter does not end here. It would be relevant at this juncture to notice the dictum of the Apex Court in Hari Ram Yadav (Supra) as follows:-

"...The law is well settled that in cases where the exercise of statutory power is subject to the fulfilment of a condition then the recital about the said condition having been fulfilled in the order raises a presumption about the fulfilment of the said condition, and the burden is on the person who challenges the validity of the order to show that the said condition was not fulfilled. In a case, where the order does not contain a recital about the condition being fulfilled, the burden to prove that the condition was fulfilled would be on the authority passing the order if the validity of the order is challenged on the ground that the said condition is not fulfilled. Reference, in this context, may be made to the decision of this Court in The Swadeshi Cotton Mills Co. Limited Vs. The State of U.P. and Others, where it has been observed :

"...The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made."

Reflecting on the issue in praesenti, the Apex Court in the case of State of Orissa Vs. Bimal Kumar Mohanty, has ruled as follows :

"...It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee..."

(emphasis supplied)

The perusal of the impugned order Annexure-1 exposits the institution of the criminal case against the petitioner as the only ground for his suspension. It is also evident from the records that the said criminal case has been instituted on 19.02.2013 and the impugned order of suspension has been passed on 12.03.2013. In paragraph- 3 and 4 of the counter affidavit it has been stated that after receiving the information by the office of the Economic Offence Unit, Bihar Patna regarding lodging of FIR (Economic Crime Police Case No. 06/13 dated 19.02.2013) against the petitioner regarding disproportionate asset and after considering the said fact the petitioner has been suspended in the light of Rule 9(1)(c) of the C.C.A. Rules 2005. It has been further stated that the departmental proceeding has been started against the petitioner on 06.06.2013. However, there is no statement that before passing the said order of suspension of the petitioner, the competent authority, after conscious application of mind to the facts and materials, reached to the satisfaction that it was expedient in the public interest to place the petitioner under suspension. In view of the dictum of the Apex Court in Hari Ram Yadav (Supra) also relied upon by the Learned Principal A.A.G., the burden was clearly on the respondents to establish that the condition envisaged in Clause (c) was fulfilled before the order of suspension was passed. Indisputably the competent authority has chosen to pass the order under Rule 9(i) (c) of the CCA. Rules, and therefore, this Court does not find substance in the submission on behalf of the respondents that the order of suspension in question may also be taken to have been passed under Rule 9(i) (a) as the departmental proceeding against the petitioner was under contemplation and has been initiated soon thereafter. Such a course is definitely not permissible when there is specific statutory rule governing the suspension of a government servant prescribing the circumstances, conditions and manner for exercise of the power of suspension. The another submission that the petitioner has not stated in the writ petitioner regarding the absence of satisfaction of the competent authority, is equally devoid of merit in view of the clear language of the provision of Rule 9(i) (c) and the reliance of the petitioner on the order of this Court in CWJC No. 8229/2014 (Arvind Kumar Singh Vs The State of Bihar) where also the present respondents were parties.

It has been accepted by the learned Principal A.A.G. that the identical issue on similar facts has been decided by this Court on 08.10.2014 in CWJC No. 8229/14 (Arvind Kumar Singh Vs The State of Bihar). The copy of the order passed in the said case has been produced before the Court by the learned counsel for the petitioner. From the perusal of the order it becomes transparent that after considering the provision contained in Rule 9(i) (c) of the CCA. Rules this Court has laid down as follows:

"...From plain reading of the Rule 9(1) (c) of the Rules, 2005, it is evident that in all the cases where a criminal case is pending the government servants are not required to be put under suspension. Rule 9(1) (c) of the Rules, 2005 does not mandate that a government servant be necessarily put under suspension on the ground of pendency of criminal case against him. It only contemplates that in case of pendency of criminal case either under investigation or inquiry or trial, a government servant can be put under suspension, by the competent authority, if he/she is satisfied that suspension of such government servant is expedient in the public interest. This aspect of the matter is completely missing from the impugned notification..."

The similar view, after taking into consideration the decisions of the Apex Court and other High Courts, has been expressed in the judgment in W.P.(S) No. 7375 of 2012 (Ganauri Mistry Vs The State of Jharkhand) by the Jharkhand High Court which has been also referred and relied in the aforesaid order of this Court. After considering the facts and circumstances of the present case and the aforementioned decisions, this Court is not persuaded to take a different view in the matter and accept the submission by the learned Principal A.A.G. to refer the matter to a Division Bench.

Aligning with the order passed in Arvind Kumar Singh (Supra), this writ application is allowed and the impugned order dated 12.03.2013 (Annexure-1) putting the petitioner under suspension is quashed. However, this order shall not preclude the respondents to pass a fresh order of suspension against the petitioner strictly in accordance with law. The parties are left to bear their own cost.