Pramod Prasad vs State of Jharkhand And Ors

Heard Mr. Rishikesh Giri, the learned counsel appearing on behalf of the petitioner and Mr. P.A.S. Pati, the learned counsel appearing on behalf of

the respondent State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard.

The petitioner has preferred this writ petition for quashing the order dated 12.05.2020 by which the petitioner has been put under suspension

contemplating the departmental proceeding. The prayer for revocation of the suspension of the petitioner is also made in view of the fact that the

suspension continued for more than three months and that too, without framing of the charge sheet.

The petitioner was initially appointed as an Officer of Bihar Sub-ordinate Education Service on 16.03.1991 and was promoted as Officer of the

Jharkhand Education Service, Class-II. The petitioner’s service was transferred from Area Officer, Angara to District Superintendent of

Education, Sahebganj vide order dated 04.09.2018. The petitioner joined the said post on 29.09.2018. The petitioner for the first time was appointed

and posted as District Superintendent of Education and the petitioner was discharging his duty, but some rift arose between the petitioner and the then

Deputy Commissioner on some of the issues and as a result of which, vague allegations were made by the Deputy Commissioner. The Deputy

Commissioner, Sahebganj put allegation against the petitioner and intimated the Secretary to initiate disciplinary proceeding against him. The petitioner

requested for supplying of the letter by which the allegation has been put against the petitioner by the Deputy Commissioner. It was alleged that due to

lethargic attitude of the petitioner in the Vishnu Kumar Das contempt case, the order was not complied in time, however, subsequently, the said

contempt proceeding was dropped. There are other allegations of non-compliance of the order of the Court. The petitioner was suspended vide order

dated 12.05.2020 on the aforesaid allegation. However, the order was passed for payment of subsistence allowance to the petitioner in terms of Rule

97 of Jharkhand Service Code.

Mr. Rishikesh Giri, the learned counsel appearing on behalf of the petitioner submits that before passing of the suspension order the authority

concerned has not applied the mind. He submits that suspension order is having the far reaching effect and the civil consequences on the prestige of

any employee. He submits that the relevant rules of Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016 has not been

followed. He submits that Rule 9(6)(b) clearly stipulates that for the reasons to be recorded by which in writing the suspension may continue. He

further submits that in view of Rule 9(6)(c), the authority has not passed any further order. However, the petitioner retired on 31.01.2021. He further

submits that now the charge sheet has been annexed by way of filing supplementary counter affidavit wherein the petitioner has been directed to

participate and defend his case in the departmental proceeding. He submits that after submitting the charge sheet now the suspension order has not

been revoked. He submits that once the order is there, and the order has not been recalled or revoked, it is deemed that the order is still there even

after the superannuation. He submits that more than three months have already been passed before his retirement and no order of extension of

suspension of the petitioner was passed and the petitioner retired in the meantime and the order of suspension is still there. He further submits that in

view of the vague allegation, the suspension was not required, however, only on the arbitrary action on behalf of the higher authority, the said

suspension order has been passed. He submits that on the fact that the petitioner has been suspended, he has already suffered ignominy of

insinuations, scorn of society and derision of his department even before he was charge sheeted. He refers to the case of “Ajay Kumar Choudhary

v. Union of Indiaâ€​ (2015) 7 SCC 291. Paragraph -21 of the said judgment is quoted hereinbelow:

“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 investigation 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. We recognise 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.â€​

He fairly submits that the departmental proceeding is there and the petitioner is ready to face the departmental proceeding and also to co-operate in

the departmental proceeding and in that view of the matter, the suspension order is illegal.

Per contra, Mr. P.A.S. Pati, the learned counsel appearing on behalf of the respondent State submits that the petitioner has already been allowed to

superannuate and in that view of the matter the effect of suspension order has got no force. He submits that the petitioner may appear in the

departmental proceeding and the said departmental proceeding will contemplate within a time frame period.

In the light of the above submissions and the facts, the Court has ventured to move to look into the documents annexed with the writ petition as well

as the counter affidavit and the supplementary counter affidavit. The supplementary counter affidavit has been filed on 25.01.2021 on behalf of the

respondent State wherein the charge sheet dated 21.02.2021 has been annexed. In the said charge sheet there is no averment to the effect as to what

will be the effect of the suspension order, however, the petitioner has been directed to participate in the departmental proceeding. Rule 9(6)(b) of

Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016 is very clear which stipulates that the reasons are required to be

recorded. Rule 9(6)(b) speaks of modification and revocation of the suspension order.

For the sake of brevity, Rules 9(6) (a), (b) and (c) of Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016 are

incorporated hereinbelow:

“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.â€​

Rule 9(6)(a) of the said Rules clearly speaks the order of suspension may or deemed to have been made in this rule was continued to remain in

force until it is modified or revoked by the authority competent. In the light of this rule, the contention of the learned counsel for the respondent State is

contrary to this rule. In terms of this rule, it appears that unless the suspension order is modified and revoked it will be deemed to be continued. It is

also well settled that suspension must be for a short duration, it has been considered by the Hon’ble Supreme Court in the case of “State of

T.N. v. Promod Kumarâ€​ (2018) 17 SCC 677 in paragraph nos.24, 25, 26 and 27, which are quoted hereinbelow:

“24. The first respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of

more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not

favour his reinstatement due to which he is still under suspension. Mr P. Chidambaram, learned Senior Counsel appearing for the first respondent

fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of

the State Government for continuing the first respondent under suspension pending criminal trial. There is no doubt that the allegations made against

the first respondent are serious in nature. However, the point is whether the continued suspension of the first respondent for a prolonged period is

justified.

The first respondent has been under suspension for more than six years. While releasing the first respondent on bail, liberty was given to the

investigating agency to approach the Court in case he indulged in tampering with the evidence. Admittedly, no complaint is made by CBI in that

regard. Even now the appellant has no case that there is any specific instance of any attempt by the first respondent to tamper with evidence.

In the minutes of the Review Committee meeting held on 27-6-2016, it was mentioned that the first respondent is capable of exerting pressure and

influencing witnesses and there is every likelihood of the first respondent misusing office if he is reinstated as Inspector General of Police. Only on the

basis of the minutes of the Review Committee meeting, the Principal Secretary, Home (SC) Department ordered extension of the period of suspension

for a further period of 180 days beyond 9-7-2016 vide order dated 6-7-2016.

This Court in Ajay Kumar Choudhary v. Union of India has frowned upon the practice of protracted suspension and held that suspension must

necessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the

first respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High

Court that the appellant State has the liberty to appoint the first respondent in a non-sensitive post.â€​

The petitioner has already been put under suspension for more than three months before his retirement and no revocation order or modification of

the suspension order has been passed by the competent authority therefore, the suspension order is still there. Now the charge sheet has been

submitted and in view of the charge sheet the authority was required to pass an appropriate order with regard to the suspension which has not been

done in the case in hand. The petitioner is ready to co-operate and participate in the departmental proceeding. The petitioner has already been

superannuated.

As a cumulative effect of the above discussions, the impugned order will not sustain in the eye of law. Accordingly, the impugned order dated

12.05.2020 is quashed. The petitioner shall co-operate in the departmental proceeding and will appear on the date fixed by the inquiry officer and it is

expected that the departmental proceeding shall be completed within a period of two months.

I.A., if any, also stands disposed of.