Ramadhar Ram vs The State of Bihar and Others

Mihir Kumar Jha, J.—Heard learned counsel for the parties.

The petitioner in this writ application has prayed for the following relief:--

"to quash the order containing in Memo No. 358 dated 16.07.2013 issued under the signature of the Joint Secretary to the Government on the order of the Governor of the State whereby the petitioner has been placed under suspension on the information given by the I.G. Economic about lodgment of the criminal case (F.I.R) against the petitioner as also to quash the resolution containing in Memo No. 557 dated 06.12.2013 by which departmental proceeding has been initiated framing Memo of Charge in Praptra ''Ka'' on the same date and appointing the Conducting Officer as also the presenting officer acting/violating the rules prescribed under CCA Rules 2005 as also to quash the Memo of Charge in Performa ''Ka'' and for issuance of a consequential writ in the nature of mandamus directing and commanding the respondents to invoke the suspension of the petitioner and accept the joining submitted on 03.12.2013 and make posting of the petitioner as also to not proceed further in the departmental proceeding."

Mr. Bishnu Kant Dubey, in support of the aforementioned prayer while assailing the two impugned orders dated 16.07.2013, and the resolution dated 06.12.2013, has basically concentrated on the aspect that continued suspension of the petitioner is bad primarily on the ground that the memo of charge was framed after a period of three months as prescribed under Rule-9(7) of Bihar Government Servant (Classification Control and Appeal Rules) 2005 (hereinafter referred to as the 2005 Rules) and such memo of charge did not meet the requirement of Rule-17 of the aforesaid 2005 Rules. In this regard, strong reliance has been placed on the judgment of the Apex Court in the case of Ajay Kumar Choudhary Vs. Union of India (UOI) and Others .

Per contra, learned counsel for the State, Mr. Ashok Kumar Keshri learned AAG-11 and Mr. Vishwa Nath Prasad Singh, learned senior counsel for Economic Offence Unit, while supporting the impugned order of suspension and the consequential memo of charge have sought to distinguish not only the aforementioned judgment of the Apex Court in the case of Ajay Kumar Chaudhary (supra) by referring to the specific provisions of 2005 Rules, but have also taken a categorical stand that in the present case, suspension of the petitioner was not in contemplation of departmental proceeding rather the same was in view of pending criminal case against the petitioner and as such the embargo of the period of three months of framing the charges under Rule 9(7) of the 2005 Rules, shall not be applicable.

In order to consider the aforementioned submissions, only few relevant facts has to be taken into consideration. The petitioner holding the post of Executive Engineer in Public Health & Engineering Department (PHED), was made accused in a criminal case being Patna Economic Offence P.S. Case No. 22 of 2013 (Special Case No. 18 of 2013), when an FIR dated 18.06.2013, was lodged against the petitioner stating that in course of employment of the petitioner in the State of Bihar in PHED, he had acquired disproportionate assets of Rs. 53,93,700/- and as such had committed offence punishable under Section 13(2) read with Section 13(1)(e) of Prevention of Corruption Act. This Court is not required to go into the merits of the criminal case or the allegation of disproportionate asset being faced therein but then that would remain the fact that during the pendency of this criminal case, the petitioner was placed under suspension by an order dated 16.07.2013, passed by the State Government in terms of Rule-9(1)(c) of 2005 Rules, which exclusively vests power in the State Government and/or the appointing authority to place a Government servant under suspension during the pendency of the investigation, inquiry or trial of a criminal case.

Subsequently, by order dated 29.07.2013, the headquarter of the petitioner for the period of suspension was fixed in the office of the Chief Engineer, PHED, Muzaffarpur with a clear direction that the petitioner during the period of suspension shall be entitled for payment of subsistence allowance in terms of Rule-10 of 2005 Rules.

It is the case of the petitioner that on 03.12.2013, he had filed an application in terms of Rule-9(7) of the Act stating that the departmental proceeding having been not initiated by way of framing of charge within a period of three months, his order of suspension has already come to an end in terms of Rule 9(7) of 2005 Rules and as such he should be allowed to rejoin his post and start functioning. The petitioner has sought to explain that only after giving such notice by him on 03.12.2013, he was served with a resolution dated 06.12.2013, containing the memo of charge which was exactly for the same allegation for which the aforesaid criminal case against him have been filed.

On the other hand, the respondent State of Bihar and the respondent authority of the Economic Offence Unit have filed their counter affidavit to explain that the order of suspension of the petitioner being exclusively in connection with criminal case, so called delay of more than three months in initiating the departmental proceeding, will not vitiate the order of suspension. In this regard, the respondent-officials of the State of Bihar have also sought to explain that the issue relating to framing of charge against the petitioner, after the order of suspension was already under consideration before the competent authority on 27.11.2013, and the approval of the competent authority having been given on 27.11.2013, since the file had returned back on 05.12.2013, the memo of charge was issued on 06.12.2013, which according to them was prior to the so called application filed by the petitioner on 03.12.2013, invoking the provision of Rule 9(7) of 2005 Rules.

In the counter affidavit, that has been filed by the respondent No. 5 on behalf of the Economic Offences Unit, Patna, it has been stated that on secret information received about the petitioner of acquiring disproportionate assets other than his known source of income, an inquiry was carried out and after finding prima facie materials to show that the petitioner had acquired disproportionate assets to the tune of Rs. 53,93,700/-, the said criminal case was lodged against him and the Economic Offences Unit, Patna is not required to disclose the source of knowledge of such information. As with regard to the departmental proceeding, the respondent No. 5, has taken a stand that it has got little to do with such departmental proceeding which was initiated by the State Government. Based on the aforementioned relevant facts, the first and in fact the foremost crucial question would be as to whether the order of suspension of the petitioner dated 11.07.2013, had become vulnerable in terms of Rule-9 (7) of the 2005 Rules, on expiry of period of three months, on account of non framing of the charges initiating departmental proceeding against the petitioner.

Rule 9(1) of 2005 Rules vests the Government and/or the appointing authority the power of suspension, which reads as follows:--

"9. 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. "

As would be evident, Rule-9(1)(a) of the 2005 Rules, envisages suspension of a Government servant either in contemplation or during the pendency of the departmental proceeding, which of course begins with the framing of charge. As against Rule 9(1)(a), there is a separate provision under Rule 9(c) of 2005 Rules, wherein, the Government servant can be placed under suspension, in the event of any criminal case being under investigation, inquiry or trial against him. The two provisions of suspension are wholly independent and cannot be mixed with each other. It is this aspect of the matter which becomes more clear from the reading of Rule 9(7) of 2005 Rules, which reads as follows:--

"(7) Charge-sheet must be framed within three months from the date of issue of suspension order failing which on expiry of three months, the suspension order shall be revoked unless the authority, which issued the suspension order, passes the order renewing the suspension alongwith reasons to be recorded in writing for the delay in framing of charge-sheet for a further period of four months:

Provided that after the expiry of extended period of four months the suspension order shall stand revoked if the charge-sheet is not framed."

From the wording of Rule-9(7) of 2005 Rules, it is very very clear that the embargo of the period of three months of framing of the charges and the order of suspension becoming bad, on the expiry of period of three months, is in relation to order of suspension which has been passed in terms of Rule-9(1)(c) of the 2005 Rules. As a matter of fact, there is no compulsion for the Government to initiate a departmental proceeding against a person placed under suspension under Rule 9(1)(c) of 2005 Rules and therefore, if the memo of charge in respect of such person who has been placed under suspension, on account of pendency of criminal case, after three months of his order of suspension that will not become bad, inasmuch as, Rule 9(6) clearly lays down that an order of suspension shall continue to remain in force until it is modified or revoked by the competent authority. This would become more clear from the reading of Rule 9(6), which for the sake of clarity and convenience is quoted herein below:--

"(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 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 of 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."

As would be evident, from reading of Rule 9(6)(a) read with Rule 9(6)(b), there is no bar that if the person has been placed under suspension on the ground of pendency of the criminal case, a disciplinary proceeding cannot be initiated and therefore, having regard to the provision of Rule 9(1)(c) read with 9(6)(b), this Court is of the conclusive opinion that the embargo of suspension order becoming bad on expiry of period of three months in the event of charges being not framed will not be vitiated in the case of Government servant, who has been placed under suspension pending criminal case.

There is and in fact cannot be any dispute on the said question of fact that the order of suspension of the petitioner was in terms of Rule 9(1)(c) of the 2005 Rules, inasmuch as, the impugned order of suspension dated 16.07.2013, reads as follows:--

This Court in holding that an order of suspension under Rule 9(1)(c) of 2005 Rules was not be vitiated or be subjected to automatic revocation of suspension on the expiry of period of three months or non framing of charge in that period in terms of Rule 9(7) of the 2005 Rules is supported by a judgment of the Full Bench of this Court in the case of The State of Bihar and Others Vs. Gyan Kumar Ram, , wherein, after discussing the provisions and the law, the Full Bench had arrived at the following conclusion:--

"In view of the above analysis, our conclusions are as follows:--

(a) The time frame contemplated in Rule 9(7) is applicable only when an order of suspension is passed in contemplation of a disciplinary proceeding. On the other hand, if order of suspension is passed by taking into account the other eventualities contemplated in Rule 9, the time frame is not applicable and the order of suspension continues until it is revoked or deemed to be revoked under any of the provisions.

(b) Where an order of suspension is passed in contemplation of a disciplinary proceeding, the charge-sheet is required to be filed within a period of three months from the date of issuance of such order. On failure to frame charge-sheet within the stipulated period, the concerned employee gets a right to claim that he should be reinstated in service and if any such application is filed, the order of suspension is bound to be revoked.

(c) Where the employee fails to exercise such right of being reinstated by making necessary application, there is no embargo for the competent authority to pass any order extending the suspension for reasons to be recorded in writing and there is no requirement that such an order is bound to be passed before the expiry of three months and in a given case, such an order is passed even after the expiry of three months, provided the employee in the meantime has not exercised his right of being reinstated.

(d) Similarly the right of the employee to get reinstated is defeated if before he makes an appropriate application the charge-sheet if framed.

(e) Where the competent authority passes an order renewing the suspension, charge-sheet is required to be framed within such further extended period which cannot be more than four months from the date of expiry of the original three months and if no charge-sheet is framed, the order of suspension stands revoked even without passing of any formal order. At that stage, of course, the authority is required to pass appropriate order of re-posting and at any rate, the concerned employee would be entitled to get full salary."

(underlining for emphasis)

As a matter of fact, it is the underlined portion of paragraph No. 20(a) of the aforementioned judgment of the Full Bench in the case of Gyan Kumar (supra), which will squarely cover the facts of the present case and therefore, the order of suspension of the petitioner cannot be said to have become bad on expiry of period of three months.

Be that as it may, this Court on perusal of the materials on record specially the seriousness of charges being faced by the petitioner in the criminal case is satisfied that invoking power under Rule 9(1)(c) for placing the petitioner under suspension does not suffer from any error specially when the matter has been considered by the State Government at the highest level as has been stated and asserted by the respondent Nos. 2 to 4 in the counter affidavit.

The overemphasized reliance on a recent judgment of the Apex Court in the case of Ajay Kumar Chaudhary (supra) by Mr. Bishnu Kant Dubey, learned counsel for the petitioner, seems to be wholly misplaced. From the reading of the facts of that case, firstly, it becomes clear that the general observations made in paragraph No. 14, shall not be applicable to the facts of the present case, inasmuch as, from the fact of the case of Ajay Kumar Chaudhary (supra), he was placed under suspension in contemplation of departmental proceeding while the investigation of the C.B.I., was still continuing in the criminal case. As a matter of fact, the order of suspension of Ajay Kumar Chaudhary, was not on the ground of criminal case and the departmental proceeding, in his case, could not commence because of some prohibition of the C.B.I., while conducting the investigation of the criminal case lodged against him. Thus, not only the provision of 2005 Rules under which Ajay Kumar Chaudhary, was governed but the facts being wholly distinguishable, this Court does not find any applicability of the judgment and the ratio including the general observations made in paragraph No. 14 of the judgment in the case of Ajay Kumar Chaudhary (supra).

This Court would fail in its duty, if it does not notice yet another ancillary submission of Mr. Dubey, that the order of suspension of the petitioner does not even fulfil the ingredient of Rule 9(1)(c), inasmuch as, the satisfaction of the State Government that it was expedient to suspend Government servant in public interest has not been recorded. For this purpose, he has placed reliance on an unreported judgment of this court dated 18.11.2014 in C.W.J.C No. 23939 of 2013 (Nageshwar Sharma v. State of Bihar & Ors).

This Court, however, does not also find any merit in the aforesaid submission, inasmuch as, from the wording of the impugned order, which has already been quoted above, it would be very clear that there was a satisfaction recorded as with regard to the necessity of passing the impugned order of suspension, on account of pendency of the criminal case. Such satisfaction based on the report of the prosecuting agency namely Economic Offences Unit, Patna, has to be always subjective, and no magic formula can be evolved if the word public interest is not used in the order of suspension.

The authorities have found pendency of the criminal case against the petitioner in which he was facing a serious allegation of amassing disproportionate wealth of more than Rs. 53, 93,700/- to his known source of income and therefore, if the respondents have also in the counter affidavit gone to explain that on receipt of the report of the Economic Offences Unit, Patna, as has been spelt out in paragraph Nos. 5, 6 and 7 of the counter affidavit filed on behalf of respondent No. 2 to 4 had also not been controverted, this Court would find it difficult to have any applicability of the reasoning and the order passed in the case of Nageshwar Sharma (supra).

As a matter of fact, paragraph Nos. 5, 6 and 7 of the counter affidavit in this regard reads as follows:--

"That, the petitioner has been suspended in exercise of power conferred upon the competent authority under Rule 9(1)(c) CCA Rules 2005 vide order dated 16.07.2013 after following proper procedure and approval on receiving information about institution of a criminal case vide Economic Offences P.S. Case No. 22 of 2013 under the provisions of Prevention of Corruption Act.

That, it is humbly submitted that the impugned order of suspension has been passed in accordance with the statutory provision after satisfaction of the competent authority where it was felt expedient to suspend the petitioner in the light of a corruption case having been instituted for owing more assets than the known sources of income and such an allegation is serious in nature having prejudicial impact for other employee and public at large.

That, it is further submitted that the order of suspension has been passed after taking approval from the competent authority in Government through proper channel and the said approval was granted on 11.07.2013 and subsequently the impugned order has been passed."

From the reading of the judgment of Nageshwar Sharma (supra), it would also appear that the said order was passed on account of the counter affidavit having no averment and that after receiving the information regarding institution of criminal case, there was any conscious application of mind to the gravity of charges. Here the facts of the case and the pleadings will become material specially when the aforesaid averments made in paragraph Nos. 5, 6 and 7 of the counter affidavit, has also not been controverted by the petitioner himself, by filing any reply, despite service of copy of such counter affidavit on learned counsel for the petitioner on 29.01.2015.

The main question having been answered against the petitioner, this Court also does not find any merit in the remaining submission that the memo of charge against the petitioner was in violation of Rule 17(2)(3) of 2005 Rules, which more or less are for the purposes of satisfaction of the disciplinary authority for initiating a departmental proceeding. Here, in the present case, such satisfaction has been clearly recorded in the impugned resolution dated 06.12.2013, which reads as follows:--

This Court in fact does not find any merit in the submission of Mr. Dubey as with regard to the memo of charge being vitiated on account of there being no proper satisfaction of the Government in framing of such charge, as a matter of fact not only such satisfaction has been expressed but suggested line of Mr. Dubey that in every case the Government is bound first of holding a preliminary inquiry and ascertain facts by way of verification before framing of charge, is also actually not contemplated or envisaged inasmuch as Rule 17 has to be read as a whole. The whole intent of Rule 17 seems to be procedure to be taken in departmental proceeding and take step wise action in relation to holding the departmental proceeding against a Government Servant for inflicting major punishment, as is clearly distinguishable from Rule 19 laying down the procedure for inflicting minor punishment.

Thus, for the reasons indicated above, this Court does not find any merit in this application and it is, accordingly, dismissed.

Before parting with, this Court however must direct the Departmental Enquiry Commissioner to ensure that the departmental inquiry so initiated against the petitioner must be conducted on an expeditious manner and if the petitioner co-operates, the inquiry report of the Government also must be submitted by him within a maximum period of six months from the date of receipt of this order. If the petitioner does not co-operate in the departmental proceeding, it would be open for the Departmental Enquiry Commissioner to direct the Presenting Officer to produce evidence on behalf of department and hold ex parte proceeding and submit his inquiry report. The disciplinary authority on receipt of the inquiry report of the Departmental Enquiry Commissioner also must pass his final order either exonerating or inflicting punishment on the petitioner, within a maximum period of four months, from the date of service of the inquiry report on the petitioner.

Let a copy of this order be accordingly, sent both to the Principal Secretary of the Public Health and Engineering Department as also to the Departmental Enquiry Commissioner for its compliance in letter and spirit.

As the prosecuting agency in the criminal case is also represented in this case, this Court must observe that it would augur well for the officials of the Economic Offences Unit to ensure that the pending criminal case against the petitioner is also expedited and in the event such prayer is made on behalf of the prosecuting agency before the trial Court in seisin with the aforesaid criminal case being Patna Economic Offence P.S. Case No. 22 of 2013 (Special Case No. 18 of 2013), before Special Judge, Vigilance, North Muzaffarpur, all endeavours should be made by the trial Court to conclude the trial within a maximum period of one year from the date of receipt/production of a copy of this order by any of the two parties to this writ application.

Let a copy of this order in fact be also sent to the Special Judge, Vigilance, North Muzaffarpur as well as to Inspector General of Police, Economic Offence Unit, Patna for its compliance by them as well in letter and spirit.