Shailendra Kumar Kashyap vs The State of Bihar and Others

S.N. Jha and B.N.R Singh, JJ.—A short but significant question relating to duration of suspension under Rule 49A(2)(a) of the Civil Services (Classification, Control and Appeal) Rules, 1930 (for brevity, the Rules) arises for consideration in the case. The facts of the case briefly stated are as follows.

The Petitioner is a member of the Bihar Finance Service. During his tenure as Assistant Treasury Officer, Ranchi from 17.6.1993 he dealt with contingent bills from August, 1994. On 5.2.1996 he was placed under suspension under Rule 49A(1) of the Rules in contemplation of departmental proceeding on charges of abetting fraudulent withdrawals from the Government Treasury contributing to what has come to be known as fodder scam in the State of Bihar. Though the order indicated that the suspension was in contemplation of departmental proceeding, on 26.2.1998 i.e. 21 days after, he was dismissed from service under proviso to Article 311(2) of the Constitution of India. The dismissal was set aside by this Court on 29.10.1997 in CWJC No. 4235/96. The Court however directed the Petitioner to appear before the Commissioner of Commercial Taxes-com-Special Secretary, Department of Finance, with corresponding direction to the Commercial Taxes Commissioner to hand over charge memo in connection with the departmental proceeding to be held against the Petitioner. The Court clarified that the order will not prevent the Respondents from passing another order of suspension in accordance with law. Consequential order cancelling the order of suspension and dismissal was passed by the Commissioner of Commercial Taxes on 29.8.1998 and the Petitioner was posted as Assistant Commissioner of Commercial Taxes in the head office with effect from the date off suspension i.e. 5.2.1996. Pursuant to the said order the Petitioner submitted his joining on 3.9.1998. Earlier on 24.11.1997 the Petitioner had appeared before the Commissioner, Commercial Taxes, in the light of Court''s order dated 29.10.1997 (supra). With a request to hand over copy of the charge memo in connection with the proposed departmental proceeding.

In the meantime criminal cases Delating to the so called fodder scam had been instituted in four of which namely R.C. No. 24A/96, R.C. No. 32A/96, R.C. 43A/96 and R.C. No. 44A/96, he figured as an accused along with others. On 2000 the Petitioner surrendered in connection with those cases. On 30.1.2001 he was released on bail. After release, on 31.1.2001 he submitted his joining. While waiting for posting on 11.1.2002 he was placed under suspension with effect from 7.6.2000, the date of his remand in the aforementioned criminal cases, by the impugned order under Rule 49A(2)(a) of the Rules. The suspension having continued over a year without holding any departmental proceeding in the meantime, the Petitioner has approached this Court for quashing the impugned order dated 11.1.2002 and other consequential and incidental reliefs.

Shri Ganesh Prasad Singh, learned Counsel for the Petitioner, submitted that by order dated 29.10.1997 this Court had directed the Respondents to serve copy of charge memo and conclude the departmental proceeding. The Petitioner appeared before the Commissioner, Commercial Taxes in the light of the direction of lis Court but no charge memo was served; in stead, he was reinstated on the post on 29.8.1998. The Respondents were aware that criminal cases were pending against him nonetheless they reinstated the Petitioner and allowed him to join the post. Thus pendency of the criminal cases should not be a ground to pass another order of suspension. If that was so in 1996 or 1998, surely, in 2002 this could not be a ground for suspension. Counsel submitted that the only event which took place during this period was that the Petitioner remained in custody for certain period but that cannot be treated as a ground for continued suspension as the Petitioner had joined the post after his release on bail, functioned for about a year, received his salary etc. The State Government was well aware of these facts. Counsel referred to Annexure 7 purporting to be copy of the joining disclosed about the criminal cases and his release on bail. According to the Counsel, validity of the impugned order has to be considered in the above background.

Adverting to the impugned order of suspension Counsel submitted that Rule 49A(2)(a) is akin to Rule 99 of the Bihar Service Code and not Rule 100 thereof. Thus on his release on bail the suspension should be deemed to have come to an end and he cannot be deemed to be or treated as under suspension without passing a fresh order as envisaged under Rule 100 of the Service Code.

Shri R.K. Dutta, learned Standing Counsel No. 4, appearing for the Respondents, submitted that after the first suspension, two important events took place; first, the cases relating to fodder scam were assigned to the Central Bureau of Investigation (CBI) pursuant to the direction of this Court, confirmed by the Supreme Court, and second, sanction for Petitioner''s prosecution was granted vide Annexure A to the counter affidavit on 30.7.1999. It was thereafter that the Petitioner was taken into custody on 7.6.2000 and he remained so until his release on bail on 30.1.2001. As regards the efficacy of departmental proceeding, it was submitted that though the initial suspension was in contemplation of departmental proceeding and direction was also issued by this Court by order dated 29.10.1996 in CWJC No. 4235/96 to conclude the departmental proceeding, it transpired that entire record had been seized by the CBI and being part of investigation report they are now in custody of the CBI Court. In the circumstances there was little scope to conduct the departmental proceeding muchless within a time frame. In the meantime, sanction orders were issued in respect of Petitioner''s prosecution in the criminal cases, where after the Petitioner was taken into, custody on 7,6.2000. The Petitioner was placed under suspension under Rule 49A(2)(a) of the Rules. Counsel submitted that the real power to place a government servant under suspension flows from Rule 49A of the Rules and not from Rules 99 or 100 of the Service Code which are in the nature of general provisions occurring in the Chapter relating to pay. According to the Counsel where there is a special provision, the general provisions are not applicable. Generalia specialibus non derogant. Counsel further submitted that the employer has inherent power to place an employee under suspension. The only thing is that in the absence of any Rule to the contrary, subject to statutory provisions on the point, he is entitled to full salary for the suspension period. As, in the instant case, the Petitioner is also governed by the Bihar Service Code and Rules 96 thereof provides for subsistence allowance during the suspension period, the Petitioner is only entitled to such allowance and not salary.

The moot point for consideration, as indicated at the outset, is whether the suspension under Rule 49A(2)(a) of the Rules is co-terminus with the custody period like suspension under Rule 99 of the Service Code or the same continues even after person is released on bail or otherwise in a criminal case. In order to appreciate the point it would be appropriate to quote the relevant provisions of Rules 99 (so far as relevant) and 100 of the Service Code as under:

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 preventing detention should be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment, and not allowed to draw any pay and allowance (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....

A Government servant against whom a criminal charge or a proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisoned (e.g. while released on bail) if the charge made or proceeding taken against him connected with his position as a Government servant or is likely to embarass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and allowance the provisions of Rule 99 shall apply.

The words "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" occurring in Rule 99 of the Service Code leave no room for doubt that the suspension under that Rule comes to an end on the date the person is released from detention subject to any order which may be passed in terms of Rule 100. In other words, if no order as envisaged in Rule 100 is passed a person would be deemed to be free from suspension. Rule 99, in fact, it would appear from a base reading, contemplates deemed suspension by legal fiction, operative from the date of remand for a period exceeding forty-eight hours upto the date of his release. Such suspension under Rule 99 takes effect by fiction of law, whether order to this effect is Massed during continuity of the custody or afterwards. Rule 100, on the other hand, contemplates suspension by specific order. Unless an order to that effect is passed a person cannot be treated under suspension like Rule 99. It would thus follow that where as Rule 99 can have retrospective effect from the date of custody, suspension under Rule 100 takes effect from the date of the order. Thus where no order is passed as envisaged under Rule 100, a person cannot be treated as continuing under suspension. It is in this background that the question as to duration of suspension under Rule 49A of the Rules becomes significant.

At this stage Rule 49A of the Rules may be quoted so far as relevant as under:

49A. (1) The appointing authority or any authority to which it is subordinate or the Governor by general or Especial order, may place a Government servant under.

(a) where disciplinary proceeding against him is contemplated or is pending, or,

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

(c) ....

(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority-

(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;.

(b) ....

On a prima facie reading, at the first in stance, it does appear that the provisions of Rule 49A(2)(a) are akin to those of Rule 99 of the Service Code inasmuch as both of them deal with deemed suspension of a government servant. However, unlike corresponding provisions of Rules 99 or 100 of the Service Code, Sub-rule (5) of Rule 49A gives a continuing effect to the suspension. Sub-rule (5) reads as under:

(5)(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 to do so.

(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 hindering the continuance of that suspension the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until 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 anytime be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.

On a plain reading of Clause (a) of Sub-rule (5) it would be. abundantly clear that any order of suspension including deemed suspension under Sub-rule (2) shall continue to remain in force until it is modified or revoked by the authority competent to do so. In other words, where a government servant is placed under suspension by specific order under Sub-rule (1) of Rule 49A or is treated under deemed suspension under Sub-rule (2), the suspension remains in force until modified or revoked by the authority competent to do so. Sub-clause (b) empowers the competent authority to direct, for reasons to be recorded in writing, that the suspension may continue till termination of all or any of such proceedings. Clause (c) provides safeguard to the government servant against continuation of suspension by conferring power on the competent authority which has made the order or superior authority, to modify or revoke the suspension. It is relevant to mention here that executive instructions have been issued under which suspension of a government servant on the ground of pendency of criminal case may be reviewed after two years if in the opinion of the government/ competent authority there is no likelihood of the criminal case coming to an end in the near future.

While considering the issue of suspension we may usefully refer to the precedent on the point in the The Management of Hotel Imperial, New Delhi and Others Vs. Hotel Workers'' Union, the Court observed that the power of the employer to suspend an employee under the ordinary law of master and servant in the sense of a right to forbid a servant to work, is an implied term in an ordinary contract between master and servant and such a power can only be the creature either of a statute governing the contract, or of an express term in the contract itself. Ordinarily, therefore, the absence of such power either as an express term in the contract or in the Rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so he will have to pay wages during the so-called period of suspension. These observations, however were diluted, if we may say so, later in the case of T. Cajee Vs. U. Jormanik Siem and Another, wherein the observation "Power to suspend, in the sense of a right to forbid a servant to work, is not an implied term in an ordinary contract between master and servant" occurring in the Hotel imperial case (supra) was explained as not laying down that master could not forbid the servant from working while he was enquiring into his conduct with a view to remove him from service. It would be useful to quote the relevant observations in the latter case as under:

But that case did not lay down that the master could not forbid the servant from working while he was inquiring into his conduct with a view to removing him from service. It was specifically said there that if the master does so, namely, forbids the servant to work and thus in fact suspends him as an interim measure he will have to pay the wages during the period of interim suspension. These wages or payment for the work done or emolument of the office held could not be withheld in whole or in part unless there is power to make an order of interim suspension either in the conduct of employment or in the statute or the Rules framed there under. The effect of that decision is that in the absence of such power the master can pass an order of interim suspension but he will have to pay the servant according to the terms of contract between them.

Again, in the case of R.P. Kapur Vs. Union of India (UOI) and Another, the Supreme Court observed:

An order of interim suspension could be passed against the employee while inquiry was pending into his conduct even though there was no specific provision to that effect in his terms of appointment or in the Rules.

Though we find it difficult to accept the submission of the learned Standing Counsel that Rules 99 or 100 do not confer power of suspension and that the merely deal with the question of pay/allowance, we find force in his submission that Rule 49A would operate to the exclusion of Rules 99 or 100 of the Service Code. It is to be kept in mind that Rule 49A was inserted in the Rules by amendment on 8.8.1973. As the said Rule specifically provides for continuation of suspension "until it is modified or revoked by the authority competent to do so", under Sub-rule (5)(a), it is difficult to accept the submission of the Counsel that the Petitioner''s suspension came to an end on the date of his release on bail i.e. 30.1.2001 in terms of Rule 99 of the Service Code. May be, as Observed above, Sub-rule (2) contains provisions which are akin to Rule 99 but in view of the provisions of Sub-rule (5)(a) the suspension has 1o be held as continuing until it is modified or revoked by the competent authority. By virtue of Clause (c) of the sub-Rule it is open to the Petitioner to apply for modification or revocation of the order in terms of the said clause read with the relevant circular on the point. It goes without saying that as and when such application is made the same will receive due consideration by the competent authority and appropriate order will be issued in accordance with law.

In the result, we find" no merit in this writ petition, which is accordingly dismissed but without any order as to costs.