Patna High Court
Surajdeo Sharma vs The Bihar State Electricity Board And ... on 12 November, 1998
Equivalent citations: 1999(1)BLJR360
JUDGMENT J.N. Dubey, J.
1. Petitioner has approached this Court for issuing a writ of mandamus commanding the respondents to pay his salary and other allowances for the period he remained under suspension.
2. It appears that on 3.12.1982 the petitioner, who was working as Junior Electrical Engineer, Electric Supply Section, Pachrukhi, was arrested in Pachrukhi P.S. Case No. 77 of 1982 under Section 161 I.P.C. and Section 5(2) of the Prevention of Corruption Act. On 15.12.1982, he was placed under suspension with effect from 3.12.1982. On 24.12.1982, he was released on bail. On 27.6.1983, disciplinary proceedings was initiated against him. On 11.1.1985, the Enquiry Officer submitted his report in the disciplinary proceeding but the final decision in the matter was deferred till the conclusion of the criminal case. On 9.12.1985, he filed CWJC No. 5998 of 1985 which was dismissed on 25.2.1986. On 31.12.1986, he filed representation to the respondent No. 1 requesting it to revoke the suspension order and reinstate him in service on ad hoc basis on the ground that the criminal case pending against him was unlikely to be decided in near future, which was allowed on 23.4.1987 and he was released from the suspension with the observation that the question of payment of salary and other allowances for the period he remained under suspension, would be considered after the disposal of criminal and disciplinary proceeding. On 29.1.1990, he filed representation to the respondent No. 2 for payment of salary and other allowances for the period 25.12.1982 to 23.4.1987 during which he remained under suspension. The respondent No. 2 did not take any decision in the matter. Hence, this writ petition.
3. Heard the learned Counsel for the parties and perused the record.
4. Learned Counsel for the petitioner contended that the suspension order of the petitioner under Rule 99 of the Bihar Service Code (for short the Code) came to an end on his release on bail on 24.12.1982 and as no fresh order of suspension was passed under Rule 100 of the Code, he was entitled to get salary and other allowances for the period from 25.12.1982 to 23.4.1987 and the respondent No. 2 erred in deferring the decision in this regard till the conclusion of the pending criminal case. He has also cited decisions of this Court in CWJC No. 3733 of 1979,. Panchanan Kumar v. Bihar State Electricity Board and others and CWJC No. 2451 of 1980, Dinesh Sharma and Ors. v. Bihar State Electricity Board and Ors. in support of his case.
5. In order to appreciate the argument of the learned Counsel, Rules 99 and 100 are quoted below:
99. 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 preventive 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 allowances (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. An adjustment of his allowances for such period should, therefore, be made according to the circumstances of the case the full amount being given only in the event of the Government servant being acquitted for blame or (if the proceeding taken against him, were for his arrest for debt) of its being proved that the Government servant's liability arose from circumstances beyond his control or detention, being held by any competent authority to be unjustified.
100. A Government servant against whom a criminal charge of 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 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.
Rule 99 provides for an automatic deemed suspension in cases where a Government servant has been arrested on a criminal charge or is detained under any law providing for preventive detention or for debt. during the period for which he remains in custody, while Rule 100 provides for the contingency when a Government servant is not actually detained or imprisoned, as for example, when released on bail. The automatic deemed suspension under Rule 99 continues until the termination of the proceedings taken against a Government servant or until he is released from detention and allowed to rejoin his duties. The case of the petitioner is not of automatic deemed suspension as he was placed under suspension by a specific order on 15.12.1982 which runs as under:
Shri Surajdeo Sharma, Junior Electrical Engineer, Electric Supply Section, Pachrukhi, who was arrested while accepting bribe on 3.12.1982 and against whom a criminal case under Section 161 I.P.C./5(2) P.C. Act was lodged in Pachrukhi P.S. case No. 77/82 dated 3.12.1982, is placed under suspension with effect from the date he was arrested without prejudice to the further departmental action 'and Police case.
2. During the period of his suspension, he will draw subsistence allowance as admissible under the rules.
3. During the period of his suspension, his headquarters will remain in the office of the General Manager-cum-Chief Engineer, Tirhut Area Electricity Board, Muzaffarpur.
4. Board's office Order No. 663O dated 13.12.1982 issued earlier is hereby cancelled.
Since the petitioner was placed under suspension by a specific order, the question of his suspension coming to an end on his release on bail does not arise. Moreover, even the automatic deemed suspension under Rule 99 continues till the termination of the proceedings drawn against a Government servant or till he is released from detention and allowed to rejoin his duties. Thus, the deemed automatic suspension of the petitioner could not come to an end on his mere release on bail when admittedly he was not allowed to rejoin his duty till 23.4.1987.
6. As stated above, the petitioner filed CWJC No. 5998 of 1985 in this Court challenging his suspension which was dismissed on 25.2.1986. Subsequently, his suspension order was revoked on 23.4.1987 on his request with the observation that the question of payment of his salary and other allowances for the period he remained under suspension would be considered after the decision of pending criminal and disciplinary proceedings. This order not having been challenged has become final. Thus, the position at present is that while the attempt of the petitioner to get his suspension order dated 15.12.1982 failed, he made no attempt to get the condition imposed in order dated 23.4.1987 quashed.
7. The decision of this Court in Panchanan Kumar and Dinesh Sharma's case (supra) are of no help to the petitioner. In those cases, neither specific orders of suspension were passed nor any disciplinary proceedings were drawn. On the other hand, in this case not only specific order of suspension has been passed against the petitioner but disciplinary proceeding has also been initiated.
8. According to the respondents, the petitioner was reinstated in service on ad hoc basis taking lenient view on his request. This aspect of the case is dealt in paragraphs 16 and 17 of the Counter Affidavit which runs as under:
16. That in the meantime, petitioner filed a representation on 31.12.1986 before the respondent Board requesting therein that order of his suspension should be revoked and he should be reinstated in service on ad hoc basis on the ground that the criminal case pending against him will take long time in its disposal.
17. That the respondent Board taking into consideration the aforesaid fact and also taking lenient view in the matter, passed the impugned order dated 23.4.1987, contained in Annexure 4 of the main writ application, by which order of suspension has been revoked and the petitioner was released from suspension with immediate effect with specific stipulation that this will have no bearing on the criminal case pending against the petitioner and further it has been ordered that salary etc. for the period of suspension shall be decided after the decision in the criminal case and in the departmental proceedings are taken.
Paragraphs 16 and 17 of the counter-affidavit have not been replied in the rejoinder affidavit and, therefore, the averments made therein remain uncontroverted. Moreover, the petitioner, who has submitted to that order and joined the service in pursuance thereof, cannot be now heard saying after such a long time that the respondent No. 1 was not legally entitled to defer the decision on the question of payment of his salary and other allowances for the period he remained under suspension.
9. The writ petition is devoid of merit and is accordingly dismissed. No order as to costs.