Patna High Court
Santosh Kumar vs The State Of Bihar on 28 January, 2021
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5864 of 2020
======================================================
Santosh Kumar Son of Tetar Prasad Mehta Resident of Harihar Apartment,
Magistrate Colony P.S.- Rajiv Nagar District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar Through Chief Secretary Government of Bihar Main
Secretariat Patna.
2. The Chief Secretary Government of Bihar Main Secretariat Patna.
3. The Principal Secretary Department of Public Health Engineering
Department Vishwasarriya Bhawan Baily Road Patna.
4. The Joint Secretary Department of Public Health Engineering Department
Vishwasarriya Bhawan Baily Road Patna.
5. The Engineer in Chief Department of Public Health Engineering Department
Vishwasarriya Bhawan Baily Road Patna.
6. The Principal Secretary Department of Urban Development and Housing
Government of Bihar New Secretariat Patna.
7. The Bihar Urban Infrastructure Development Corporation Limited Through
its Managing Director Near Rajapul West Boring Canal Road, Patna.
8. The Managing Director Bihar Urban Infrastructure Development
Corporation Limited Near Rajapul West Boring Canal Road, Patna.
9. The Chief Engineer Bihar Urban Infrastructure Development Corporation
Limited Near Rajapul West Boring Canal Road, Patna.
10. The Superintendent Engineer Bihar Urban Infrastructure Development
Corporation Limited Near Rajapul West Boring Canal Road, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Kundan Kumar, Advocate
Mr. Ranjeet Kumar, Advocate
Mr. Jai Kishore Sharma, Advocate
Mr. Ayush Kumar, Advocate
For the State : Mr. S.Raza Ahmad (AAG-5)
For BUIDCO : Mr. Rabindra Kr. Priyadarshi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
ORAL JUDGMENT
Date : 28-01-2021
Patna High Court CWJC No.5864 of 2020 dt.28-01-2021
2/13
The petitioner was working as an Executive Engineer in
the Public Health Engineering Department (PHED), Government
of Bihar when his service was placed under the disposal of Bihar
Rajya Jal Parishad by a notification issued by PHED vide Memo
No. 489 dated 26.06.2017. The Bihar Rajya Jal Parishad, it has
been stated, has since merged in Bihar Urban Infrastructure
Development Corporation Ltd. (BUIDCO). The petitioner, upon
merger of Parishad with BUIDCO was posted as Executive
Engineer, New Capital Division, Patna with additional charge of
Beur-Mithapur Zone. Certain other zones were also placed under
the petitioner's jurisdiction.
2. The petitioner, it appears, was subsequently repatriated
to his parent department. On the allegation of dereliction in
discharge of his official duties and failure on his part to apprise
BUIDCO about maintenance of sump houses under his jurisdiction,
he has been put under suspension in exercise of power under Rule
9(1)(a) of Bihar Government Servants (Classification, Control and
Appeal) Rules, 2005 (hereinafter referred to as the 'Rules') in
contemplation of initiation of departmental proceeding by a
notification issued vide Memo No. 367 dated 14.02.2020, under the
signature of Joint Secretary, PHED under the orders of the
Governor of Bihar.
Patna High Court CWJC No.5864 of 2020 dt.28-01-2021
3/13
3. The said order of suspension has been challenged in
the present writ application. From the records, it appears that soon
after the impugned order was passed on 14.02.2020, the petitioner
filed the present writ application, inasmuch as, the date when the
affidavit was sworn has been mentioned as 18.02.2020. This
application was registered on 26.05.2020.
4. A supplementary affidavit has been filed on behalf of
the petitioner from which it appears that charges have been framed
against the petitioner on 19.05.2020. He has been supplied the
substance of imputations of misconduct, statement of imputations
of misconduct in support of the article of charge, list of documents
by which the article of charge is proposed to be sustained and the
list of witnesses by whom the articles of charge are proposed to be
sustained. The said charge-sheet has been brought on record by way
of Annexure-10 to the supplementary affidavit filed on behalf of the
petitioner. On perusal of Annexure-10 it appears that the order of
suspension dated 14.02.2020 was renewed by an order dated
11.05.2020, as contemplated under sub-rule (7) of Rule 9 of the Rules.
5. From the pleadings on record and submissions advanced on behalf of the petitioner, it appears that in the main writ application the petitioner has questioned the legality of the Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 4/13 impugned order on the ground that the authorities have exceeded their jurisdiction and that it is violative of Articles 14 and 21 of the Constitution of India.
6. Mr. Ranjeet Kumar, learned counsel appearing on behalf of the petitioner has drawn my attention to Annexure-10 of the supplementary affidavit filed on behalf of the petitioner and has submitted that framing of charge against the petitioner being not in accordance with the procedure prescribed under the Rules, the same cannot be said to be framing of charge within the meaning of Rule 9(7) of the Rules. According to him, since the charge-sheet, within the meaning of the provisions of the Rules, cannot be said to have been framed within three months from the date of issue of order of suspension and even during the extended period of suspension after renewal, the impugned order of suspension stands revoked by operation of the proviso to sub-rule (7) of Rule 9 of the Rules. He has further submitted that the charge has been framed by the Urban Development and Housing Department, Government of Bihar which is not the petitioner's parent department and, therefore, the framing of charge-sheet itself is incompetent and so is the continuance of the effect of the order of suspension. He has relied on Full Bench decision of this Court in case of State of Bihar v. Gyan Kumar Ram (Nandlal Baitha vs. The State of Bihar and Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 5/13 Others) reported in 2009 (4) P.L.J.R. 272. According to him, since charge cannot be said to have been framed in accordance with law even after four months of extended period of suspension, as stipulate in the Rules, the petitioner has right to be reinstated after revoking the order of suspension by operation of the proviso to Sub Rule (7) of Rule 9 of the Rules.
7. The main question which has arisen in the present writ application is, as to whether, the charge against the petitioner can be said to have been validly framed on 19.05.2020. Whether the plea that the framing of charge in the present case cannot be said to be by the disciplinary authority rather at the instance of BUIDCO, where the petitioner was deputed during the period, his misconduct relates to and, therefore, the same has no sanctity under the Rules is sustainable ? if the answer lies in negative, the petitioner cannot have any case to invoke the proviso to sub Rule (7) of Rule 9 of the Rules for establishing his right to be reinstated on the ground of absence of framing of charge.
8. It is true that the charge has been framed on the basis of the materials supplied by the BUIDCO including the report of an enquiry conducted by a High Level Committee constituted to enquire into the menace of water logging in the city of Patna. The framing of charge is apparently under the signature of the Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 6/13 competent authority. The charge, as has been noticed above, was framed on 18.05.2019. Before lapse of the period of three months from the date of issuance of order of suspension i.e. 14.02.2020, a notification was issued on 11.05.2020 to extend the period of suspension. Soon after the said period was extended, the charge against the petitioner was framed on 18.05.2020. The plea that Annexure R3 is not a framing of charge within the meaning of sub- rule 3 of Rule 17 of the Rules is wholly misconceived. The language of sub-rule (3) of Rule 17 of the Rules is abundantly clear, which requires the disciplinary authority to draw up or cause to be drawn up the substance of imputations of misconduct or misbehavior as definite and distinct article of charge and statement of imputations of misconduct or misbehavior in support of each article of charge. Both these conditions are satisfied in framing of charge against the petitioner. The petitioner has been supplied the list of documents by which and list of witnesses by whom the articles of charge are proposed to be sustained, along with the charge sheet. Situated thus, framing of charge in the present case, in my opinion, is inconformity with the provisions of sub-rule (3) of Rule 17 of the Rules. The substance of imputations of misconduct or misbehavior and statement of imputations of misconduct or misbehavior bear the signature of the competent authority. It cannot Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 7/13 be said thus that there is no application of mind in framing of charge and such plea is not available at this stage to the petitioner to challenge an order of suspension. The Full Bench decision in case of Nandlal Baitha (supra) relied on by learned counsel for the petitioner is of no help for assailing the order of suspension or for invoking proviso to sub- rule (7) of Rule 9 of the Rules to make out a case that the order of suspension stands revoked with lapse of time in the absence of framing of charge for the reason that the charge has in fact been framed within the extended period of four months. The conclusions recorded by the Full Bench in case of Nandlal Baitha (supra) read as under:-
" 20. 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 Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 8/13 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 is 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.
9. Nowhere the petitioner has stated that he ever exercised his right of being reinstated by making necessary application. As a matter of fact, he could not have exercised such a right of reinstatement because before completion of three months of Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 9/13 suspension, an order extending period of suspension was passed and during the extended period the charge was framed.
10. Learned counsel appearing on behalf of the petitioner has also submitted that the petitioner should not be allowed to remain under suspension for an indefinite period on the ground of pendency of a disciplinary proceeding. He has submitted that the petitioner's demand to supply documents for filing an effective written statement of defence has not been acceded to by the Disciplinary Authority because of which he could not file his written statement of defence.
11. The answer to this submission lies in sub- rule (4) of Rule 17 of the Rules which requires a disciplinary authority to deliver or cause to be delivered to a government servant:-
(i) A copy of article of charge.
(ii) Statement of imputations of misconduct or misbehavior.
(iii) A list of documents and witnesses by which each article of charge is proposed to be sustained.
12. After having delivered the above noted documents, the disciplinary authority would require a government servant to submit a written statement of defence and to state whether he desires to be heard in person. Sub-rule (4) of Rule 17 of the Rules does not require supply of documents rather it requires supply of Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 10/13 list of documents to a government servant along with the article of charge and statement of imputations of misconduct or misbehavior before asking a government servant to submit his written statement of defence. The said provision, however, does not take away a government servant's right to prepare his effective defence in view of sub-rule (9) and (11) of Rule 17 of the Rules. If because of non- availability of a document, no written statement of defence is submitted and an enquiring authority is appointed, the government servant has been given adequate opportunity to develop his defence after demanding documents during the course of enquiry, as stipulated under sub-rule (11) of Rule 17 of the Rules.
13. Be that as it may, in response to a query made by this Court, as to how much time will it take for the respondents to conclude the disciplinary proceeding, a supplementary counter affidavit has been filed on behalf of the respondents, State of Bihar stating therein that time frame for completion of different stage of departmental proceeding has been prescribed by the General Administration Department, Government of Bihar vide letter no. 2763 dated 26.02.2014. From paragraph 6 of the said supplementary affidavit, it appears that the General Administration Department has fixed a period of six months for conclusion of proceeding under Rule 17 of the Rules. It further transpires that by Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 11/13 a resolution dated 31.12.2020 issued by PHED (Annexure R/5) that the Chief Enquiry Commissioner, General Administration Department, Government of Bihar has been appointed as the Enquiring Authority. A presenting officer has also been appointed. In a supplementary affidavit filed on behalf of the petitioner, it has been stated that when the matter was taken up on 13.01.2021, learned counsel for the petitioner did not have the information about initiation of departmental enquiry with the appointment of inquiring authority and, therefore, the said fact could not be communicated to this Court.
14. It is true that an employer has an inherent right to put his employee under suspension. However, the authority to place a government servant under suspension is generally governed by statutory rules. As in the present case, a government servant subject to provision of the rules for the purpose of disciplinary action is entitled for subsistence allowance during the period of suspension. Though an order of suspension per se is technically not a punishment for a government servant, such orders undoubtedly have adverse effect on a government servant's general reputation and lowers down his morale. These factors need to be kept in mind by an employer, which is stated within the meaning of Article 12 of the Constitution of India. Keeping a Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 12/13 government servant under suspension for an indefinite period or for avoidable longer period on the ground of pendency of a disciplinary proceeding, in Court's opinion, is not in public interest. This is, firstly, for the reason that the government has to pay subsistence allowance during the period of suspension without taking any work from the government servant. Secondly, such continued suspension for long period adversely affects the efficiency and morale of a government servant. Thirdly, the post against which, a suspended government servant was appointed, becomes vacant and remains vacant during the period of his suspension which has cascading effects on the administration of the concerned department or establishment, as it is unlikely that such posts shall be filled up for temporary period.
15. It is encouraging, however, to notice that the State Government has laid down a time frame for conclusion of departmental proceeding against a government servant. The Court expects that the present departmental proceeding against the government servant shall be concluded expeditiously and in any case within a period of six months from today.
16. The petitioner is expected to cooperate with the departmental proceeding and in case he fails to do so, the enquiring authority and the disciplinary authority shall be at liberty Patna High Court CWJC No.5864 of 2020 dt.28-01-2021 13/13 to proceed in accordance with the provisions under the rules. In any case, if the disciplinary proceeding is not concluded within a period of six months from today, the State respondents shall be obliged to seek leave of this Court for extension of time for conclusion of departmental proceeding.
17. In view of the aforesaid discussion, no interference is required by this Court with the impugned action of the respondents. This application is dismissed accordingly, but with the directions and observations, as noted above.
18. There shall be no orders as to cost.
(Chakradhari Sharan Singh, J) Akash/Rajesh-
AFR/NAFR NAFR CAV DATE N/A Uploading Date 09.02.2021 Transmission Date N/A