Patna High Court - Orders
The State Of Bihar & Ors vs Gayan Kumar Ram on 16 September, 2009
Author: P.K.Misra
Bench: Chief Justice, Shiva Kirti Singh, Anjana Prakash
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA. No.778 of 2009
---
1. The State of Bihar
2. The Under Secretary, Department of Personnel &
Administrative Reforms, Government of Bihar, Patna
3. The Deputy Secretary, Department of Personnel &
Administrative Reforms, Government of Bihar, Patna
4. The District Magistrate, Madhepura
5. The Sub-divisional Officer, Uda-Kishunganj, Madhepura
......... Appellants
Vs.
Gyan Kumar Ram s/o late Hira Lal Ram, r/o village and P.O.
Nadawan, District - Buxar ........ Respondent
with
CWJC. No.1562 of 2009
---
Nandlal Baitha, s/o Sri Dudha Nath Baitha, r/o village -
Mainidih, P.S. - Batyan Bazar, District - Gopalganj
...... Petitioner
Vs.
1. The State of Bihar
2. The Principal Secretary, Road Construction Department,
Bihar, Patna
3. The Deputy Secretary (Vigilance) Road Construction
Department, Bihar, Patna
.............. Respondents
For the Appellants/Petitioners: Mr. Binod Kanth, Sr. Advocate
Mr. Shailendra Kr. Jha, Advocate
Mr. P.N.Pathak, Advocate
For the respondents: Mr. P.K. Vermak, AAG-XI
Mr. Dhirendra Kumar Jha-2,
Advocate
---
PRESENT
HON'BLE THE CHIEF JUSTICE,
HON'BLE MR. JUSTICE SHIVA KIRTI SINGH &
HON'BLE JUSTICE SMT. ANJANA PRAKASH
---
P.K.Misra, CJ. C.W.J.C No. 1562 of 2009 has been filed for quashing an
order of suspension mainly on the ground that the charge sheet was not
framed within the period of three months as contemplated in Rule 9(7)
of the Bihar Government Servants (Classification, Control and Appeal)
Rules, 2005 (the Rules, for brevity). The petitioner, by placing reliance
upon the Division Bench decision in Chandra Sekhar Prasad v. State
of Bihar (2008(1) PLJR 731), contended that an order of suspension
passed in contemplation of the departmental proceeding cannot continue
beyond three months unless charge is framed within the said period or
there is an extension of the order of suspension which is to be recorded
in writing. The State Government, on the other hand, placed reliance
upon a Division Bench decision dated 6.8.2008 in L.P.A No. 459 of
2008 in the case of Jang Bahadur Singh v. State of Bihar and others
(since then reported in 2008(4) PLJR 307). Since the learned single
Judge found that there was an apparent conflict between the two
Division Bench decisions, the matter was referred to a Division Bench
for consideration. The Division Bench, by its order dated 19.3.2009,
noticing the conflict between the two decisions, referred the matter for
consideration by a larger Bench. While doing so, the Division Bench
further directed that the proceedings should be completed within three
months and if the proceedings are not completed within the said three
months, then the suspension of the petitioner shall be revoked. It is
stated by the learned senior counsel appearing for the petitioner that in
fact the order of suspension was subsequently revoked on account of the
fact that the proceedings could not be completed within three months.
Therefore, for all practical purposes, C.W.J.C No. 1562 of 2009 has
become infructuous, in the sense that the order of suspension, which was
being impugned, is no longer in existence. Be that as it may, since the
matter was referred to a larger Bench, the learned senior counsel
appearing for the petitioner and the learned counsel appearing for the
State have made their submissions on the main point of reference viz.
relating to the interpretation of Rule 9(7) of the Rules and the proviso
thereof.
2. L.P.A No. 778 of 2009, which is directed against the order of a
learned single Judge in C.W.J.C No. 18180 of 2008 quashing an order of
suspension on the ground that the charge sheet had not been framed
within the stipulated period of 90 days, was also referred to a larger
Bench by order dated 10.9.2009 on account of the apparent conflict
between the two decisions reported in Chandra Sekhar Prasad's case
(supra) and Jang Bahadur Singh's case (supra). In other words, in both
the matters the basic question being the same, they were heard together
and the counsel for the parties have made their submissions.
3. Before considering the specific provision contained in the
Rules, we feel it appropriate to notice the decision of the Supreme Court,
relating to the power and effect of suspension of a Government servant,
in R.P Kapur v. Union of India and another (AIR 1964 SC 787). The
Supreme Court observed:
"(10) ..............The general law on the subject of suspension
has been laid down by this Court in two cases, namely, Management of
Hotel Imperial, New Delhi v. Hotel Workers‟ Union, (1960) 1 SCR 476
: (AIR 1959 SC 1342) and T. Cajee v. U. Jormanik Siem, (1961) 1 SCR
750 : (AIR 1961 SC 276). These two cases lay down that it is well
settled that under the ordinary law of master and servant the power to
suspend the servant without pay could not be implied as a term in an
ordinary contract of service between the master and the servant but
must arise either from an express term in the contract itself or a
statutory provision governing such contract. It was further held that an
order of interim suspension could be passed against an 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. But
in such a case he would be entitled to his remuneration for the period of
his interim suspension if there is no statute or rule existing under which
it could be withheld.
11. The general principle therefore is that an employer
can suspend an employee pending an enquiry into his conduct and the
only question that can arise on such suspension will relate to the
payment during the period of such suspension. If there is no express
term in the contract relating to suspension and payment during such
suspension or if there is no statutory provision in any law or rule, the
employee is entitled to his full remuneration for the period of his
interim suspension; on the other hand if there is a term in this respect in
the contract or there is a provision in the statute or the rules framed
thereunder providing for the scale of payment during suspension, the
payment would be in accordance therewith. These general principles in
our opinion apply with equal force in a case where the government is
the employer and a public servant is the employee with this
modification that in view of the peculiar structural hierarchy of
Government, the employer in the case of government, must be held to
be the authority which has the power to appoint a public servant. On
general principles therefore the authority entitled to appoint a public
servant would be entitled to suspend him pending a departmental
enquiry into his conduct or pending a criminal proceeding, which may
eventually result in a departmental enquiry against him. ........... Though
this provision does not directly apply in the present case, it is in
consonance with the general law of master and servant. But what
amount should be paid to the public servant during such suspension will
depend upon the provisions of the statute or rule in that connection. If
there is such a provision the payment during suspension will be in
accordance therewith. But if there is no such provision, the public
servant will be entitled to his full emoluments during the period of
suspension. This suspension must be distinguished from suspension as a
punishment which is a different matter altogether depending upon the
rules in that behalf. .........".
4. With the above prefatory concept, it is necessary to notice the
relevant rules. Rule 9 of the Rules, being relevant, is extracted
hereunder:
"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.
(2) A government servant shall be deemed to have been
placed under suspension by an order of appointing authority with
effect from the following date:-
(a) from the date of his or her detention, if he
or she is detained in custody, whether on a criminal charge
or otherwise for a period exceeding forty eight hours;
(b from the date of his or her conviction, if, in
the event of a conviction for an offence he or she is
sentenced to a term of imprisonment exceeding forty-eight
hours and is not forthwith dismissed or removed or
compulsorily retired consequent to such conviction.
EXPLANATION:- The period of forty-eight hours specified
in clause (b) of this sub-rule shall be computed from the
date of commencement of the imprisonment after the
conviction and for this purpose intermittent periods of
imprisonment, if any, shall be taken into account.
(3) (i) After the custody period under sub-rule (2), the
period of deemed suspension shall be deemed to end when the
government servant give his joining and the joining shall be accepted.
(ii) If a decision is taken to suspend the government
servant again under sub-rule (1)(a), or (b) or (c), then such action may
be taken only after acceptance of joining and by issuing a separate
order.
(4) Where a penalty of dismissal, removal or
compulsory retirement from service imposed upon a government
servant under suspension is set aside in appeal or on revision under
these Rules and the case is remitted for further inquiry or action or
with any other directions, the order of his suspension shall be deemed
to have continued in force on and from the date of the original order
of dismissal, removal or compulsory retirement and shall remain in
force until further orders.
(5) Where a penalty of dismissal, removal or
compulsory retirement from service imposed upon a government
servant is set aside or declared or rendered void in consequence of or
by a decision of a court of law and the disciplinary authority, on a
consideration of the circumstances of the case, decides to hold further
inquiry against the government servant to meet a situation where the
court has passed an order purely on technical grounds without going
into the merits of the case, on the allegations on which the penalty of
dismissal, removal or compulsory retirement was originally imposed,
the government servant shall be deemed to have been placed under
suspension by the Appointing Authority from the date of the original
order of dismissal, removal or compulsory retirement and shall
continue to remain under suspension until further orders.
(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.
(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 along with 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."
5. A careful perusal of the aforesaid Rule 9 makes it clear that an
order of suspension can be passed under Rule 9(1)(a) in contemplation
of a disciplinary proceeding or while disciplinary proceeding is pending.
Under Rule 9(1)(b) the appropriate authority can also suspend an
employee if it is of the opinion that the employee has engaged himself in
activities prejudicial to the interest of the security of the State. Under
Rule 9(1)(c), the Government servant can also be placed under
suspension if the competent authority is satisfied that it is expedient to
suspend such a Government servant in public interest, where a criminal
case against the Government servant is under investigation, inquiry or
trial. An analysis of Rule 9(1)(a) read with Rule 9(7) of the Rules makes
it clear that the competent authority is empowered to suspend a
Government servant in contemplation of a disciplinary proceeding or
during the pendency of the disciplinary proceeding. However, if the
suspension order is passed in contemplation of a disciplinary proceeding,
the charge sheet must be framed by the disciplinary authority within
three months from the date of issue of the suspension order. If the
charge sheet is not framed within the said three months, the suspension
order shall be revoked, unless the competent authority passes an order
renewing the suspension along with the reasons to be recorded in writing
for the delay in framing of the charge sheet. Such extension of the
period of suspension in contemplation of a departmental proceeding can
remain in vogue only for a further period of four months and if, within
the extended period of four months, charge sheet is not framed „the
suspension order shall stand revoked‟.
6. In Chandra Sekhar Prasad's case (supra), the order of
suspension had been passed in contemplation of a disciplinary
proceeding. However, the charge sheet was not framed within three
months. After the expiry of three months, no specific order of extension
was issued nor was charge sheet framed within a further period of four
months. The Division Bench, while considering the legality of the order
of suspension, observed as follows:
"4. In the facts and circumstances and in the light of
statements made by learned counsel for the appellant petitioner, we do
not propose to go into the merit of the order dated 3.10.2007. Accepting
the statement of learned counsel for the appellant-petitioner to be
correct, the suspension order automatically comes to an end on expiry
of three months from the date of the order where no charge-sheet has
been issued before the expiry of three months or no order extending the
period of suspension has been made by a reasoned order.
5. Since according to learned counsel for the appellant both
things have not happened, the suspension order has come to an end
automatically. However, in case either of the conditions has been
satisfied before 3rd January, 2008, the suspension order shall remain in
force."
7. In Jang Bahadur Singh's case (supra), the suspension order
was passed in contemplation of a disciplinary proceeding. Even though
no charge sheet was framed within the period of three months and no
specific order extending the suspension was passed, the charge sheet was
framed within a few days after the expiry of three months. However, the
delinquent employee challenged the continuance of the order of
suspension mainly on the ground that charge sheet having not been
framed within a period of three months as contemplated, the order of
suspension came to an automatic end on the expiry of three months.
While repelling such contention, the Division Bench observed as
follows:
"5. A plain reading of the aforesaid rule would clearly show
that there is no automatic revocation of the suspension order on expiry
of three months from the date of issue of suspension order, even if the
charge-sheet has not been served within that time. This becomes
apparent if the provision is closely looked. What rule requires is that
charge-sheet must be framed within three months from the date of
issuance of suspension order. If it is not done then the authority shall
revoke the suspension order unless he passes an order renewing
suspension for the reasons to be recorded in writing. If within four
months therefrom the charge-sheet is still not framed, then, order of
suspension stands revoked automatically. The expression used, „the
suspension order shall be revoked‟ in contra distinction to the
expression used in the proviso appended thereto, „the suspension order
shall stand revoked‟ reflects the rule makers intention. By the use of
expression, „the suspension order shall be revoked‟, the rule makers
have made a provision that in case the charge-sheet is not served within
three months from the date of issue of suspension order and the
suspension order is not renewed the authority shall pass an order
revoking the suspension order. In other words, the provision
contemplates issuance of an order by the authority revoking the order of
suspension on expiry of three months where charge-sheet is not served
within three months from the date of issue of suspension order. It is
altogether different where within four months of the expiry of three
months the charge-sheet is still not served. Then the effect is that the
suspension order by operation of law stands revoked. In that situation, it
is not necessary that the authority must pass an order5 revoking
suspension order but by operation of law the order of suspension stands
revoked. The use of two different expressions in the same provision is
indicative of the intention of the rule makers.
6. xx xx xx xx xx
7. In the present case, the order of suspension has not been
revoked by the authority. It is an admitted fact that within twenty days
of expiry of three months, charge-sheet has been served upon the
petitioner. Obviously, in this view of the matter, the suspension order
does not stand automatically revoked. Merely because there has not
been any specific order of renewal of suspension, it does not affect the
validity of suspension order. Once the charge-sheet has been framed
within four months from the expiry of three months of the date of issue
o9f suspension order, by not specifically renewing the order of
suspension while framing charge-sheet, at best it can be said that some
irregularity has been committed by the authority but that does not
render the order of suspension illegal."
It is thus apparent that there is some divergence of opinion, as reflected
in the two reported judgments noticed above.
8. The basic question is, whether the order of suspension
automatically comes to an end on the expiry of three months if charge
sheet is not framed within the said period of three months and no order
of extension is passed for reasons to be recorded in writing.
9. It is true that Rule 9(7) of the Rules does not specifically state,
unlike proviso to Rule 9(7), that on failure to frame the charge-sheet
within three months, the order of suspension is deemed to be revoked or
„shall stand revoked'. The rule provides in no uncertain terms that
„charge-sheet must be framed within three months‟. The consequence of
failure to do so is envisaged by providing „..... failing which on expiry
of three months the suspension order shall be revoked.‟ This does not
leave any discretion with the authority not to revoke the suspension. The
only alternative left with the authority if he intends to extend the order of
suspension is to pass an order extending such suspension. However,
even this discretion is controlled by the requirement that he is required to
pass orders „renewing the suspension along with reasons to be recorded
in writing‟. It is further contemplated that the reasons should be „for the
delay in framing of charge-sheet‟ and not for any other reason such as
seriousness of the allegations, etc.
10. It is, no doubt, true that whether the provision is directory or
mandatory is not merely dependent upon the language used, but also on
several other factors. It is generally construed that if a statute imposes a
public duty to perform but does not envisage the consequences of
failure, the provision may be construed as directory. Can it be said in the
context of Rule 9(7) that the consequence of the failure to perform duty
has not been envisaged? The rule categorically says that on failure to
frame charge-sheet within three months, the suspension order shall be
revoked. The rule also envisages the possibility of avoiding such a
consequence by clearly enabling the competent authority to renew the
suspension order. But such order can be passed only for reasons to be
recorded in writing.
11. The matter can be looked into from another angle. The rule
empowers the authority to pass orders renewing the suspension by
reasons to be recorded in writing. The recording of reason is apparently
a condition precedent for extending the period of suspension. By holding
that the object of extending the suspension period can be achieved by
keeping quiet and simply sitting over the matter would be anomalous.
The reasons must be relatable to the cause of delay in not framing
charge-sheet within three months. If it is construed that the object of
continued suspension even in the absence of any order renewing the
suspension can be achieved by simply not passing any order the same
would be defeating the very specific provision contained in Rule 9(7) of
the Rules. It would only mean that what cannot directly be achieved
could be achieved indirectly by simply not passing any order. It would
mean that instead of there being an express order extending the
suspension, there would be an „implied order‟ extending such
suspension.
12. It is a well entrenched concept that when the manner of
exercising power is laid down, such power is to be exercised in the
manner prescribed or not at all (see Indian Banks' Association,
Bombay and others v. Devkala Consultancy Service and others
(2004) 11 SCC 1).
13. An order of suspension, in contemplation of a departmental
proceeding, which has a life span of three months, can be renewed for a
further period of four months by an order renewing the suspension for
reasons to be recorded in writing. The manner of exercising such a right
is clearly prescribed and, therefore, it has to be exercised in the manner
prescribed and not in any other way.
14. Even though we have come to the conclusion that on
failure to frame charge sheet within three months from the date of issue
of suspension order, the suspension shall be revoked unless the
competent authority renews the suspension order for reasons to be
recorded in writing for the delay in framing charge sheet, the question
still remains to be considered is whether on the expiry of three months,
the concerned employee is deemed to be reinstated automatically
without any order being passed.
15. Although Rule 9(7) of the Rules, in no uncertain terms, lays
down that the charge-sheet must be framed within three months from the
date of issue of the suspension order, it does not lay down that on failure
to frame charge-sheet within three months, the suspension order shall be
deemed to have been revoked or „shall stand revoked‟, as otherwise
clearly stipulated in the proviso to Rule 9(7). It provides that the
suspension order shall be revoked on failure to frame charge-sheet
within three months. It also empowers the authority to pass an order
renewing the suspension. There is no express provision that unless the
order extending the suspension is passed before expiry of the period of
suspension, the order of suspension is automatically revoked.
16. In this context, we may refer to Rule 9(6)(a) of the Rules,
which specifically provides that an order of suspension made under this
rule meaning thereby obviously Rule 9(1) or deemed to have been made
under this rule meaning thereby deemed suspension as contemplated
under Rule 9(2) shall continue to remain in force until it is modified or
revoked by the authority competent. Under Rule 9(3)(i), the deemed
suspension under Rule 9(2), which occurs when a person is detained for
a period exceeding 48 hours, shall be deemed to end after the custody
period. In such sub rule, it is contemplated that the period of deemed
suspension shall be deemed to end when the Government servant gives
his joining report and such joining shall be accepted. In fact, Rule
9(3)(ii) also specifically contemplates that fresh order of suspension can
be passed under Rule 9(1)(a) or 9(1)(b) or 9(1)(c) only after acceptance
of the joining and by issuing a separate order. If all the provisions are
harmoniously construed, it would mean that even though there is specific
provision in the shape of Rule 9(3)(i) or Rule 9(7) proviso, where the
period of deemed suspension or the actual period of suspension shall
deemed to have come to an end or shall stand revoked, there is no such
specific provision that on the failure to frame charge-sheet within three
months as contemplated in Rule 9(7), the suspension order is deemed to
have been revoked or „shall stand revoked‟ . It is, no doubt, true that
many of the expressions given in Rule 9(7) may, prima facie, give the
impression of the peremptory nature of the language used. But in the
absence of specific provision having been laid down that such
suspension order shall be deemed to have been revoked or shall stand
revoked on failure to frame charge-sheet within three months, the
provision can be construed to mean that there is no automatic
termination of the order of suspension. The provision still envisages that
the order revocation is required to be passed.
17. The law is well settled that no provision of any statutory
rule should be read in isolation and effort should be made to harmonise
all the provisions. It is to be noticed that Rule 9(7) empowers the
competent authority to pass an order renewing the suspension with
reasons to be recorded in writing for the delay in framing charge-sheet.
If charge-sheet is not framed within three months and no order renewing
the suspension is passed, at that stage, the employee has the right to seek
for revocation of the order of suspension and in such an event, the order
of suspension is bound to be revoked once the employee evinces his
intention to resume duty by making appropriate application before the
concerned authority or even in a court of law. If by the time the
employee makes an application for reinstatement on account of the non-
compliance with Rule 9(7), the authority concerned will have no further
discretion in the matter and is bound to reinstate him in service. If, on
the other hand, before the employee evinces clear intention to be
reinstated, the competent authority issues any order renewing the order
of suspension for reasons to be recorded in writing, the cloud regarding
the vulnerability of the suspension is cleared and thereafter there will not
be any occasion for the suspended employee to claim that he must be
reinstated in service notwithstanding the fact that in the meantime the
competent authority has passed an appropriate order renewing the
suspension. What is to be noticed is that Rule 9(7) does not lay down in
clear terms that the order extension suspension cannot be passed even
after there has been some gap. Similarly, if, before the employee
exercising his right of claim for reinstatement, charge-sheet is framed,
the vulnerability of the suspension order on account of the fact that
charge-sheet is not framed within the three months period comes to an
end.
18. In this connection, we may profitably refer to the
provisions contained in the proviso to Section 167(2) of the Code of
Criminal Procedure or the similar provision contained in the Terrorist
and Disruptive Activities (Prevention) Act, 1987. While construing the
above provision, it has been laid down by the Supreme Court that on the
failure of the investigating agency to file charge-sheet within the
stipulated period, an accused person gets a right to be released on bail.
But, if, before the accused person exercises his option and seeks for bail,
the charge-sheet is filed, the right to get the statutory bail as
contemplated in Section 167(2) proviso is defeated. This position is
clear in view of the decision of the Supreme Court in Sanjay Dutt v.
State through C.B.I, Bombay (II) (1994(5) SCC 410) and Dinesh
Dalmia v. C.B.I (2007 (8) SCC 770).
19. Taking a leaf out of the above decisions of the Supreme
Court and keeping in view the subtle distinction in the language in Rule
9(7) on the one hand and in proviso to Rule 9(7) and Rule 9(6) on the
other, it would reasonable to construe that on failure on the part of the
competent authority to frame charge-sheet within three months, the
concerned employee gets a right „to seek for reinstatement‟. If he
exercises the right by filing appropriate application either before the
competent authority or even in a court of law, the order of suspension is
bound to be revoked and the competent authority cannot have any other
option. However, if the employee fails to exercise such right of being
reinstated and either the charge-sheet is framed or the order of
suspension is renewed for reasons to be recorded in writing as envisaged
in Rule 9(7), „the imperfect right‟ of the suspended employee gets
defeated. In other words, the employer has the authority to pass an order
renewing the suspension for reasons to be recorded in writing not only
within the period of three months, but also after the expiry of such
period of three months, provided the employee has failed in the
meantime to exercise his right of being reinstated by making appropriate
applications.
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 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.
21. It is apprehended that a matter relating to framing of
charge-sheet within the prescribed period of three months and the
subsequent renewal of the order of suspension may be deliberately
kept out of the purview of the competent authority by not placing
the relevant papers/files before the concerned authority in time by
the subordinate staff thereby facilitating the revocation of the
order of suspension. Such an apprehension can be considered as a
very remote one. First of all, the disciplinary authority is expected
to be vigilant in such matters and cannot simply afford to be
indolent. Moreover, even assuming that it may so happen
occasionally, the disciplinary authority is not rendered irrelevant
because such authority shall always have the discretionary power
of passing a fresh order of suspension if the circumstances so
warrant after framing of charge-sheet. Even if an order of
suspension is revoked on account of non-compliance with Rule
9(7) or by virtue of the proviso to Rule 9(7), there is ample power
available to the competent authority to exercise the power of
placing a Government servant under suspension under Rule
9(1)(a) because a suspension order can always be passed when a
disciplinary proceeding is pending. There is no embargo anywhere
that a suspension order which is revoked for any reason
whatsoever, including on account of non-compliance with Rule
9(7), would stand as a bar in exercising the power of suspension
afresh once a disciplinary proceeding is initiated, if the facts and
circumstances so warrant. It is not as if revocation of the
suspension order, whether deemed or otherwise, can be used as a
protective shield by the errant employee in thwarting permanently
any possible order of suspension in future. The provision
contained in Rule 9(7) can at best be a temporary reprieve to the
concerned employee, since the avowed object of Rule 9(7) is to
ensure that no person, who is suspended in contemplation of a
disciplinary proceeding, should be kept under indefinite
suspension. It is the solemn duty of the employer to ensure
compliance with the provisions. Such provision saves the right of
the employer to extend the period of suspension for a further
period of four months for reasons to be recorded in writing. It
also gives a temporary protection to the employee for not being
kept under suspension for indefinite period, even though charge-
sheet has not been framed within the period of three months.
22. For the aforesaid reasons, we are of the opinion that on
failure of the competent authority to frame charge-sheet within the
period of three months if an order of suspension is passed in
contemplation of a disciplinary proceeding, in the absence of any order
of extension of the suspension for reasons to be recorded in writing, the
concerned employee has a right to claim that he should be reinstated and
at this stage, the competent authority is bound to reinstate such person in
service. However, thereafter, it will always be open to the competent
authority to pass a fresh order of suspension once the charge-sheet is
framed.
23. As we have already noticed, the claim in C.W.J.C
No.1562 of 2009 has become infructuous inasmuch as the order of
suspension has been subsequently revoked, the writ petition is disposed
of accordingly.
24. So far as L.P.A No.778 of 2009 is concerned, the
learned single Judge has quashed the order of suspension on account of
the fact that charge-sheet has not been framed within a period of three
months from the date of the initial order of suspension. On the date when
such order was passed obviously an irregularity or a defect had crept into
the order of suspension inasmuch as neither the charge-sheet has been
framed nor the order of suspension has been extended. It is, no doubt,
true that subsequently the charge has been framed. However, since in the
interregnum period the suspension order had already been quashed, the
question of curing the defect in the order of suspension on the framing of
the charge-sheet does not arise. Therefore, there is no scope to interfere
with the order passed by the learned single Judge. However, it is made
clear that if the disciplinary authority feels that it is necessary to pass a
fresh order of suspension, the order of the learned single Judge would
not stand in the way of passing a fresh order of suspension, in view of
the fact that subsequently charge-sheet has already been framed.
In the result, subject to the clarifications and the directions issued
above, both the references are answered accordingly.
Sd/-
(P.K.MISRA, CJ.)
SHIVA KIRTI SINGH, J.
I agree . Sd/-
(SHIVA KIRTI SINGH, J.)
ANJANA PRAKASH, J.
I agree. Sd/-
(ANJANA PRAKASH, J.) PATNA HIGH COURT, DATED, THE 16TH SEPTEMBER, 2009 NEYAZ/AFR