Jharkhand High Court

Pramod Prasad vs The State Of Jharkhand on 25 February, 2021

                                             1                 [W.P.(S) No. 3331 of 2020]




             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 3331 of 2020

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Pramod Prasad, aged about 60 years, son of late Brijnandan Prasad, r/o Village-Mundipur, PO-Ranipur, PS-Ekangarsarai, Dist.-Nalanda, Bihar ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.The Secretary, Department of School Education and Literacy, Government of Jharkhand, Project Bhavan, PO+PS-Dhurwa, District- Ranchi, Jharkhand

3.The Special Secretary, Department of School Education and Literacy, Government of Jharkhand, Project Bhavan, PO+PS-Dhurwa, District- Ranchi, Jharkhand

4.The Director, Primary Education, Department of School Education and Literacy, Government of Jharkhand, Project Bhavan, PO+PS-Dhurwa, District-Ranchi, Jharkhand

5.The Deputy Commissioner, Sahebganj, PO+PS+Dist.-Sahebganj, Jharkhand

6.The Regional Deputy Director of Education, Santhal Pargana, Dumka, PO+PS+District-Dumka, Jharkhand ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Rishikesh Giri, Advocate For Resp.-State :- Mr. P.A.S.Pati, SC-IV

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7/25.02.2021 Heard Mr. Rishikesh Giri, the learned counsel appearing on

behalf of the petitioner and Mr. P.A.S. Pati, the learned counsel appearing

on behalf of the respondent State.

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. The petitioner has preferred this writ petition for quashing

the order dated 12.05.2020 by which the petitioner has been put under

suspension contemplating the departmental proceeding. The prayer for

revocation of the suspension of the petitioner is also made in view of the

fact that the suspension continued for more than three months and that

too, without framing of the charge sheet.

4. The petitioner was initially appointed as an Officer of Bihar

Sub-ordinate Education Service on 16.03.1991 and was promoted as

Officer of the Jharkhand Education Service, Class-II. The petitioner's

service was transferred from Area Officer, Angara to District

Superintendent of Education, Sahebganj vide order dated 04.09.2018.

The petitioner joined the said post on 29.09.2018. The petitioner for the

first time was appointed and posted as District Superintendent of

Education and the petitioner was discharging his duty, but some rift arose

between the petitioner and the then Deputy Commissioner on some of

the issues and as a result of which, vague allegations were made by the

Deputy Commissioner. The Deputy Commissioner, Sahebganj put

allegation against the petitioner and intimated the Secretary to initiate

disciplinary proceeding against him. The petitioner requested for

supplying of the letter by which the allegation has been put against the

petitioner by the Deputy Commissioner. It was alleged that due to

lethargic attitude of the petitioner in the Vishnu Kumar Das contempt

case, the order was not complied in time, however, subsequently, the

said contempt proceeding was dropped. There are other allegations of

non-compliance of the order of the Court. The petitioner was suspended

vide order dated 12.05.2020 on the aforesaid allegation. However, the

order was passed for payment of subsistence allowance to the petitioner

in terms of Rule 97 of Jharkhand Service Code.

5. Mr. Rishikesh Giri, the learned counsel appearing on behalf

of the petitioner submits that before passing of the suspension order the

authority concerned has not applied the mind. He submits that

suspension order is having the far reaching effect and the civil

consequences on the prestige of any employee. He submits that the

relevant rules of Jharkhand Government Servant (Classification, Control

and Appeal) Rules, 2016 has not been followed. He submits that Rule

9(6)(b) clearly stipulates that for the reasons to be recorded by which in

writing the suspension may continue. He further submits that in view of

Rule 9(6)(c), the authority has not passed any further order. However,

the petitioner retired on 31.01.2021. He further submits that now the

charge sheet has been annexed by way of filing supplementary counter

affidavit wherein the petitioner has been directed to participate and

defend his case in the departmental proceeding. He submits that after

submitting the charge sheet now the suspension order has not been

revoked. He submits that once the order is there, and the order has not

been recalled or revoked, it is deemed that the order is still there even

after the superannuation. He submits that more than three months have

already been passed before his retirement and no order of extension of

suspension of the petitioner was passed and the petitioner retired in the

meantime and the order of suspension is still there. He further submits

that in view of the vague allegation, the suspension was not required,

however, only on the arbitrary action on behalf of the higher authority,

the said suspension order has been passed. He submits that on the fact

that the petitioner has been suspended, he has already suffered

ignominy of insinuations, scorn of society and derision of his department

even before he was charge sheeted. He refers to the case of "Ajay Kumar

Choudhary v. Union of India" (2015) 7 SCC 291. Paragraph -21 of the

said judgment is quoted hereinbelow:

"21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/ employee; if the memorandum of charges/ charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."

6. He fairly submits that the departmental proceeding is there

and the petitioner is ready to face the departmental proceeding and also

to co-operate in the departmental proceeding and in that view of the

matter, the suspension order is illegal.

7. Per contra, Mr. P.A.S. Pati, the learned counsel appearing on

behalf of the respondent State submits that the petitioner has already

been allowed to superannuate and in that view of the matter the effect of

suspension order has got no force. He submits that the petitioner may

appear in the departmental proceeding and the said departmental

proceeding will contemplate within a time frame period.

8. In the light of the above submissions and the facts, the

Court has ventured to move to look into the documents annexed with the

writ petition as well as the counter affidavit and the supplementary

counter affidavit. The supplementary counter affidavit has been filed on

25.01.2021 on behalf of the respondent State wherein the charge sheet

dated 21.02.2021 has been annexed. In the said charge sheet there is no

averment to the effect as to what will be the effect of the suspension

order, however, the petitioner has been directed to participate in the

departmental proceeding. Rule 9(6)(b) of Jharkhand Government Servant

(Classification, Control and Appeal) Rules, 2016 is very clear which

stipulates that the reasons are required to be recorded. Rule 9(6)(b)

speaks of modification and revocation of the suspension order.

9. For the sake of brevity, Rules 9(6) (a), (b) and (c) of

Jharkhand Government Servant (Classification, Control and Appeal)

Rules, 2016 are incorporated hereinbelow:

"9.6(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."

10. Rule 9(6)(a) of the said Rules clearly speaks the order of

suspension may or deemed to have been made in this rule was continued

to remain in force until it is modified or revoked by the authority

competent. In the light of this rule, the contention of the learned counsel

for the respondent State is contrary to this rule. In terms of this rule, it

appears that unless the suspension order is modified and revoked it will

be deemed to be continued. It is also well settled that suspension must

be for a short duration, it has been considered by the Hon'ble Supreme

Court in the case of "State of T.N. v. Promod Kumar" (2018) 17 SCC 677

in paragraph nos.24, 25, 26 and 27, which are quoted hereinbelow:

"24. The first respondent was placed under deemed suspension under Rule 3(2) of the All India Services Rules for being in custody for a period of more than 48 hours. Periodic reviews were conducted for his continuance under suspension. The recommendations of the Review Committees did not favour his reinstatement due to which he is still under suspension. Mr P. Chidambaram, learned Senior Counsel appearing for the first respondent fairly submitted that we can proceed on the basis that the criminal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first respondent are serious in nature. However, the point is whether the continued suspension of the first respondent for a prolonged period is justified.

25. The first respondent has been under suspension for more than six years. While releasing the first respondent on bail, liberty was given to the

investigating agency to approach the Court in case he indulged in tampering with the evidence. Admittedly, no complaint is made by CBI in that regard. Even now the appellant has no case that there is any specific instance of any attempt by the first respondent to tamper with evidence.

26. In the minutes of the Review Committee meeting held on 27-6-2016, it was mentioned that the first respondent is capable of exerting pressure and influencing witnesses and there is every likelihood of the first respondent misusing office if he is reinstated as Inspector General of Police. Only on the basis of the minutes of the Review Committee meeting, the Principal Secretary, Home (SC) Department ordered extension of the period of suspension for a further period of 180 days beyond 9-7-2016 vide order dated 6-7-2016.

27. This Court in Ajay Kumar Choudhary v. Union of India has frowned upon the practice of protracted suspension and held that suspension must necessarily be for a short duration. On the basis of the material on record, we are convinced that no useful purpose would be served by continuing the first respondent under suspension any longer and that his reinstatement would not be a threat to a fair trial. We reiterate the observation of the High Court that the appellant State has the liberty to appoint the first respondent in a non- sensitive post."

11. The petitioner has already been put under suspension for

more than three months before his retirement and no revocation order or

modification of the suspension order has been passed by the competent

authority therefore, the suspension order is still there. Now the charge

sheet has been submitted and in view of the charge sheet the authority

was required to pass an appropriate order with regard to the suspension

which has not been done in the case in hand. The petitioner is ready to

co-operate and participate in the departmental proceeding. The

petitioner has already been superannuated.

12. As a cumulative effect of the above discussions, the

impugned order will not sustain in the eye of law. Accordingly, the

impugned order dated 12.05.2020 is quashed. The petitioner shall