Manoj Kumar Singh vs The State Of Bihar
2021 Latest Caselaw 775 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.8467 of 2020
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Manoj Kumar Singh, S/O Karu Singh, Resident Of Village-Birnaudha, P.S. Shambhuganj, District-Banka at present resident at Lalita Devi Lane, Choti Khanjarpur, Bhagalpur

... ... Petitioner/s Versus

1. The State of Bihar, through the District Magistrate, Banka

2. The District Magistrate, Banka

3. The Senior Additional Collector, Banka

4. The Deputy Collector (Establishment), Banka

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Ray Saurabh Nath, Advocate For the Respondent/s : Mr. Ravi Verma, A.C. to G.P.-4 ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 09-02-2021

Heard learned counsel for the petitioner as well as the

learned State Counsel.

2. The learned State Counsel, at the very outset,

submits that the complete brief has not been served upon him as

the Annexures are wanting in the copy of the writ petition served

on the counsel for the respondent-State. The same is disputed by

the petitioner's counsel. He submits that the entire brief along with

all the Annexures was transmitted by electronic mode to the office

of the learned Advocate General at the time of filing of the writ

petition. If incomplete copy of the brief has been handed over to Patna High Court CWJC No.8467 of 2020 dt.09-02-2021

the counsel to whom the brief has been assigned, the fault lies in

the office of the learned Advocate General.

3. The said issue is not being pursued by this Court as

the office of the learned Advocate General has not raised any

objection with regard to any incomplete brief being transmitted

through electronic mode prior to handing over the same to the

learned State Counsel.

4. The petitioner seeks quashing of the order dated

21.05.2020, issued by the District Magistrate, Banka, by which the

petitioner has been continued under suspension and has been

communicated the decision that proceedings would be conducted

against him under the provisions of the Bihar Government

Servants (Classification, Control & Appeal) Rules, 2005

(hereinafter referred to as "the CCA Rules") upon its remand under

order dated 25.07.2019 passed on the petitioner's earlier writ

petition, bearing CWJC No.18401 of 2017.

5. Counsel for the petitioner submits that the order of

the Collector, Banka purports to place the petitioner under

suspension with retrospective effect. Such order is unsustainable in

the eyes of law as there can be no suspension with retrospective

effect and that also having effect since such a long time prior to its

issuance i.e., since 03.02.2017. The submission is founded on Patna High Court CWJC No.8467 of 2020 dt.09-02-2021

decision of a co-ordinate Bench of this Court in the case of

Ashwani Kumar Vs. State of Bihar, decided in CWJC No.24500

of 2019.

6. The learned State Counsel has addressed the Court

on legal issue and has submitted that the order is in accordance

with Rule 9(5) of the CCA Rules, 2005. The same is based on the

fact that this Court in CWJC No.18401 of 2017 has remanded the

matter to the authority for conducting fair and proper enquiry. The

District Magistrate thereafter has decided to hold further enquiry

against the petitioner. Under such circumstances, Rule 9(5) of the

CCA Rules contemplates that 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.

7. This Court would consider it useful to quote Rule

9(5) of the CCA Rules, which reads as follows:

"9(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 Patna High Court CWJC No.8467 of 2020 dt.09-02-2021

and shall continue to remain under suspension until further orders."

8. The original order of dismissal in this case is dated

03.02.2017. The same has been set aside/quashed in the

petitioner's earlier writ proceedings arising out of CWJC

No.18401 of 2017 and the matter remanded to the respondents for

conducting enquiry after giving proper opportunity to the

petitioner. The District Magistrate thereafter has decided to hold

further enquiry against the petitioner. In view of the provisions of

Rule 9(5) of the CCA Rules (supra), suspension of the petitioner

from the date of the original order of dismissal (03.02.2017) does

not suffer from any infirmity. It is, in fact, in accordance with the

procedure prescribed under Rule 9(5) of the CCA Rules.

9. As regards judgment of this Court in the case of

Ashwani Kumar (supra), this Court would observe that the same

is distinguishable on facts, inasmuch as in that case, suspension

order with retrospective effect was issued after this Court had

already quashed the order of punishment and directed for re-

instatement of the petitioner therein, with all consequential

benefits.

10. That is not the case here. In the instant case, this

Court in the earlier writ proceedings had remanded the matter and

upon such remand, the provisions of Rule 9(5) of the CCA Rules Patna High Court CWJC No.8467 of 2020 dt.09-02-2021

came into play; and have rightly been relied upon to proceed

against the petitioner after placing him under suspension with

effect from the date of his earlier termination. No grounds are

made out for quashing the order of suspension dated 21.05.2020.

11. The petitioner's counsel at this juncture has

submitted that the petitioner has not been paid even his subsistence

allowance.

12. There is no averment in the writ petition that after

the petitioner was placed under suspension on 21.05.2020, he has

joined the headquarters assigned to him at the Block Office in

Banka or he has requested the District Magistrate, Banka for

payment of subsistence allowance. The petitioner cannot be

deprived of his subsistence allowance having been placed under

suspension. The petitioner would be entitled to payment of

subsistence allowance, in accordance with law. For the same, he

may approach the Collector. Upon his claim being raised before

the Collector, the same is to be considered and payments due and

admissible under the head "subsistence allowance" to be made, in

accordance with law, expeditiously and preferably within two

weeks from the date of such application having been submitted by

the petitioner.

13. The writ application stands disposed of. Patna High Court CWJC No.8467 of 2020 dt.09-02-2021

14. This Court would expect that the petitioner's

counsel would honour his undertaking in the instant proceedings

regarding supply of the requisite court fee etc. within two weeks

from the date he is called upon to do so by the office.

                                               (Madhuresh Prasad, J)
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