Santosh Kumar vs The State Of Bihar
2021 Latest Caselaw 412 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5864 of 2020
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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

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. 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

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

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

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

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

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

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

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

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

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

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
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Uploading Date                09.02.2021
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