1 IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.775 of 2009 Ram Singh s/o Sri Raj Ballabh Singh, r/o village + P.O. – Uchkagaon, District – Gopalganj …… Appellant Versus 1. The State Of Bihar through the Collector, Khagaria 2. The Sub-divisional Officer-cum-Conducting Officer, Khagaria ………. Respondents ----------- For the appellant: Mr.Jagannath Singh, Advocate For the respondents 1 & 2: Mr. Kaushal Kumar Jha, SC XVIII Mr. Krishna Chandra Jha, AC to SC –XVIII --- 2 1/9/2009 Heard Mr. Jagannath Singh, counsel for the appellant and Mr. Kaushal Kumar Jha, counsel for respondents. 2. The present appellant, who was working as Revenue Karamchari of Halka No.7 of Borne Panchayat within Choutham Circle, was placed under suspension as per order dated 11.5.2006. The charge was framed on 8.12.2006. However, since the departmental proceeding was not concluded for a long period, the appellant filed CWJC. No.5671 of 2009, praying for quashing the order of suspension. 3. The appellant had contended that no charge was framed within three months of the order of suspension and, therefore, it must be deemed to have lapsed after such 2 period. It was further submitted that even though subsequently charge was framed, the disciplinary proceedings had not been completed even after long lapse of time. 4. The learned single Judge came down heavily upon the department for not concluding the departmental proceeding even after long lapse of time and ultimately passed the order to the following effect: “It is thus clarified that if Sri Kameshwar Singh, the then S.D.O, has already stood transferred from the post of S.D.O. and therefore, is not in a position to function as an enquiry officer, the respondent, Collector of the district would appoint a new enquiry officer within a period of one month from the date of receipt/ production of a copy of this order and such enquiry officer must conclude his departmental proceeding and submit his enquiry report within a period of four months whereafter the final order will also be passed in next two months. It goes without saying that if the final order is not passed within the aforesaid period, the Collector of the district will be held solely responsible and thus will not be entitled to draw his salary after the expiry of the said period till he would pass the final order and dispose of the departmental proceedings against the petitioner.” (emphasis ours) 5. The appellant in this appeal has contended that in view of the provision contained in Rule 9(7) of the Bihar Government Servants (Classification, Control and Appeal) Rules,2005(hereinafter referred to as „the Rules‟), 3 since the charge-sheet has not been framed within three months from the date of issue of suspension order, the suspension order shall be deemed to have been revoked on the expiry of three months, particularly, when no order had been passed by the authority renewing the suspension along with reasons to be recorded in writing for the delay in framing of charge-sheet. 6. It is not in dispute that in the impugned order of the learned single Judge it was erroneously recorded that the suspension order was passed on 11.3.2006 and the charge was framed after about 9 months on 8.12.2006. However, on going through the original order of suspension, we find that the suspension order, in fact, was passed on 11.5.2006 and the charge was framed on 8.12.2006, that is to say, within a period of 7 months and not 9 months. 7. Rule 9 of the Rules, to the extent 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, 4 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) to (6) omitted as unnecessary. (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.” 8. A close examination of Rule 9(1)(a) read with Rule 9(7) makes it clear that the competent authority, as envisaged under Rule 9(1), is empowered to suspend a Government servant in contemplation of a disciplinary proceeding or when a disciplinary proceeding is already pending. 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 and if such charge sheet is not framed within the time stipulated, the suspension order shall be revoked unless the concerned 5 authority passes an order renewing the suspension for a further period of four months by recording reasons in writing for the delay in framing charge sheet. The proviso to Rule 9 (7) of the Rules, however, makes it clear that if charge sheet is not framed within such extended period of suspension, the order of suspension shall stand revoked on the expiry of such extended period. The time frame is applicable where the suspension is in contemplation of a disciplinary proceeding. No such time frame is envisaged where the suspension order is passed during the pendency of disciplinary proceeding. Similarly, no time frame is envisaged where the suspension order is passed in contemplation of the disciplinary proceeding and subsequently the charge sheet is framed. 9. The main purpose of Rule 9(7) appears to be that a person should not be kept under suspension for an indefinite period without framing of charge-sheet. If a charge-sheet is framed even after expiry of 7 months, there is no embargo anywhere on passing a fresh order of suspension by the employer. Every employer has the right to place any employee under suspension and the only right of the employee is to get the subsistence allowance as 6 contemplated in the relevant Rules. Rule 10 contemplates payment of subsistence allowance under various circumstances. 10. If the said Rule is not applicable to a particular case, the employer can still keep an employee under suspension but he would be required to be paid the full salary. 11. In the present case, the charge was not framed within the period of 3 months, but it was framed within the further period of 4 months and the suspension order continued to be in force and the suspension allowance of 50% was being paid to the present appellant. It is, of course, true that after the expiry of three months, no specific order extending the suspension was passed nor any reason was recorded. But, at that stage, after the expiry of three months, the present appellant did not challenge the suspension order on the ground of violation of Rule 9(7). Therefore, if we accept the said contention of the appellant at this stage, though the appellant had acquiesced in the order of suspension and was accepting the subsistence allowance, he would automatically be entitled to be paid the entire salary of the relevant period. 7 12. In these circumstances, we are unable to accept the contention of the appellant that the suspension order shall be deemed to have been revoked on the expiry of three months. 13. The next question is regarding completion of the departmental enquiry. The learned single Judge has rightly expressed his anguish in view of non-completion of the departmental enquiry within a reasonable period and, therefore, has given a time frame for completion of the departmental enquiry. However, the counsel for the appellant has expressed apprehension and, in our view, with some justification that if the direction relating to non- payment of the salary of the Collector would be kept intact, the higher authority would possibly be vengeful against the present appellant and he may not get justice in the departmental proceeding. Therefore, even if such order does not directly affect the appellant, the counsel has submitted for deletion of the said direction. Though we fully uphold the sentiment and deep anguish expressed by the learned single Judge, yet, on the request of the learned counsel for the appellant, we are inclined to delete that part of direction of the learned single Judge. 8 14. Learned counsel for the appellant further submitted that since the departmental proceeding had continued for a period of more than one year for no fault on the part of the appellant, the subsistence allowance should have been paid at a higher rate as contemplated under Rule 10. Since the said matter was not agitated earlier on behalf of the appellant, we would not like to deal with the same aspect. However, it is left to the appellant to make a representation before the competent authority, which would be considered keeping in view the sentiment highlighted in Rule 10 of the Rules. 15. Similarly, the counsel for the appellant has also submitted that suspension for a long period is not in the interest of the employee as well as the department and should be revoked. This matter is also left to be dealt with by the departmental authority and the appellant may make representation regarding revocation of his suspension which will be considered by the departmental authorities keeping in view all the relevant aspects. 16. With the above modification in the impugned order, the appeal is disposed of. It is made clear that the departmental proceeding should be concluded 9 within the time indicated by the learned single Judge. If such proceeding is not concluded within the time framed, then it would be open for the present appellant to file a fresh writ petition for revocation of his suspension. Neyaz/- AFR (P.K. Misra, C.J.) (Anjana Prakash, J.)