IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 7190 of 2002 DR.MAYA SHANKAR THAKUR, son of late Nageshwar Thakur, Resident of Village-Bakhari, P.O, Janardanpur, P.S. Kalyanpur Distt. Samastipur At present posted as Medical Officer, Addl. Health Centre, Surhachatti, Darbhanga District-Darbhanga. ......Petitioner. Versus 1. The State of Bihar through the Commissioner Cum-Secretary, Department of Health Family Welfare, Government of Bihar, Patna. 2. Deputy Secretary Cum-Chief Vigilance Officer, Department of Health, Medical Education and Family Education and Family Welfare Government of Bihar, Patna. 3. Under Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 4. Additional Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 5. Smt. Katherin Lakra, Deputy Secretary Cum- Conducting Officer, Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna. 6. Civil Surgeon Cum-Chief Medical Officer, Katihar. 7. The Under Secretary (Personal Claim and fixation Cell) Pant Bhawan, Patna. ... Respondents --------- For the petitioner. … Mr. G. K. Jha, Adv. For the State … S. C. I ----------- PRESENT HON’BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (16.09.2010) Heard Mr. Gajendra Kumar Jha-2, learned counsel for the petitioner and learned counsel for the State. 2 2. The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application for issuance of an appropriate writ, order of direction, directing the respondents particularly respondent No.2 to re-fix the basic pay of the petitioner on the date of revocation of suspension by taking into account the earning of yearly increment continuously even during the period of suspension i.e. from 09.3.1994 to 14.12.1999 and accordingly to pay the differential amount payable during the period of suspension and from the date of revocation of suspension as well as the current full salary for which the petitioner is legally entitled to under the relevant Rules and that of the declared principle of law which arbitrarily and illegally been denied to the petitioner suo motto is also evident from statement of suspension allowances and that of the pay bill dated 21.3.2001, issued on joining the post after revocation of suspension and order of posting.” 3. Mr. Jha, learned counsel appearing on behalf of the petitioner has submitted that when the petitioner was placed under suspension in contemplation of a departmental proceeding on 9.3.1994 vide annexure-1 to the writ application and his such suspension was revoked by an order dated 8th February 2000 in keeping with the observation made in the order of this Court dated 3.8.1999 in CWJC No. 6527 of 1999, the petitioner would also be 3 entitled for payment of his full salary with all increments of the period of suspension, but the authorities while fixing the pay of the petitioner after revocation of suspension have not granted increments for the years 1994 to 1999 and that is how the petitioner is perennially suffering the monetary loss. Mr. Jha, in this context has placed reliance on the judgment of Apex Court in the case of Balvantrai Ratilal Patel vs. State of Maharastra, reported in AIR 1968 SC 800 as also in the case of Mritunjai Singh vs. State of U. P. & Ors. reported in AIR 1971 Allahabad 214 to buttress his submission that suspension per se does not disentitle an employee from getting the increments of the suspension period. 4. Counsel for the State, on the other hand, would submit that while the petitioner’s departmental proceeding was yet to be concluded by passing a final order on the Enquiry Report submitted by the Enquiry Officer, a substantive Criminal Case for the some of the same charges of misconduct relating to petitioner’s involvement in M.S.D. Scam cases had been filed and that is how the authorities in compliance of the order of this Court dated 3.8.1999, when 4 they had failed to conclude the departmental proceeding, they had revoked the suspension of the petitioner w.e.f. 14.12.1999 by an order dated 8.2.2000 by inserting a clause therein that the issue of treating the period of suspension as also punishment, if any, in the departmental proceeding would be considered only after disposal of the aforesaid criminal case. He would, accordingly, rely on the provision of Rules 83 and Rule 85 of the Bihar Service Code to contend that the petitioner will not be entitled to get increment for the period of suspension till a final decision is taken in the departmental proceeding which is also awaiting the result of the criminal case. In this context, he has placed reliance on the judgment of the Apex Court in the case of R. P. Kapur vs. Union of India and another, reported in AIR 1964 SC 787. 5. In the opinion of this Court, the petitioner’s grievance to the extent of his being deprived increment for the period of suspension even after expiry of the period of 10 years of revocation of order of suspension is justified. The petitioner was placed under suspension in contemplation of a departmental proceeding as is clear from 5 the wording of the order of suspension dated 9.3.1994 wherein it was mentioned that a memo of charge for drawing departmental proceeding was being issued simultaneously. It is not in doubt that such memo of charge initiating departmental proceeding was issued on 24.3.1994. These charges were also related to the financial impropriety committed by the petitioner with regard to purchase of medicine from Medical Store Depot, Calcutta (MSD). In this context, it has to be noted that out of eight charges while charge no. 1, 2 and 3 was with regard to MSD scam, charges no. 4 to 8 were in connection with certain alleged misconduct on the part of the petitioner in misappropriating the amount of provident fund including giving advance to some of his subordinate employees in contravention of the Government Rules. Thus it cannot be said that the entire departmental proceeding against the petitioner was based only on the charges of MSD scam. It is also not in doubt that if in the said departmental proceeding a number of Enquiry Officers were appointed but such departmental proceeding did not make any headway at least till 14.7.1999 on which date the petitioner had filed an exhaustive representation for 6 expediting his departmental enquiry. There is nothing on record to show that such departmental proceeding was concluded before the petitioner had moved this Court in CWJC No. 6527 of 1999 assailing the order of suspension but then counsel for the petitioner has informed this Court that subsequently such departmental proceeding was concluded and the Enquiry Officer had also submitted his report in February 2000, but no final order was passed thereon and only the order of suspension was revoked by putting a condition that a final decision with regard to period of suspension would be taken after conclusion of the criminal case. 6. In the light of the aforementioned admitted facts, the first question would be as to whether a Democle sword can be kept hanging on an employee for an indefinite period on the ground of mere pendency of a departmental proceeding or a criminal case ? Admittedly, the petitioner was placed under suspension for certain misconduct for which a departmental proceeding was also undergone. The same however was left in the midway after submission of the enquiry report. Had the authorities 7 concluded the departmental proceeding by passing a final order, they were also obliged to decide the treatment of period of the suspension in terms of Rule 97 of the Bihar Service Code which reads as follows:- “97. (1) When a Government servant who has been dismissed, removed, or suspended is reinstated, the authority competent to order the reinstatement shall consider and make specific order— (a) regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) where the authority mentioned is sub-rule (1), is of the opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government Servant shall be given full pay and allowance to which he would have been entitled, had he not been dismissed, removed or suspended as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowance as such competent authority may prescribe: Provided that the payment of allowance under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) in a case falling under clause (3) the period of absence from duty shall not 8 be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.)” 7. The grievance of the petitioner therefore that the fate of criminal case should not have been clubbed together with the result of the departmental proceeding for depriving the petitioner the benefit of increment has some justification. 8. There can however be no bald proposition of law, as was asserted by Mr. Jha, that the employee as a matter of right would be entitled for grant of increment during the period of suspension inasmuch as unless there is an order for treating the period of suspension as spent on duty the employee cannot earn increment as would be borne out from perusal of the provisions of Rule 83 and 85 of Bihar Service Code which reads as follows:- “83. An increment shall ordinarily be drawn as a matter of course, unless it is withheld. The authority empowered to make a substantive 9 appointment to the post which a Government servant holds may, if it considers that the conduct of such Government servant has not been good or that his work has not been satisfactory, withhold an increment from him. In the Police Department, Deputy Inspector Generals are empowered to withhold the increments of Sergeants major, Inspectors, Sergeants and Sub-Inspectors and Superintendents are empowered to withhold the increments of Sergeants and Sub- Inspectors. In ordering the withholding of increments, such authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments. 85. The following provisions prescribe the conditions on which service counts for increment in a time-scale:- (a) All duty in a post on a time scale counts for increments in that time- scale; (c) The following periods count for increments in the time-scale of a post in which a Government servant has been appointed to officiate, if he returns or is re- appointed to officiate in the same post, or is appointed or re-appointed to a post in the same time scale of pay- (i) officiating service in a post on higher pay; (ii) service in a temporary post on higher pay; (iii) service on deputation; (iv) foreign service; and (v) all leave other than extraordinary leave (b) the following periods count for increment in the time-scale of post on which the Government servant concerned holds a lien, as well as in the time-scale of the post or posts, if any on which he would hold a lien, had his lien not been suspended;- 10 (i) service in another post other than a post carrying less pay referred in the clause (a) of rule 56, whether in a substantive or officiating capacity; (ii) service on deputation; (iii) foreign service; and (iv) all leave other than extraordinary leave.” 9. To that extent, the reliance placed by Mr. Jha on the judgment of the Apex Court in the case of Balvantrai (supra) is also misplaced inasmuch as in the said judgment the Apex Court while discussing the effect of order of suspension had made a passing reference to the issue of payment of salary for the period of suspension but then it went on only to decide the main issue as to whether on account of acquittal in a criminal case the continuing order of suspension could come to an end so as to make the person entitled for payment of full salary for the period of suspension. The Apex Court in fact had gone to hold that the order of suspension of the petitioner in that case did not come to an end on the date of his acquittal by the Court and therefore also did not lay down any law with regard to grant of increment during the period of suspension. 10. The next judgment of Allahabad High Court relied by Mr. Jha in the case of Mritunjay Singh 11 (supra) is clearly distinguishable on fact. In that case, the Allahabad High Court was only considering the continuing effect of suspension as also the concept of such suspension in depriving payment of salary during the period of suspension. The Allahabad High Court therefore had proceeded that earning of increment was a matter right in terms of Rule 25 of Financial Hand Book Volume-11 issued by the Government of U. P. and had proceeded to hold that as contract of service of the petitioner with the State in that case had still been continuing during the period of suspension, he would be also entitled for grant of increment inasmuch as no final order of punishment has been passed in that case. 11. Moreover in the opinion of this Court, apart from the different statutory provision of Rule 25 of Financial Hand Book of Govt. of U. P. referred in the case of Mritunjai Singh (supra) and absence of a similar provision as in Rule 85 of Bihar Service Code the facts also are totally distinguishable. Mritunjai Singh, the petitioner before the Allahabad High Court was in fact still continuing in suspension on account of the departmental proceeding and 12 therefore the issue arose with regard to payment of subsistence allowance inasmuch as the order of suspension had mentioned that he would earn one-third of pay plus dearness allowance by way of subsistence allowance during the period of suspension. The position in this case is absolutely different inasmuch as the order of suspension has already come to an end and now only a final decision has to be taken in the departmental proceeding followed by an order in terms of Rule 97 of Bihar Service Code as to how the period of suspension has to be treated. The authorities have taken a view that such an order will be passed after conclusion of the criminal case inasmuch as few of the charges are common in the departmental proceeding as also in the criminal case relating to MSD Scam. 12. Considering however the aforementioned scope of Rule 83 and 85 of Bihar Service Code that no employee can be deprived of his increment for an indefinite period and the treatment of the period of suspension of the petitioner will have full bearing on his earning of increments which is squarely dependant on the result of the departmental proceeding, this Court would find it more 13 expedient in the interest of justice to direct the authorities to conclude the departmental proceeding wherein an enquiry report is said to have already been submitted as is clearly asserted in paragraph 13 of the writ application and not controverted by the authorities in their counter affidavit, without awaiting the disposal of the criminal case against the petitioner. The order of suspension dated 9.3.1994 against the petitioner having been passed only in contemplation of departmental proceeding, its fate cannot be clubbed with the criminal case inasmuch as the petitioner was never placed under suspension on account of pendency of the criminal case. 13. One thing, however, has to be also looked into by the authorities while deciding the treatment of the period of suspension of the petitioner in terms of Rule 97 of Bihar Service Code inasmuch as during the period of suspension i.e. 9.3.1994 to 8.2.2000, the petitioner was taken into custody in connection with the aforesaid criminal case and had remained in custody beyond 48 hours and as such he will be deemed to have been also placed under suspension under Rule 100 of Bihar Service Code and in that 14 event the petitioner’s such suspension will have something to do with the fate of the criminal case. However, as the order dated 8.2.2000 revoking the order of suspension of the petitioner does not in any way spell out the reason of the petitioner being arrested in the criminal case for withholding the decision of the period of suspension, this Court would hold that the moment, a final order is passed disposing of the departmental proceeding a final order with regard to also payment of his salary with increment for the period of his suspension must be taken in terms of Rule 97 read with Rule 85 of Bihar Service Code inasmuch as such increment ordinarily has to be paid to an employee as a matter of course to every employee unless it is withheld by a specific order of punishment or by treating the said period of suspension of an employee to have not been spent on duty. It is only when and if a decision for withholding of the increment of the petitioner is taken or an order is passed for not treating the period of suspension as spent on duty that the petitioner would be deprived from earning his increments for the period of suspension. Thus a clear decision has to be taken for treating the period of suspension 15 of the petitioner in terms of Rule 85 of Bihar Service Code as to whether he would be treated on duty. As such a decision will be dependent on the quantum of final punishment, if any, passed in the case of the petitioner in the departmental proceedings the authorities in terms of Rules 83, 85 and 97 of Bihar Service Code are definitely required to take their final decision for grant of increment to the petitioner for the period of his suspension. Since this exercise has not been done in the case of the petitioner till date on account of pendency of the criminal case against him, this Court would direct the competent authority to pass a final order in the departmental proceeding as also thereafter take a decision as to how the period of suspension of the petitioner has to be treated in terms of such final order disposing of the departmental proceeding which itself would lead to consequential steps for release of increment of the petitioner of the period of his suspension as is permissible in law where at best the petitoner’s period of deemed suspension on account of his remaining in jail custody beyond 48 hours in terms of Rule 100 of Bihar Service Code would not qualify as period spent on duty till 16 his clean acquittal in the pending criminal case against him. Such an exercise however must be completed within a period of six months from the date of receipt/production of a copy of this order. 14. Let it be noted that other grievance of the petitioner as raised in this writ application has already been ventilated and therefore the respondents have now only to decide the question of grant of increment for the period of suspension in the manner indicated above. 15. With the aforementioned observation and directions, this writ application is disposed of. Patna High Court Dated 16th September 2010 AFR/kanchan ( Mihir Kumar Jha, J.)