IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11960 of 2008 RENU SINHA @ RENU KUMARI SINHA Wife of – Mahesh Prasad Resident of –Moh:-Balba, P.O.-Balba, P.S.-Saharsha Town,Town & District-Sharsha. ………………….. Petitioner Versus 1. The State of Bihar 2. Principal Secretary - Cum- Commissioner Department of Social Welfare Govt. of Bihar, New Secretariat Baily Road, Patna. 3. Director, Welfare Govt. of Bihar, New Secretariat Baily Road, Patna. 4. Commissioner, Patna Commissionary, Patna. 5. Deputy Director Welfare Patna Commissionary, Patna. 6. District Welfare Officer, Nalanda. …………………… Respondents For the Petitioner :- L.N. Das, Advocate Mr. Akhilesh Datta Verma, Advocate For the State :- Mr. Satyadeo Kumar(SC 12) ******** 3 21.05.2009 Heard counsel for the petitioner and counsel for the State. The challenge in this writ petition to an order of suspension dated 11th of October, 2007 is based only on one ground namely that after the petitioner was released from judicial custody the impugned order of suspension had lost its force in terms of Rule 9(2)(b) of Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, hereinafter referred to as the Rules. 2 Mr. L.N. Das, learned counsel for the petitioner while making this submission has made a threadbare discussion of Rule 9(1), Rule 9(2) and Rule 9(3) as well as Rule 9(7) to contend whenever a persons is suspended on account of being taken into custody his/her suspension must be deemed to have come to an end after his release from custody and if thereafter one has to put under suspension, a fresh order has to be passed in terms of 9(3)(ii) of the Rules. Counsel for the State on the other hand would submit that the impugned order being the office order dated 11th of October, 2007 is one under Rule 9(1)(c) of the Rules and therefore there was no requirement of passing a fresh order of suspension. He would further submit that had the petitioner not been suspended before being taken into custody and could have been taken to be under deemed suspension in terms of Rule 9(2) and if the Government thereafter on her release wanted to continue her in suspension, the Government was required to pass such an order in terms of Rule 9(3) but then if the Government in beginning had already passed an order of suspension under Rule 9(1)C) 3 there was no need to pass any fresh order of suspension. In the opinion of this Court, counsel for the State seems to be correct. Rule 9(1) of the Bihar Government Servants (Classification, Control and Appeal) Rules reads as follows:- “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 which- (a) a disciplinary proceeding against the government servant is contemplated or is pending, or (b) in the opinion of the authority aforesaid, 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. From the reading of aforementioned Rule 9(1) it would be clear that the competent authority/controlling authority has power to suspend the government servant in three eventualities including during the pendency of 4 investigation, enquiry or trial of a criminal case. Such exercise of power not being dependent or controlled by Rule 9(2) or Rule 9(3) in fact, can be exercised against any government servant facing criminal prosecution at any stage of criminal case and it is not necessary that for exercise of power the government servant must be in Jail (judicial custody). Mere pendency of a criminal case is good enough for exercise of power under Rule 9(1)(C) of the Rules. As against the aforesaid wide and general power of suspension the scope of Rule 9(2) is quite restricted inasmuch as Rule 9(2) provides inter alia:- (2) A government servant shall be deemed to have been placed under suspension by an order of appointing authority with effect from the following date:- (a) from the date of his or her detention, if he or she is detained in custody, whether on a criminal charge or otherwise for a period exceeding forty-eight hours; (b) from the date of his or her conviction, if, in the event of a conviction for an offence he or she is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation.-The period of forty- eight hours specified in clause (b) of this sub-rule shall be computed from the date of commencement of the imprisonment after the conviction and for this purpose intermittent 5 periods of imprisonment, if any, shall be taken into account. The clear intention of the framers of Rules while making provision for deemed suspension under Rule 9(2) was to only create a fictional situation in which on account of the government servant being in Jail or judicial custody beyond 48 hours was to be deemed to be placed under suspension. No order of deemed suspension is required to be passed in terms of Rule 9(2) as it is automatic by operation of law which begins from the period of being taken in custody and comes to an end as soon as the government servant on being released from Jail rejoins his duty . It is in fact for this category of persons who would be deemed to be placed under suspension in terms of Rule 9(2) that the Rule makers had provided another separate rule under Rule 9(3) which reads as follows:- (3)(i) After the custody period under sub-rule(2), the period of deemed suspension shall be deemed to end when the government servant gives his joining and the joining shall be accepted. (ii) If a decision is taken to suspend the government servant again under sub-rule (1)(a), or (b) or (c), then such action may be taken only after acceptance of joining and by issuing a separate order. 6 Rule 9(3)(ii) therefore only gives residuary power to Government to place such person under suspension who had been taken into custody and were thus deemed to have been placed suspension in the period of their judicial custody. Thus when such person on release from Jail would rejoin his duty bringing an end to his deemed suspension could still be placed under suspension with the help of Rule 9(3)(ii) and therefore strictly speaking while Rule 9(1)(C) in the genus and source of power of suspension for all government servant facing criminal prosecution, Rule 9(3)(ii) is only a species confined to a category of government servant who on account of being taken into custody were deemed to have been paced under suspension and such provision would be made applicable to such government servant against whom no order of suspension had been passed earlier. It is only an enabling power for them to be placed, for being continued under suspension. The answer to the submission of the learned counsel for the petitioner that the impugned order of suspension would be deemed to have inoperative on account of release of the 7 petitioner from jail custody is equally misconceived in view of the following provisions made in Rule 9(6) of the Rules which reads as follows :- “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.” This aspect of the matter in fact stands well settled even in terms of the earlier service rules which were in force prior to 2005 rules. In fact a Division Bench of this Court in the case of Dr. Kapil Singh Vrs. The State of Bihar & anr. reported in 1982 BBCJ 332 had noticed some what the similar argument as with regard to automatic revocation of order of suspension on release from jail custody in 8 terms of Rules 99 and 100 of the Bihar Service Code read with Rule 49(A) of Civil Services (Classification, Control and Appeal) Rules, 1930. The Division Bench in fact had gone to hold that in terms of Rule 49(A)(1),(2) and (5) which is parameteria Rule 9(1)(2)(6) of the present Rules, had vested power in the competent authority to place the government servant under suspension during the pendency of investigation, enquiry or trial of a criminal case and thus merely because the Government servant was released on bail after under going judicial custody would not entitle him to claim revocation of order of suspension. In this regard it would be useful and apt to quote following passages of the judgment of Dr. Kapil Singh(supra):- “10 In the said Rules, Rule-49A was introduced by a Notification No. 12110-P dated the 8th August, 1973. The relevant portion of the said Rule- 49A is as follows:- “Rule 49A(I): The appointing authority or any authority to which it is subordinate or the governor by general or special order, may place Government servant under suspension:- (a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial. (2) A Government servant shall be deemed to have been placed under 9 suspension by an order of appointing authority- (a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty eight hours; (b) with effect from the date of his conviction if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction. Explanation: The period of forty- eight hours referred to in clauses (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. (3)………………………. (4)………………………. 5(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 to do so…………” Clauses 9(a) and (b) of Sub-rule (1) of the aforesaid Rule provide that a Government servant may be placed under suspension where disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation, inquiry or trial. Clause (a) of Sub-rule (2) of the aforesaid Rule also says in specific words that a Government- servant shall be deemed to have been placed under suspension with effect from the date of the detention, if he is detained in custody, whether on a criminal charge or otherwise for a period exceeding forty-eight hours. In view of the aforesaid statutory provisions it has to be held that a Government-servant can be suspended not only when a departmental proceeding is pending but even when it 10 is contemplated. Similarly if he is under detention for more than forty- eight hours, then also he shall be deemed to be under suspension. 11. Clause (a) of Sub-rule (2) of Rule 49A aforesaid is similar in sone respect to Rule 99 of the aforesaid Code. But, in view of Sub-rule (5)(a) of Rule 49A, which says that order of suspension made or deemed to have been made under that Rule “shall continue to remain in force until it is modified or revoked by the authority competent to do so.”, in my opinion, it is not possible to hold that an order of suspension under sub- rule(2)(a)cases to be operative no sooner the persons concerned its released from custody. It need not be pointed out that when sub rule (5)(a) speaks in respect of an order of suspension made or deemed to have been made, it covers orders under Sub- rule(1) as well as Sub-rule( ) of Rule 49A. As such, if the impugned order is construed to be an order under Rule 49A (2)(a) then merely because the petitioner has been released from custody, it can not be held that the said order of suspension has automatically been revoked like an order under Rule 99 of the Code. There is no dispute that the petitioner is either in Class-I or Class-II service of the State Government. Incidentally, I may point out that by the aforesaid Notification dated the 3rd July, 1963, the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935, which governs cases or Class-III and Clause –IV employees of the State Government have also been included in the schedule there of. Even in the aforesaid Bihar and Orissa Subordinate Services (Discipline and Appeal)Rules, 1935 which governs cases of class-III and class-IV employees of the State Government, Rule 3A containing identical provisions to Rule 49A of the aforesaid Rules, have been introduced by a Notification No. 11 12111-P, dated the 8th August, 1973. As such, irrespective of the fact to which category of service the petitioner belongs, if the order is not under Rule 99 of the said Code, the petitioner shall be under suspension even after his release from custody, unless such order is recalled by the competent authority. 12. The impugned order, as I have already pointed out, says that as the petitioner had been taken in custody, he was being suspended with effect from 25.9.1981 till further orders. This order was passed on 28.10.1981 and it was made operative with effect from 25.9.1981 the day the petitioner was taken in custody. In may opinion, this order is in terms of clause (a) of Rule 49A(2) of the aforesaid rules, which says that a Government-servant shall be deemed to have been placed under suspension “with effect from the date of his detention”, Rule 99 authorizes the authority concerned to suspend a Government-servant who is detained in custody “until he is released from detention”. If the order was under Rule-99, there was no question of issuing the same, when, on the date it was issued, the petitioner had been released from custody. While contending that the impugned order will be deemed to be an order under Rule 99 of the said Code, the learned counsel pointed out that towards the end of the order it has been mentioned that the petitioner shall get subsistence allowance in accordance with Rule 96 of the Code which means even the order of suspension was under Rule 99 of the said Code. It is an admitted position that there is no provision other than Rule 96 governing such government servants, regarding subsistence allowance during the period of suspension. As such by mere reference to Rule 96 in connection with subsistence allowance, that order can not be held to be an order under Rule 99 of the aforesaid Code.” 12 This Court in fact is of the opinion that the rules now framed in the year 2005 has only incorporated the essence of Rule 99 and Rule 100 of the Bihar Service Code as also Rule 49(A) of the Civil Services (Classification, Control and Appeal) Rules, 1930 and therefore, there would be no scope from the inevitable conclusion that if a government servant during the pendency of a criminal case is placed under suspension, his or her release from judicial custody would not automatically entitle him or her to get the relief of revocation of suspension order. The scope of Rules 9(1),9(2) and 9(3) of the Rules therefore are totally different and the submission of the learned counsel for the petitioner that no sooner the petitioner was released from jail custody on 6.11.2007 and had submitted her joining report on 7.11.2007, her order of suspension dated 11.10.2007 came to an automatic end must be rejected. The order dated 11.10.2007 was passed in terms of Rule 9(1)(C) recording this fact that the petitioner had been taken into custody in connection with a serious offence of taking bribe and therefore 13 she was placed under suspension by an order “till further order”. As a matter of fact, if the petitioner by virtue of not being placed under suspension in the period of her jail custody would have been deemed to be only placed her under suspension without being any specific order, the respondents were required to pass a fresh order after her release from judicial custody but in the facts of the present case when the petitioner was placed under suspension by specific order on 11.10.2007 its life could not have come to an end only because the petitioner got release from jail custody. Such suspension order in fact would continue till it is revoked by the competent authority in terms of Rule 9(6)(a) of the Rules. It has to be also appreciated that the said order of suspension not only records the seriousness of the allegation against the petitioner of being apprehended of being caught red handed while accepting illegal gratification of a sum of Rs. 5,000/- by the vigilance police on 17.08.2007 but also records that her suspension being so ordered would continue till further order and even after 14 release her from jail custody she would continue under the order of suspension by reporting in the office of Deputy Director of Welfare of Patna Division during the period of suspension. It is thus clear that the order of suspension was passed strictly in terms of Rule 9(1)(c) of the Rules and would remain enforce till it is revoked by the competent authority. The prayer of the petitioner for revoking the order of suspension dated 11.10.2007 with effect from 7.11.2007, the date on which she was released from judicial custody and for payment of her full salary with effect from 7.11.2007 is thus wholly misconceived and must be rejected. That being so, this Court would not find any merit in this writ application and same must be and is hereby dismissed. Patna High Court dated 21st May,2009 Bibhash/A.F.R. (Mihir Kumar Jha, J.)