IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19742 of 2010 JAGDISH PRASAD, S/O LATE RAMPAD DAS, RESIDENT OF VILLAGE/MOHALLA-SANDALPUR, P.O. MAHENDRU, P.S. BAHADURPUR, DISTRICT PATNA--------------------------------------------------------PETITIONER Versus 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 2.THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT AND HOUSING DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3.THE PATNA MUNICIPAL CORPORATION THROUGH ITS MUNICIPAL CORPORATION, DISTRICT PATNA 4.THE MUNICIPAL COMMISSIONER, PATNA MUNICIPAL CORPORATION, PATNA-----------------------------------------------------------------------RESPONDENTS ----------- For the petitioner :M/S Mahendra Prasad Gupta Brajesh Kumar, Advocates For the Patna Municipal Corpn:Mr.Bishwa Bibhuti Kumar, Advocate For the State :Mrs. Abhanjali, AC to G.P.16 ----- 4. 17.01.2011 Heard learned counsel for the petitioner, learned counsel for the respondent Municipal Corporation and for the State of Bihar. The petitioner seeks quashing of the Memo No.1485 dated 8.9.2010 issued by the Municipal Commissioner, Patna Municipal Corporation, Patna by which he has been suspended with immediate effect and his headquarter has been fixed at City Circle, Patna. Learned counsel for the petitioner has confined his submission only to the applicability of Rule 9(7) of the 2 Bihar Government Servants (Classification, Control and Appeal) Rule 2005, which is in the following terms : “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.” It is submitted by learned counsel that the petitioner was suspended by Memo No.1485 dated 8.9.2010 issued by the Municipal Commissioner on the ground of negligence in cleaning the garbages of the locality on the basis of the report of the Executive Engineer, Bankipur Division, Patna. It is further submitted that the petitioner thereafter filed his representation dated 11.12.2010 for releasing him from suspension. It is contended by learned counsel that the charge-sheet not having been issued to the petitioner within three months of the order of suspension the same would stand automatically revoked in terms of Rule 9(7) of the aforesaid Rules as laid down by a Full Bench of this Court in the case of the State of Bihar & Ors. 3 vs. Gyan Kumar Ram & Ors. :2009(4) PLJR 272, in paragraphs 19 & 20 of which the said proposition has been laid down : “19. Taking a leaf out of the above decisions of the Supreme Court and keeping in view the subtle distinction in the language in Rule 9(7) on the one hand and in proviso to Rule 9(7) and Rule 9(6) on the other, it would reasonable to construe that on failure of the part of the competent authority to frame charge-sheet within three months, the concerned employee gets a right „to seek for reinstatement‟. If he exercises the right by filing appropriate application either before the competent authority or even in a court of law, the order of suspension is bound to be revoked and the competent authority cannot have any other option. However, if the employee fails to exercise such right of being reinstated and either the charge-sheet is framed or the order of suspension is renewed for reasons to be recorded in writing as envisaged in Rule 9(7), „the imperfect right‟ of the suspended employee gets defeated. In other words, the employer has the authority to pass an order renewing the suspension for reasons to be recorded in writing not only within the period of three months, but also after the expiry of such period of three months, provided the employee has failed in the meantime to exercise his right of being reinstated by making appropriate applications. 20. In view of the above analysis, our conclusions are as follows :- (a) The time framed 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 4 in Rule 9, the time framed 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 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.” 5 In the counter affidavit filed on behalf of the respondent Corporation the aforesaid facts are not denied but it is stated that the Executive Engineer has sent recommendation for initiating departmental proceeding along with the copy of the Form „Ka‟. It thus stands admitted that no charge-sheet had been framed within three months from the date of issue of suspension order and, as a matter of fact, the same has not been framed till date. From a perusal of the decision of the Full Bench in Gyan Kumar Ram‟s case (supra) it is evident that it has been held that on failure of framing charge-sheet within the stipulated period of three months the concerned employee has a right to be reinstated in service provided before any charge-sheet is framed or order extending the period of suspension is passed, he has filed his claim for revocation of suspension; and such right, according to the Full Bench, is automatic on the claim being made after the period of three months before such action is taken by the disciplinary authority. It is thus admitted that the authorities of the respondent Corporation have failed not only to issue charge-sheet but also to extend the period of suspension 6 beyond the period of three months; whereas the petitioner has already raised his claim under Rule 9(7) of the Rules. In the above circumstances, it has to be held that the order dated 8.9.2010 suspending the petitioner stood automatically revoked on the petitioner applying for the same on 11.12.2010 as also raising the aforesaid plea before this Court in the present writ petition on 13.12.2010. The writ application is, accordingly, allowed. It is, however, made clear that revocation of the suspension does not preclude the respondent authorities from proceeding with the disciplinary proceedings. (Ramesh Kumar Datta,J.) Spal/