IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13764 of 2008 VISHNU DEO DAS KESHAVA Versus KHADI & VILLAGE INDUSTRIES COMMISSION & OTHERS ----------- For the Petitioner : M/s B.K.Shukla and Prashant Kumar, Advocates For the Respondent : Mr. Dharmendra Choubey,Advocate ------- 2. 22.05.2009 Heard learned Counsel for the petitioner and the learned Counsel for the respondents. A criminal case was instituted and the petitioner was taken into custody when he was subsequently released. He was placed under suspension on 10.7.2002, with effect from 3.7.2002. The suspension was extended from time to time. The last extension was on 26.4.2006 for a period of 90 days ending on 25.7.2006. Learned counsel for the petitioner submits that after that date there was no extension of the order of suspension which automatically came to an end by the reason of its own force. Nonetheless, the respondents did also come out with a formal order on 6.2.2007 that the Commission at its meeting dated 19.1.2007 had decided to revoke the suspension and initiate disciplinary proceedings for major penalty against the petitioner. After revocation of the suspension on a date when the original order of suspension was not in existence having come to an end on 25.7.2006 by its own effect, the respondents on 27.2.2007 have directed that the issue of continuity of suspension of the petitioner be placed before the competent review committee for suitable decision. Then followed the impugned order dated 2 2/6.6.2008 extending the suspension of the petitioner till further orders as originally directed by order dated 26.4.2006. The submission on behalf of the petitioner is that having once taken a decision to revoke the suspension, the respondents cannot be permitted to extend the original suspension order which had lost its effect and had been expressly revoked also. Counter affidavit has been filed on behalf of the respondents. Learned counsel for the respondents submits that the order of revocation dated 6.2.2007 was never communicated to the petitioner and therefore no right is created in him by virtue of that order. The petitioner was being subjected to a vigilance case and therefore the rules itself provided that he could be kept under continued suspension. The counter affidavit of the respondents does not put forward any material why the order of revocation was reviewed, what was the error found in the revocation order so as to sustain a revival of the suspension by annulment of the revocation order. Under Section 27 of the Khadi and Village Industries Commission Act, 1956 on partial supersession Khadi and Village Industries Commission Employees (Conduct, Discipline and Appeal) Regulation, 1961 the Ministry of Agro Rural Industries promulgated Khadi and Village Industries Commission Employees (Classification, Control and Appeal) Regulations, 2003. Rule 8 deals with suspension. Rule 8 (a) and 8 (c) deals with the issue of suspension where disciplinary proceeding is contemplated or is pending or where there is a criminal 3 prosecution under investigation, enquiry or trial. Relevant for the present purpose is Rule 8(5)(a) which reads as follows:- “8(5)(a). An order of suspension made or deemed to have been made under this regulation shall continue to remain in force unless it is modified or revoked by the authority competent to do so.” Learned Counsel for the respondents has fairly acknowledged that the order of revocation dated 6.2.2007 is by the competent authority. This court has no hesitation in holding that once the suspension was revoked, whether a fresh suspension was permissible or justified are matters which could have appropriately been considered if the order dated 6.2.2007 was a non speaking order or if the respondents had put forward any ground in their counter affidavit in support of any such fresh materials. The counter affidavit is silent and only suggested that it was so done at the suggestion of the Central vigilance commission. If the suspension of the petitioner is regulated by a statutory provision, the issue has to abide by the statutory provision and any advice given by any person outside the statutory ambit shall not justify any action by the statutory authority on that basis. This Court holds that once the order of suspension lost its effect on 25.7.2006 there could be no retrospective suspension with effect from that date, by order dated 2/6.6.2008. On that ground also the impugned order dated 2/6.6.2008 in so far as it seeks to suspend the petitioner retrospectively is not 4 sustainable. Secondly, once the Commission, the competent body, in exercise of statutory powers had revoked the suspension, the question of reviving the original suspension order did not arise. The impugned order dated 2/6.6.2008 is therefore not sustainable in law. It is accordingly set aside. Nothing in this order shall be construed to have any effect either on the criminal prosecution or departmental proceeding pending against the petitioner. The writ application stands allowed to the extent indicated above. Snkumar/- (Navin Sinha,J.)