IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16900 of 2010 With CWJC No.18804 of 2010 *** In the matter of applications under Article 226 of the Constitution of India. *** (In CWJC No. 16900/2010) Vipin Kant Tiwary, Son of Surya Narain Tiwary, resident of Chanakya Puri, Raja Bazar, P.S. Shastri Nagar, District Patna…………………………Petitioner Versus 1. The State Of Bihar 2. The Commissioner, Transport Department, Govt. of Bihar, Patna. 3. The Joint Commissioner, Transport Department, Govt. of Bihar, Patna. 4. The Secretary, Transport Department, Govt. of Bihar, Patna………………………………………………………………Respondents With (In CWJC No.18804/2010) Vipin Kant Tiwary, Son of Surya Narain Tiwary, resident of Chanakya Puri, Raja Bazar, P.S. Shastri Nagar, District Patna………………………Petitioner Versus 1. The State Of Bihar 2. The Commissioner, Transport Department, Govt. of Bihar, Patna. 3. The Joint Commissioner, Transport Department, Govt. of Bihar, Patna. 4. The Secretary, Transport Department, Govt. of Bihar, Patna………………………………………………………………Respondents *** For the Petitioner: Mr. Chittranjan Sinha, Sr. Advocate Mr. Saket Tiwary, Advocate For the State : Mr. Siddhartha Prasad, A.C. to A.A.G. 9 *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH *** O R D E R J.N. Singh, J. Petitioner has filed these two writ applications challenging two orders passed by the respondents as a sequel to his arrest by the police in connection with a substantive criminal case and subsequent initiation of a departmental 2 proceeding against him. 2. In the first case, prayer of the petitioner is for revocation of his suspension with retrospective effect, as ordered by the respondent-Transport Commissioner, vide his order dated 17.09.2009, as contained in Annexure-5. In the second case, his prayer is to quash the order dated 16.06.2010 issued under the signature of the Joint Secretary of the Transport Department, as contained in Annexure-7, directing for initiation of a de-novo proceeding against him for the self same charges on which a departmental proceeding had already been initiated and an enquiry report had also been submitted. 3. Short facts of the case are that on 24.07.2008, a trap was laid and the petitioner, who was a Motor Vehicles Inspector, was arrested while taking bribe and was sent to jail. Accordingly, he was suspended in terms of Rule 9 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (In short, “the Rules”), under the orders of the Secretary of the Department dated 21.08.2008, vide Annexure-1. An identical order was again issued by the Secretary on 25.08.2008, vide Annexure-2. Charges were also framed and an order initiating a proceeding, along with charge, was forwarded to the petitioner and an order was also issued by the Transport 3 Commissioner on 27.11.2008, vide Annexure-3, placing the petitioner under the departmental proceeding. By the said order, Conducting Officer and Presenting Officer were also appointed. 4. Petitioner remained in custody for some time and finally, on the orders of this Court dated 09.01.2009, he was released on bail. After being released, he reported in the office of the Commissioner, Transport Department, and submitted his joining in the Department on 16.01.2009. However, neither his joining was accepted nor was he allowed to work and he remained being treated as suspended and continued to receive his subsistence allowance only. After many months, Transport Commissioner issued another order dated 17.09.2009 vide Annexure-5, in which it was mentioned that order had already been passed for acceptance of joining of the petitioner submitted on 16.01.2009 and payment of his subsistence allowance of suspension period. However, it was mentioned that, in view of the criminal case pending against him, he was being suspended again with effect from 16.01.2009 itself, in terms of Rule 9(3)(ii) and as per provisions of Rule 9 (1) (c) of the said Rules. 5. In the meanwhile, petitioner had submitted his reply to the charges which was considered and, after going through the evidence, the Conducting 4 Officer submitted his report on 19.05.2009, vide Annexure-6. In his report, the Conducting Officer found that the first and the third charges were not proved. However, in respect of the second charge, the Conducting Officer considered himself incompetent to give any finding as criminal case was pending, and suggested that any decision on the same may be kept postponed till final decision in the criminal matter is received. This report was considered by the Disciplinary Authority and, by order dated 16.06.2010, issued under the signature of the Joint Secretary of the Department, vide Annexure-7, the Conducting Officer was directed to re-conduct the departmental proceeding in a full-fledged manner. This order is under challenge in the second writ application. 6. Learned senior counsel for the petitioner submitted that by operation of law, suspension of the petitioner stood revoked the moment he was released from jail. That being the position, the respondents were obliged to accept his joining. It was submitted that, thereafter, the respondents were at liberty to suspend the petitioner again, either in contemplation of an enquiry or on account of the pending proceeding or on account of a substantive criminal case pending against him. But the said order could not be passed with 5 retrospective effect. He also submitted that since suspension of the petitioner stood revoked by operation of law, petitioner was entitled for his full salary till he was suspended again under valid orders. He also submitted that if the disciplinary authority was not satisfied with the report of the Conducting Officer, he was at liberty to differ with his findings, come to his own tentative conclusion with respect to the charges, issue a show cause notice, disclosing grounds of difference of opinion with the Conducting Officer and, after receipt of the reply of the petitioner, pass final orders. But it was not open to the Conducting Officer to abandon the proceeding half-way and direct the Conducting Officer to hold de-novo enquiry on the same charges again. In support of this submission, learned senior counsel for the petitioner has relied upon a judgment of the Apex Court in the case of Mathura Prasad Vs. Union of India, reported in (2007)1 Supreme Court Cases 437, and a judgment of a learned Single Judge of this Court in the case of Arun Kumar Sinha Vs. State, reported in 2007 (3) PLJR 787. 7. Respondents have filed their counter affidavit in the first case. It is stated in the counter affidavit that observation of the Conducting Officer in the report, suggesting for stay of 6 proceeding in respect of charge No.II in the light of the pending criminal case, was contrary to Guidelines issued by the General Administration Department, vide letter no.2324 dated 10.07.2007. In the counter affidavit, reliance has been placed upon a judgment of the Apex Court in the case of State of Rajasthan Vs. B.K. Meena, reported in AIR 1997 Supreme Court 13, to the effect that conduct of a departmental proceeding is not a bar even if criminal case for the substantively self-same charge was pending for trial against the delinquent. Therefore, it is pleaded that in view of the pending departmental proceeding and the criminal case, suspension of the petitioner could not be revoked, which, according to the respondents, was strictly in accordance with the provisions of the Rules and within the powers of the Appointing Authority. 8. Learned counsel for the State placed reliance upon clause (b) of sub-rule (6) of Rule 9 of the Rules to submit that during the pendency of the suspension order, if a disciplinary proceeding commences against a Government servant, an authority, competent to place a Government servant under suspension for the reasons to be recorded in writing, may direct that the government servant shall continue to be under suspension till termination of all or any such proceeding. He also 7 submitted that the order dated 16.06.2010, as contained in Annexure-7, was in effect for further enquiry. 9. Reliance placed by learned counsel for the State on clause (b) of sub-rule (6) of Rule 9 is misconceived. From bare reading of clause (b) of sub-rule (6) of Rule 9, it is clear that order of continuance of suspension is to be passed by an authority only during the continuance of earlier suspension, in connection with any proceeding or otherwise. This clause does not empower the Disciplinary Authority to pass an order of suspension with retrospective effect, after the earlier suspension, by operation of law, had already come to an end. Similarly, the submission of the learned counsel for the State that the said impugned order dated 16.06.2010 was, in effect, an order of further enquiry, is not supported by any expression used in that order. On the other hand, at two places in the order, the use of the word „Punah‟ makes it abundantly clear that the Conducting Officer was directed to hold a de-novo enquiry in the charges. 10. It is an admitted fact that petitioner was arrested and put behind bars. This is also admitted that after coming to know about his arrest, the respondents invoked their powers under the Rules and suspended him. Thereafter a 8 proceeding has also been initiated, charges have been framed, proceeding has been held, enquiry report has been submitted, all under the provisions of the Rules. The order of suspension of the petitioner has also been passed in terms of the Rules. Hence, to consider contentions of the parties, the provisions of the Rules have to be examined. In respect of suspension, provisions are contained in Rule 9 of the Rules. Since the petitioner was suspended on account of his being placed under custody in connection with a criminal case, provisions of sub-rules (2) and (3) of Rule 9 of the Rules shall apply in the matter, which for easy reference, are reproduced hereinbelow:- “….(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 periods of imprisonment, if any, shall be taken into account. (3) (i) After the custody period under sub-rule (2), the period of deemed suspension shall be deemed to end when 9 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….” 11. The above sub-rule shows that the moment a Government servant is taken into custody, a deeming fiction comes into play and he is deemed to have been placed under suspension by an order of the appointing authority. Thus, even if no formal order is passed in terms of the said Rules, an order will be „deemed‟ to have been passed by the appointing authority putting him under suspension. Simultaneously, clause (i) of sub-rule (3), as reproduced hereinabove, makes it clear that, 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 his joining „shall be‟ accepted. Clause (ii) of sub-rule (3) further makes it clear that if a decision is taken to suspend him again either under clause (a) (b) and (c) of sub-rule (1) i.e. either for putting him under a departmental proceeding or on account of his prejudicial activities against interest of the security of the State or on account of pending criminal charge, the same can be done only after acceptance of his joining and by issuing a separate order. This makes it clear that 10 commencement of custody of a government servant has to result in his „deemed suspension‟ and his submission of his joining on his being released, on bail or otherwise, has to result in „deemed end‟ of his said deemed suspension. No discretion has been left to the appointing authority to act otherwise in the matter. It has also been made mandatory under the Rules that the moment a government servant submits his joining after release from custody, the same has to be accepted and only thereafter, if a decision is taken, he may be put under suspension again by specific order. This makes it clear that from the date of joining and till a fresh order of suspension is issued against a government servant, he has to be treated as on duty and entitled for full salary. 12. In the present case, respondents did not pass any formal order accepting joining of the petitioner for nine months. They treated him under suspension and paid him only subsistence allowance till fresh order of suspension was passed with retrospective effect i.e. from the date of his joining. This was not permissible in law. 13. It is a settled law that suspension cannot be from retrospective effect, unless Rules provide for the same. In 2005 Rules there is no provision empowering the disciplinary authority to suspend a government servant with retrospective effect. A 11 close reading of sub-rule (3), on the other hand, makes it clear that any fresh order of suspension has to operate prospectively after acceptance of joining of the government servant, if he submits the same after his release from custody. 14. In the circumstances, this Court finds that the order of suspension of the petitioner, as contained in Annexure-5, with retrospective effect, i.e. from the date of his submission of joining on 16.01.2009, was not in accordance with law and in the teeth of the provisions of the Rules. But Rules do provide for fresh suspension of a government servant either in contemplation of a departmental proceeding or on account of a substantive criminal case pending against him. Therefore, instead of quashing the said order, as contained in Annexure-5, this Court holds that as on 16.01.2009, joining of the petitioner shall be deemed to have been accepted, petitioner shall be deemed to have continued in service and entitled for full salary etc. and the said order (Annexure- 5), issued on 17.09.2009, putting him under suspension, shall operate only prospectively against him. 15. As a result, this Court directs the respondents to pay full salary and other allowances etc. to the petitioner, as may be admissible to him, of the period 16.01.2009 to 12 16.09.2009, after deducting the amount paid to him by way of subsistence allowance during this period. Payment in this respect shall be released to him within two months from the date of receipt/ production of a copy of this order. 16. So far as second writ application is concerned, the relevant Rule in this regard is Rule 18, which has also been referred by the respondents in their counter affidavit in the first case. For convenience, it is appropriate to reproduce Rule 18 also as hereinbelow:- 18. Action on the inquiry report – (1) the disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, may remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 17 as far as may be. (2) The disciplinary authority, after receipt of the enquiry report as per rule 17 (23) (ii) or as per sub-rule (1), shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidences on record is sufficient for the purpose. (3) The disciplinary authority shall forward or cause to be forwarded a copy of the inquiry report, together with its own findings, if any, as provided in sub-rule(2), to the government servant who may submit, if he or she so desires, his or her written representation or submission to the disciplinary authority within fifteen days. (4) The disciplinary authority shall consider the representation or submission, if any, submitted by the government servant before proceeding further in the manner specified in sub 13 rules (5) and (6). (5) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (i) to (v) of rule 14 should be imposed on the government servant, it shall, notwithstanding anything contained in rule 19, make an order imposing such penalty. (6) If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (vi) to (x) of Rule 14 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the government servant any opportunity of making representation on the penalty proposed to be imposed: (7) Notwithstanding anything contained in sub-rules (5) and (6), in every case where it is necessary to consult the Commission, the Commission shall be consulted and its advice shall be taken into consideration before making any order imposing any penalty on the government servant.” 17. Apparently, this rule is exhaustive and provides for different actions which the disciplinary authority is authorized to take on receipt of an enquiry report. From a close reading of the Rule, it is clear that, by no express word or inference, a disciplinary authority has been empowered to direct for a de-novo enquiry on receipt of an enquiry report, by completely abandoning the same. Sub-rule (1) of Rule 18 empowers the disciplinary authority to remit the matter back to the enquiry authority „for further enquiry‟ for reasons to be recorded by it in 14 writing. It also empowers the disciplinary authority to disagree with the findings of the disciplinary authority, record its reasons for such disagreement, record its finding on the Article of charge, if the evidence is sufficient for the purpose. Thereafter Rule provides for notice to the delinquent and, on receipt of the reply, for passing of final order. 18. It is a settled law that under certain contingencies, further enquiry can be directed by a disciplinary authority even if Rules do not provide for the same specifically. But it is also settled that, on the same set of facts and on the same charges, the disciplinary authority cannot direct for de-novo enquiry, abandoning the earlier enquiry and report, submitted by the conducting officer, altogether. The said two judgments relied upon by learned Senior Counsel for the petitioner, as referred above, lend support to this view. It is also useful to reproduce the observation of the Apex Court in this regard, made in paragraph 6 of the judgment rendered in the case of Kanailal Bera Vs. Union of India reported in (2007) 11 Supreme Court Cases 517 :- “The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 5-4-1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules, 15 1955, inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry.” (Emphasis added) 19. It is settled law that power of a disciplinary authority in this regard has to emanate from the statutory rules operating in the field and, at times, the Apex Court has held such rules, providing for suspension with retrospective effect and initiation of a fresh proceeding in the case of final order being set aside in a departmental appeal or revision or by court, as constitutionally valid. Reference in this regard may be made to the case of Khem Chand Vs. Union of India, reported in AIR 1963 Supreme Court 687. 20. In the present case, from impugned Annexure- 7, it is clear that previous enquiry report has been completely ignored and abandoned by the Disciplinary Authority and orders have been issued to the Conducting Officer to initiate and hold a de-novo proceeding. The respondents have completely failed to point out any provision in 2005 Rules to justify such action by the 16 Disciplinary Authority. 21. In the circumstances, this Court finds the said order of the Disciplinary Authority dated 16.06.2010, as contained in Annexure-7, as ultra vires his powers contained in the Rules. The same is, therefore, quashed. The Disciplinary Authority will be at liberty to take into account the enquiry report and the materials on record of the proceeding and act upon the same strictly within the parameters laid down for him under Rule 18 of 2005 Rules. 22. In the circumstances, both the writ applications are allowed in the manner and to the extent indicated above. Patna High Court, Patna The 21st June, 2011 N.A.F.R. (B.T.) (Jayanandan Singh, J.)