IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.233 of 2010 1. ARUN BURMAN S/O CHANDRA BHUSHAN BURMAN R/O MOH BHIKHANPUR, P.S.ISHAQCHAK, DISTT-BHAGALPUR Versus 1. THE STATE OF BIHAR 2. THE DISTRICT MAGISTRATE, DISTT-BHAGALPUR 3. THE BLOCK DEVELOPMENT OFFICER, NATHNAGAR, DISTT-BHAGALPUR ----------- 03. 26.08.2010 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner has been suspended by order dated 14.2.2009. The order states that it was under Rule 9 (1) (c) of the Bihar C.C.A. Rules, 2005. The Court finds substance in the submission on behalf of the petitioner that the aforesaid sub-clause (c) has no application to the suspension of the petitioner on the face of the order. The provision requires the pendency of a criminal offence which is under investigation, enquiry or trial as a basic pre-requisite to the order of suspension. The present order of suspension states that the suspension was in contemplation of a departmental proceeding only. It is not the form, but the substance of the order which is relevant. Mere recital of a wrong provision of law will not attract the application of that provision, if the provision itself provides the condition for its applicability and which is wanting. This Court also finds substance in the 2 second contention of the petitioner. The order of suspension is dated 14.2.2009. The writ petition was filed on 6.1.2010, assailing that till date no charges have been framed. Whether it be the application of Rule 9 (7) within three months from the date of suspension or whether it be the expiry of seven months from the date of suspension without framing of charge, this Court prima facie is of the opinion that the order of suspension may not be sustainable on that ground also. The ground mentioned in the order of suspension is that he did not prepare the pay bill of retiral dues of one employee for the month of October and November and when questioned used harsh language to say that he would not do so. Despite the fact that the writ petition was filed in January, 2010 and adjournment was thereafter granted on 21.6.2010, no counter affidavit has been filed. The attitude of the respondents is not assisting the Court for timely dispensation of justice disappoints the Court. Learned counsel for the State submitted that the application may be disposed off with directions to the authority to examine the issue of revocation of suspension in view of the Full Bench judgment of this 3 Court reported in 2009 (4) P.L.J.R. 272 (THE STATE OF BIHAR & OTHERS VERSUS GYAN KUMAR RAM) . This Court could have done so, but is not inclined to do so. It cannot be lost sight of that in the nature of allegation, the petitioner has remained under suspension now for nearly one and half years. Suspension cannot be utilized as a substituted punishment. The attitude of the respondents has been held to be disappointing. To dispose of the writ application with the aforesaid direction, in the facts and circumstance of the present case, when the respondents have neither filed a counter affidavit nor informed the Court if charges are framed shall not be appropriate. This Court is satisfied that the petitioner has suffered enough on account of continued suspension without any progress in the departmental proceedings. In absence of any counter affidavit, this Court has no option but to accept the correctness of the submission made on behalf of the petitioner, applying the principles of non traverse. Having held that the petitioner has suffered enough by continued suspension of one and half years subsisting on subsistence allowance only this Court sets aside the order of suspension dated 14.2.2009. 4 The Court does not interfere with the conduct of any department proceedings against the petitioner, but the same is required to be concluded within a maximum period of six months, as directed by Government Circulars, from the date of receipt and/or presentation of a copy of this order provided the petitioner himself co-operates. If the petitioner does not co-operate, the authorities are at liberty to proceed ex- parte also, but only after recording full reasons of their satisfaction for the need to proceed ex-parte, including attempts made to persuade the petitioner to participate, so that the departmental proceedings are concluded positively within the time fixed. After the expiry of that time, the respondents are precluded from holding any departmental proceedings on the present ground against the petitioner. The writ application is allowed. P.K. (Navin Sinha, J.)