IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.363 of 2008 NARESH NATH Versus THE STATE OF BIHAR & ORS ----------- For the Appellant : Mr. M. K. Thakur, Advocate For the Respondents : Mr. D.P.Chaudhary, Standing Counsel-II ------------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ---------- Dated, the 24th July, 2008. The order of suspension, vide Memo. No.135 dated 22nd February, 2008, came to be challenged by the petitioner in the writ petition. Initially vide order dated 4th March, 2008, the Court issued notice to respondent no.4 and also stayed its operation. The matter then came-up before the Court on 23rd April, 2008. On that date, on the basis of the available material, the Single Judge found no illegality in the order of suspension and dismissed the writ petition. 2. The counsel for the appellant initially submitted that he raised three fold submission before the Single Judge but none of these submissions has been considered. We asked the counsel for the appellant to refer to the ground taken in the memorandum of appeal in this regard. He was unable to show any ground from the Memorandum of appeal that he made three fold submission before the - 2 - Single Judge and the said submissions were not considered. 3. Then the counsel for the appellant submitted that he was not heard by the Single Judge. Besides that it is contradictory to the first submission made by him, from the entire memorandum of appeal, he could not show any such ground that he was not heard by the Single Judge. 4. The counsel would then submit that on 4th March, 2008, the Single Judge of this Court issued notice to respondent no.4 and stayed operation of the suspension order and there being no change in the material, the Single Judge was not justified in dismissing the writ petition on 23rd April, 2008. 5. It is true that on 4th March, 2008, the Single Judge of this Court issued notice to respondent no.4 and at the same time stayed operation of suspension order. It is also true that on 23rd April, 2008, when the matter came-up before another Single Judge, there was no further pleading as the respondents had not filed any counter affidavit. However, that does not mean that it was not open to the Single Judge to consider the matter on the basis of available material and pass an appropriate order. 6. Rule 9 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 makes a provision for suspension, which reads, thus: - 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 - 3 - under suspension when- (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. (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 the government servant give 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. - 4 - (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant under suspension is set aside in appeal or on revision under these Rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. (5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold further inquiry against the government servant to meet a situation where the court has passed an order purely on technical grounds without going into the merits of the case, on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. (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 - 5 - order. (7) 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 alongwith 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. 7. That a Government servant can be placed under suspension in contemplation of the disciplinary proceeding, is clearly provided under Rule 9(1)(a). The pleadings in the writ petition and the materials as placed on record, do not lead to any inference that the order of suspension is actuated with ulterior motive as has been sought to be alleged. Seen thus, the Single Judge cannot be said to have committed any error in dismissing the writ petition as the order of suspension was passed by a competent authority in contemplation of disciplinary proceedings, which is permissible under Rule 9(1)(a). 8. The counsel for the petitioner (appellant) then submitted that the suspension order could have been kept alive for 90 days and since the said order has not been extended by assigning reasons, the suspension order has come to an end. 9. We are afraid, this contention is also not acceptable. It is true that the order of suspension is dated 22nd February, 2008, but the fact of the matter is that its operation was - 6 - stayed by the order of this Court on 4th March, 2008. Writ petition came to be dismissed only on 23rd April, 2008 and from that date hardly 90 days has passed now. It is competent of the disciplinary authority to keep the petitioner under suspension in contemplation of disciplinary proceeding for a further period of four months. 10. Seen thus, letters patent appeal has no merit. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-