IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.7510 of 2011 Lakshmeshwar Prasad Roy @ Rai, S/o- Shree Bhagat Narayan Roy, r/o- village and P.O.- Dehuli, via Chandan Patti, P.S.- Shakara, District- Muzaffarpur, Bihar. ….. Petitioner Versus 1. Uttar Bihar Kshetriya Gramin Bank, Head Office, Lalambagh Chowk, Muzaffarpur, Bihar through its Chairman. 2. The Chairman, Uttar Bihar Kshetriya Gramin Bank, Head Office, Kalambagh Chowk, Muzaffarpur, Bihar. 3. Branch Manager, Uttar Bihar Kshetriya Gramin Bank Laxmanpur Barbatta Branch, District- Vaishali. ……….. Respondents For the petitioner : Sarva Deo Singh, Advocate For the Bank : Mr. Ajay Kumar Sinha, Advocate. ---------------------------------- 5 09.08.2011 Petitioner, during the relevant time, was posted as Branch Manager, Laxmanpur Barbatta Branch of the Uttar Bihar Kshetriya Gramin Bank (for short “the Bank”) when he was arrested on 21.2.2007 by State Vigilance Department on the charges of corruption. In a trap laid by sleuth of Vigilance Department, ill gotten money in the sum of Rs. 3,000/- (three thousand) was recovered from his possession. The aforesaid money was demanded and received by him for sanctioning loan to the complainant of the case. Accordingly, the respondent authority of the Bank passed an order dated 23.2.2007 (Annexure-1) whereby he was placed under suspension with effect from the date of his arrest. Relevant part of the order reads as under: “Sri Laxmesnwar Prasad Rai, Branch Manager, Laxmanpur Barbatta Branch Distt. Vaishali is placed under suspension with effect from date of his arrest i.e. 21.2.2007 by State Vigilance Deptt. On charges of corruption as per provisions of Uttar Bihar Kshetriya Gramin Bank (Officers & Employees) Service Regulation, 2006.” 2 The petitioner seeks an appropriate order of this Court to quash the aforesaid order. Relevant facts, in brief, are that while he was functioning as Branch Manager of the said Branch of the Bank, a team of State Vigilance led a trap on 21.2.2007 and the petitioner was arrested. By an order dated 21.6.2007 passed by this Court, he was released from custody. Soon after his release, he submitted his joining on 25.6.2007 but no order was passed thereon and the petitioner continued to receive subsistence allowance regularly @ 50 % of his salary. On 20.7.2007, he represented before the respondent Chairman of the Bank to vacate the order of suspension and for his reinstatement which was not considered and no order was passed thereon. After having waited for about four years, the present application has been filed. Heard learned counsel for the petitioner and Mr. Ajay Kumar Sinha for the respondent Bank. A supplementary affidavit followed by counter affidavit have been filed on behalf of the petitioner and the respondents respectively which are on record. Learned counsel appearing in support of the application submitted that the order dated 23.2.2007 (Annexure-1) has been passed in terms of Rule 29 of the Uttar Bihar Kshetriya Gramin Bank (Officers & Employees) Service Regulation, 2006 (for short “ the Regulation”) taking into account his arrest in connection with the criminal case. Soon after his release from custody, the respondents were required to pass fresh orders in terms of the 3 said Rule which they have failed to pass. It is the stand of the petitioner that the order of suspension in terms of Rule 29 of the Regulation was deemed to be vacated after the release of the petitioner from custody and the joining of the petitioner is required to be accepted. It is also contended that the authorities have passed fresh orders in terms of aforesaid Rule/Regulation in respect of other employees of the Bank but in the case of the petitioner, no order was passed on his representation which propelled him to approach this Court. Learned counsel for the respondents, on the other hand, submits that Rule 29 of the Regulation is not in pari materia with Rule 99 or 100 of the Bihar Service Code. It grants discretion to the competent authority of the respondent Bank to pass an order of suspension for a period up to a particular date (date of release of the delinquent from jail custody) or such period as the competent authority may direct. Learned counsel highlights that there is no provision like deemed suspension in case an employee of the Bank is arrested on any criminal charge or is detained in pursuance of any process of law. It is next contended that the Regulation itself provides a remedy to the petitioner in terms of Rule 47 thereof. It is next contended that the petitioner acquiesced in the order for at least close to 4 years and is now raising a grievance that the authorities were required to pass orders on his representation filed after his release from the jail custody. 4 I have heard the rival contentions made on behalf of the parties. In order to appreciate the issue, it is deemed apposite to extract the provision contained in Rule 29 of the Regulation which reads as under: “(29) Officer or employee arrested for debt or on a criminal charge (1) An officer or employee who is arrested for debt or on a criminal charge or is detained in pursuance of any process of law, may, if so directed by the Competent Authority, be treated as being or having been under suspension from the date of his arrest, or as the case may be, of his detention, upto such date or during such period as the Competent Authority may direct. Provided that in respect of the period in regard to which he is so treated he shall be paid subsistence allowances as specified in Regulation 44. (2) Any payment made to an officer or employee under Sub-Regulation (1) shall be subject to adjustment of his pay and allowances which shall be made according to the circumstances of the case and in the light of the decision as to whether such period is to be accounted for as a period of duty or leave. Provided that full pay and allowances shall be admissible only if the officer or employee (a) is treated as on duty during such period, and (b) is acquitted of all charges or satisfies the Competent Authority, in case of his release from detention or his detention being set aside by the Competent Court, that he had not been guilty of improper conduct resulting in his detention. (3) (a) An officer or employee shall be liable to dismissal or to any of the other penalties referred to in Regulation 38, if he is committed to prison for debt or is convicted of an offence which in the opinion of the Competent Authority, either involves moral turpitude, or has a bearing on any of the affairs of the Bank or on the discharge by the officer or employee of his duties in the Bank, the opinion in this respect of the Competent Authority shall be conclusive and 5 binding on the officer or employee. (b) Such dismissal or other penalty may be imposed as from the date of his committal to prison or conviction and nothing in Regulation 38 shall apply to such imposition. (4) Where an officer or employee has been dismissed in pursuance of Sub Regulation (3) and the relative conviction is set aside by a higher court and the officer or employee is honourably acquitted, he shall be reinstated in service. (5) Where the absence of an officer or employee from duty is without leave or his overstayal is due to his having been arrested for debt or on criminal charge or to his having been detained in pursuance of any process of law, the provisions of Regulation 22 shall also apply, and for the purpose of that Regulation as so applied, the officer or employee shall be treated as having absented himself without leave or as the case may be, overstayed otherwise than under circumstances beyond his control.” Regulation 47 of the Regulation reads as under: “47. Right to appeal (i) an officer or employee shall have right of appeal against any order passed under these Regulations which injuriously affects his interest. (ii) The appeal shall be preferred to the Appellate Authority mentioned in Regulation 48 within 45 days of the date of receipt of the order appealed against. The Appellate Authority shall consider the appeal and pass suitable order preferably within a period of 6 months. It is the stand of the petitioner that he has been ordered to be placed under suspension in terms of Regulation 29 of the Regulation on the sole ground of his arrest in connection with a criminal case and as such his suspension shall be deemed to be vacated after the custody period is over and the officer/employee gives his joining. According to him, the Competent Authority is required to accept the joining after revocation of suspension and 6 if the circumstances so warrant, fresh order of suspension can be passed considering the nature of offence and the interest of the Bank. It has been highlighted that in the case of other employees, the authorities accepted the joining once it is made. On a careful consideration of the submissions advanced on behalf of the parties, it appears that the aforesaid Rule 29 of the Regulation does not provide for a deemed suspension. It admits of discretion of the competent authority to pass order of suspension indicating the date up to which it shall hold the field or up to such date or during such period as the competent authority may direct. The order contained in Annexure-1 does not disclose the date up to which the said order shall hold the field. Proviso to Regulation 29 and Clause (2) of the Rules, in my view, do not give any indication that the order of suspension passed under Regulation 29 would come to an end automatically once the employee against whom the said order has been passed on the ground of arrest in connection with a criminal case and/or detention in pursuance of any process of law comes, is released from such custody/detention. Petitioner has placed reliance on Kedar Paswan versus State of Bihar since reported in 2005 (3) PLJR 132. A bare perusal of paragraph 3 of the report would show that the order was passed in terms of Rule 100 of the Bihar Service Code (for short “ the Code”). The Court also considered that he was not getting subsistence allowance as permissible under Rule 96 of the Code. It further appears therefrom that a 7 departmental proceeding was initiated thereafter . In that factual scenario, the learned Single Judge relying on A.I.R. 1999 S.C. 1416 (Capt. M. Paul Anthony versus Bharat Gold Mines Ltd. & Anr) quashed the order of suspension considering long delay in initiation of proceeding and non-payment of subsistence allowance to the delinquent. As I have already noticed, the Regulation which governs the case of the petitioner cannot be equated with the provisions contained in Rule 99 and 100 of the Code. On the contrary, the competent authority, under the Regulation, has been granted discretion in the matter. In that view, the ratio laid down in Kedar Paswan (supra) would not be applicable to the case which is governed by an entirely different set of Rule/Regulation. Learned counsel for the petitioner has highlighted that in similar circumstances, the respondents have entertained the representation of the delinquent/accused/officer and passed orders revoking suspension in terms of the provisions contained in Rule 29 of the Regulation. This submissions of the petitioner has not been denied by the respondents. Mr. Sinha appearing on behalf of the Bank fairly admits that in the case of some of the employees, the competent authority who passed order under Rule 29 acting on the representation of the employees passed fresh order(s). In this connection, this Court may refer to the case of Kedar Paswan (supra) where while granting relief to the petitioner what weighed 8 with the Court, apart from other facts, was that the petitioner of the case had suffered suspension for a long period and in case of similarly situated persons, the order of suspension was revoked by the competent authority. To that extent, the facts of the said case are identical to the facts of the present case. It is settled beyond cavil that continued suspension of a employee is neither in the interest of the employer nor in the interest of the employee. The respondents have, in the past, considered the application of the delinquent invoking jurisdiction of the competent authority in terms of Regulation 29 and fresh orders were passed thereon. I have already found that the order of suspension does not set out the outer limit of its applicability. The authority could have limited the order of suspension up to detention of the employee under custody or could have passed order of suspension till he is acquitted of the criminal charge in the proceeding. The order as contained in Annexure-1 is silent on this aspect. The petitioner after filing his application before the competent authority for revocation of his suspension and acceptance of his joining in 2007 did not take any steps thereafter even though the respondents did not take any action on the said application/representation. He remained silent for over 3 ½ years thereafter without raising any grievance thereagainst. In his own wisdom, now he has approached this Court raising a grievance with respect to his continued suspension in the light of order 9 contained in Annexure-1. This Court, therefore, would not direct the respondents to pass an order on the said application of the petitioner. However, considering the facts that petitioner has continued to suffer for close to 4 years by now on account of his suspension in terms of Annexure-1 and that the respondents have in the past acted on the application of the persons similarly situated and passed orders thereon, this Court would permit the petitioner to file a fresh application seeking modification/revocation of his order of suspension as contained in Annexure-1. If any such application is filed within three weeks from today, the said respondent is directed to consider and pass fresh order in accordance with law in the light of the provisions contained in Rule 29 of the Regulation within four weeks of its filing. The application is disposed of with the aforesaid observation/direction. pkj (Kishore K. Mandal, J.)