IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.303 of 2008 YOGENDRA KUMAR JAISWAL Versus THE STATE OF BIHAR & ORS ----------- For the Appellant : Mr. Rajendra Prasad Singh, Senior Advocate Mr. Manish Kumar, Advocate For the Respondents : Mr. Rajesh Kumar Singh, Junior Counsel to Additional Advocate General-II ---------------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal --------- Dated, the 8th September, 2008. Mr. Rajendra Prasad Singh, senior counsel for the appellant submits that Clause (7) of Rule 9 is applicable to all the three situations provided in clause (1) of Rule 9 of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 (for short, „Rules, 2005‟). 2. Rule 9 of the Rules, 2005 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 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 - 2 - 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) 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. - 3 - (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 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 - 4 - revoked if the charge-sheet is not framed.” 3. In our view, the expression “charge-sheet must be framed” in clause (7) of Rule 9 is referable to the government servant who has been suspended in contemplation of disciplinary proceeding or pendency thereof. In other words, it is referable to clause (1)(a) and not to the other clauses. This gets support from the legal position admitted by the senior counsel that charge-sheet is never framed by the police and upon conclusion of the investigation, the police submits final form. Obviously, the expression “charge-sheet must be framed” cannot relate to a criminal case under investigation, enquiry or trial, based on which a government servant is suspended under Rule 9(1)(c) of the Rules of 2005. 4. In this view of the matter, Clause (7) of Rule 9 cannot apply where the government servant accused of a crime has been suspended during investigation, enquiry or trial of a criminal case. 5. The view of the Single Judge, thus, cannot be faulted. 6. L.P.A. is, accordingly, dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-