IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No. 1471 of 2010 IN CIVIL WRIT JURISDICTION CASE No.11203 of 2010 WITH INTERLOCUTORY APPLICATION No.8614 of 2010 IN LETTERS PATENT APPEAL No. 1471 of 2010 Awadhesh Kumar Tiwari s/o late Gauri Shankar Tiwari, r/o village – Allapur, P.S. Manjhagarh, District – Gopalganj …. Appellant Versus 1. The State Of Bihar 2. The Secretary, Building Construction Department, Govt. of Bihar, Patna 3. The Additional Secretary, Building Construction Department, Govt. of Bihar, Patna 4. The Joint Secretary-cum-Chief Vigilance Officer, Building Construction Department, Govt. of Bihar, Patna … Respondents ============================================= APPEARANCE: For the Appellant : Mr. Y.V.Giri, Sr. Advocate Mr. P.N.Pathak, Advocate For the Respondents: Mr. A. Amanullah, GA IX Mr. Arun Kumar,AC to GA IX ============================================ CORAM : HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 25/11/2010 Feeling aggrieved by the judgment and order dated 9th August 2010 passed by the learned Single Judge in CWJC. No.11203 of 2010, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. The appellant is an Executive Engineer employed in the Road Construction Department of the State of Bihar. Since 6th March 2007 his service has been transferred to the Building Construction 2 Department on deputation. While on deputation, by Notification dated 21st January 2010 passed by the State Government in its Building Construction Department, the appellant has been placed under suspension. While under suspension, a memorandum of charge has been framed against him on 1st April 2010. Feeling aggrieved by his continuous suspension and initiation of disciplinary proceeding by the Building Construction Department, the appellant filed the above CWJC. No.11203 of 2010 under Article 226 of the Constitution. The challenge to the order of suspension and the initiation of disciplinary proceeding were two fold. First; the continuous suspension from service is not permissible. After expiry of period of 7 months from the date of suspension, the order of suspension shall stand revoked and that the appellant shall be entitled to re-instatement in service. Second; the appellant challenged the competence of the Building Construction Department to initiate disciplinary proceeding against the appellant. According to the appellant, the Building Construction Department has a limited power to initiate the disciplinary proceeding for imposition of a minor penalty. For imposing major penalty, it is the appointing authority alone which is vested with such power. In the present case, the appointing authority being State of Bihar in its Road Construction Department, it is the Road Construction Department alone which has the authority to initiate disciplinary 3 proceeding against the appellant for imposition of minor penalty. In other words, the memorandum of charge dated 1st April 2010 issued by the Building Construction Department is without the authority of law. Thus, the initiation of inquiry itself is vitiated. The learned Single Judge has negatived both the contentions and has dismissed the writ petition. The learned Single Judge has directed that the departmental proceeding be completed in accordance with law and the Circulars of the State Government prescribing the time period in respect thereof . Feeling aggrieved, the writ petitioner has preferred the present Appeal. The learned senior advocate Mr. Giri has appeared for the appellant. He has relied upon the Government Resolution dated 19th January 2007. Under the said Resolution the Building Construction Department has been empowered to suspend the employees on deputation from the Road Construction Department and to impose minor penalty as envisaged by Rule 14 of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as “the Rules”). Mr. Giri has strenuously urged that the Building Construction Department has no authority to impose a major penalty specified under Rule 14 of the Rules. He has also relied upon the memorandum of charge. He has submitted that the memorandum of charge has been issued in consonance with the procedure laid down under Rule 17 4 of the Rules. Rule 17 of the Rules provides for procedure for imposition of major penalty. That necessarily means that the disciplinary proceeding is initiated for imposition of major penalty which is beyond the power of the Building Construction Department. He has further submitted that since the order of suspension made on 21st January 2010 more than 7 months have passed, the continued suspension of the appellant is not permissible. The appellant is, therefore, entitled to re-instatement in service. In support of his argument, he has relied upon the judgment of the Full Bench of this court in the matter of The State of Bihar & Ors. v. Gyan Kumar Ram & Ors., [2009 (4) PLJR 272]. After considering the relevant provisions, the Full Bench has held; “Where an order of suspension is passed in contemplation of a disciplinary proceeding, the charge-sheet is required to be filed within a period of 3 months from the date of issuance of such order. On failure to frame charge-sheet within the stipulated period, the concerned employee gets a right to claim that he should be reinstated in service and if any such application is filed the order of suspension is bound to be revoked.” The Full Bench has also held; “Similarly, the right of the employee to get reinstated is defeated if before he makes an appropriate application the charge-sheet is framed.” Rule 2 of the Rules defines the „Disciplinary 5 Authority‟ to mean “Appointing Authority or any other Authority authorized by it who shall be competent under these Rules to impose on a government servant any of the penalties specified in Rule 14 of these Rules.” Rule 14 of the Rules prescribes minor and major penalties. Rule 16 of the Rules empowers the Government or the appointing authority or any authority to which the appointing authority is subordinate or any other authority empowered by a general or special order of the Government to institute disciplinary proceedings against any government servant. Sub-Rule (2) thereof empowers the disciplinary authority competent to impose any of the minor penalties specified in Rule 14, to institute the disciplinary proceedings against any government servant for the imposition of any of the major penalties specified in Rule 14, although such authority may not be competent to impose any of the major penalties specified in Rule 14. The said Sub-Rule (2) reads as under: 16(2) “A disciplinary authority, competent under these Rules to impose any of the penalties specified in clauses (i) to (v) of rule 14, may institute disciplinary proceedings against any government servant for the imposition of any of the penalties specified in clauses (vi) to (x) of rule 14 notwithstanding that such disciplinary authority is not competent under these Rules to impose any of the penalties under clauses (vi) to (x) of Rule 14.” Rule 17 of the Rules sets out the procedure to 6 be followed for imposition of major penalty. Rule 9 of the Rules deals with suspension. Sub – rule (7) thereof provides for framing of the charge-sheet within 3 months from the date of issue of suspension order. As to the order of suspension, the learned senior advocate Mr. Giri is right in contending that unless the charge-sheet is framed within the specified time , the order of suspension is liable to be revoked and the government servant concerned is entitled to re- instatement in service. However, in the present case, the order of suspension was made on 21st January 2010. The charge-sheet was framed on 1st April 2010, i.e. within 3 months as specified in Sub-rule (7) of Rule 9 of the Rules. The appellant is, therefore, not entitled to revocation of the order of suspension or for reinstatement in service as a matter of course. As to the initiation of the disciplinary proceedings, it is not in dispute that the Building Construction Department is authorized to impose a minor penalty upon the appellant. As provided in Sub- rule (2) of Rule 16 of the Rules the disciplinary authority empowered to impose a minor penalty is also empowered to initiate disciplinary proceedings in respect of the major penalty notwithstanding that such disciplinary authority is not competent under the Rules to impose any of the major penalties. Thus, though the Building Construction Department may not be empowered to impose a major punishment upon the appellant, it is not precluded from initiating a 7 disciplinary proceeding for imposition of major penalty. In our opinion, the initiation of the disciplinary proceeding for imposition of major penalty in accordance with the procedure laid down in Rule 17 of the Rules by the Building Construction Department is legal and valid. The challenge to the said proceeding is misconceived. The learned Single Judge has rightly rejected the writ petition. For the aforesaid reasons, the Appeal is dismissed in limine. The disciplinary proceeding will be completed as directed by the learned Single Judge. Interlocutory Application no.8614 of 2010 stands disposed of. Neyaz/ ( R. M. Doshit,CJ.) (Jyoti Saran, J.)