IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.866 of 2011 Yogendra Kumar Jaiswal, aged about 59 years, son of Late Jagannath Prasad, resident of Shivpuri, Professors‟ Colony Road, P.S. Shastri Nagar, District- Patna…. Petitioner Versus 1. The State of Bihar 2. Principal Secretary, Department of Health, Bihar, Patna 3. Secretary, Department of Health, Bihar, Patna 4. Joint Secretary, Department of Health, Bihar, Patna …………... Respondents ---------------------------------- 2. 1.8.2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks quashing of the notification contained in memo no. 1090(9) dated 24.10.2007 by which he has been placed under suspension under Rule 9(1)(c) of the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 and also for quashing the notification dated 26.3.2008 by which the suspension of the petitioner was purportedly renewed in terms of Rule 9(7) of the CCA Rules, 2005 and further for a direction to the respondent-authorities to revoke the suspension of the petitioner in terms of the letter dated 31.8.2007 of the Personnel and Administrative Reforms Department, Government of Bihar. 2 The facts of the case need not be noted in detail in view of the fact that the petitioner had earlier also approached this Court seeking practically the same relief by filing CWJC No. 2732/2008 which was dismissed by order dated 26.3.2008 in which this Court had held that Sub Rule (7) of Rule 9 of the CCA Rules is applicable only to an order of suspension passed under Rule 9(1)(a) on account of a contemplated or pending disciplinary proceeding and not in a case of suspension under Rule 9(1)(c) on account of a criminal offence under investigation, inquiry or trial, as in the case of the petitioner. Learned counsel for the petitioner submits that subsequent to the passing of the said order a departmental proceeding has also been initiated against the petitioner by resolution dated 17.4.2009 of the State Government in the Health Department in which, apart from the charge of possessing disproportionate assets as in the criminal case, another charge has also been added. It is thus, submitted by learned counsel that the petitioner became entitled to the benefit of Rule 9(7) of the 3 CCA Rules. It is further submitted by learned counsel for the petitioner that the purpose of suspension is primarily to oust the employee from tampering with the evidence whereas the charges in question are not primarily related to his official functions and as such there is no scope for the petitioner to tamper with the evidence in a case of charge of possession of disproportionate asset. Hence, it is urged that even if the suspension is revoked and the petitioner is reinstated the same cannot affect the case pending against the petitioner in any manner. Learned counsel also submits that long suspension of a Government servant itself amounts to a punishment as held by the Apex Court in the Case of O.P.Gupta Vs. Union of India and others: (1987) 4 SCC 328 in para-15 in the following terms:- “We have set out the facts in sufficient detail to show that there is no presumption that the government always acts in a manner which is just and fair. There was no occasion whatever to protract the departmental inquiry for a period of 20 years and keeping the appellant under suspension for a period of nearly 11 years unless it was actuated with the mala fide intention of subjecting 4 him to harassment. The Charge framed against the appellant was serious enough to merit his dismissal from service. Apparently, the departmental authorities were not in a position to substantiate the charge. But that was no reason for keeping the departmental proceedings alive for a period of 20 years and not to have revoked the order of suspension for over 11 years. An order of suspension of a government servant does not put an end to his service under the government. He continues to be a member of the service in spite of the order of suspension. The real effect of the order of suspension as explained by this Court in Khem Chand V. Union of India: 1958 SCR 1080: AIR 1958 SC 300: (1959) 1 Lab LJ 167 is that he continues to be a member of the government service but is not permitted to work and further during the period of suspension he is paid only some allowance – generally called subsistence allowance – which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously. The very expression „subsistence allowance‟ has an undeniable penal significance. The dictionary meaning of the word „Subsist‟ as given in Shorter Oxford English Dictionary, Vol. II at p. 2171 is “to remain alive as on food; to continue to exist”. “Subsistence” means – means of supporting life, especially a minimum livelihood. Although suspension is not one of the punishments specified in Rule 11 of the Rules, an order of suspension is not to be lightly passed against the 5 government servant. In the case of Board of Trustees of the Port of Bombay V. Dilipkumar Raghavendranath Nadkarni: (1983) 1 SCR 828 the Court held that the expression „life‟ does not merely connote animal existence or a continued drudgery through life. The expression „life‟ has a much wider meaning. Suspension in a case like the present where there was no question of inflicting any departmental punishment prima facie tantamounts to imposition of penalty which is manifestly repugnant to the principles of natural justice and fair play in action. The conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 of the Constitution, but even so such rules have to be reasonable and fair and not grossly unjust. It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognized, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration.” It is urged by learned counsel for the petitioner that the suspension of the petitioner ought to be revoked also keeping in view the fact that the petitioner is due to retire in January, 2012. 6 Learned counsel further relies upon the notification dated 31.8.2007 issued by the State Government in the Personnel and Administrative Reforms Department, in para-3 of which it is provided that on the conclusion of the departmental proceedings if the criminal case is not decided then in that case a decision should be taken in terms of Rule 11 of the CCA Rules, 2005 with respect to the period of suspension on the basis of the result of the departmental proceedings by the competent authority. On a consideration of the submissions of learned counsel for the petitioner and the facts and circumstances of the case, this Court is of the view that initiation of the subsequent departmental proceedings does not make any difference in the situation of the petitioner as the suspension of the petitioner was under Rule 9(1)(c) on account of initiation of the criminal case; hence, the case of the petitioner continues to be covered by the order dated 26.3.2008 passed by this Court and the petitioner cannot be permitted to re-argue the case so far as that aspect of the matter is concerned. 7 Even the notification dated 26.3.2008 purporting to renew the suspension under Rule 9 can be of no avail as the order was not required to be passed by the authorities on account of suspension of the petitioner having been under Rule 9(1)c) as clearly held by this Court in the order dated 26.3.2008 and the same has been passed under a misconception of law. So far as the benefit of the Government circular dated 31.8.2007 is concerned, the same can only be given to the petitioner in case the departmental proceeding is concluded before the conclusion of the criminal case. Admittedly that has not happened and thus no benefit can be derived by the petitioner from the said circular also. This Court is also not in agreement with the submission of learned counsel for the petitioner that the suspension is primarily to oust a person from tampering with the evidence. There are many reasons for which an order of suspension is passed and not only the question of tampering with the evidence and thus the said proposition is not acceptable. 8 No benefit can also be derived by the petitioner from the decision of the Apex Court in the case of O.P.Gupta (supra) which was a case purely of a departmental proceeding on certain charges which had been prolonged for more than 20 years and in the said circumstances, observations were made that prolongation of period of suspension without concluding the departmental proceeding may be treated as mala fide act in the said state of affairs. In the present case suspension was ordered on account of a criminal case which was instituted in the year 2007 and on which the departmental authorities have no control and the question of any mala fide and punitive effect in such case cannot arise. In view of the aforesaid discussions, this Court does not find any merit in the writ petition. It is accordingly dismissed. S.Pandey ( Ramesh Kumar Datta, J.)