IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7391 of 2011 Neeraj Chand, son of Thakur Shamser Singh, At and P.O. Sidhpur, P.S. Dharmshala, Distt. Kangra, Himachal Pradesh, at present posted as Deputy Commandant in 35” Battalion (Bn.) SSB Rajnagar, District- Madhubani, Bihar Versus 1. The Union of India represented through Secretary, Ministry of Home Affairs, Directorate General, Shastra Seema Bal, East Block, V.V.R-K.Puram, New Delhi -66 2. The Director General, Sashtra Seema Bal, East Block-V, R.K.Puram, New Delhi – 110066 3. I.G. (PERS) Sashtra Seema Bal, Ministry of Home Affairs, East Block-V.R.K.Puram, New Delhi- 11006 4. D.I.G. Sector Head Quarter (S.S.B.) Lakhimpur Khiri U.P. 5. Staff Officer (Administration) Sector H.Q.Lakhimpur Khiri, Uttar Pradesh 6. Assistant Director (PERS-1) S.S.B. Govt. of India, Ministry of Home Affairs, Director General, Seema Bal East Block, R.K.Puram, New Delhi -66. ----------- For the petitioner: M/S. Shri Prakash Srivastava & Gopal Jha For UOI: Mr. Shiv Kumar, C.G.C. ----------- 2. 28.4.2011 Heard learned counsel for the petitioner and learned Central Government Counsel. The petitioner seeks quashing of the office order dated 8.4.2011(Annexure-13) by which he has been placed under suspension under Rule 41(1)(iii) of the Sashastra Seema Bal Rules, 2009 and for further consequential orders. The short facts of the case are that while the petitioner was posted as Deputy Commandant in 6th 2 Battalion, SSB Nanpur in the State of U.P. one constable GD Kailian Thang was brought dead to the Health Centre, Nanpara on 16.10.2009. The post mortem report showed as many as seven ante-mortem injuries, although the cause of death was not indicated therein. After several internal inquiries ultimately an FIR bearing Nanpara P.S. Case No. 863 (843)/2010 under Section 304 IPC was registered on 13.11.2010 against the employees of the SSB without specific names. The petitioner was earlier placed under suspension by order dated 29.9.2010 in contemplation of disciplinary proceedings but the same was ultimately revoked by order dated 8.4.2011 on the ground of being void ab initio. On the same day, i.e., 8.4.2011, the impugned order was passed in exercise of powers conferred by Rule 41(1)(iii) of the SSB Rules, 2009 placing the petitioner under suspension with immediate effect on the ground of a criminal case being under investigation by civil police in the incident of unnatural death of CT/GD Kailian Thang of 6th Battalion, SSB, Nanpara on 16.10.2009. Learned counsel for the petitioner submits that the petitioner has not been specifically named in the FIR. It 3 is also submitted that despite the passage of so much time nothing specific has been found during the course of investigation against the petitioner. It is contended that even the enquiries, including the Court of enquiry, conducted by the authorities did not find the petitioner guilty of any of the charges. It is thus, urged by learned counsel that the suspension of the petitioner is wholly unjustified. Learned counsel for the petitioner emphasizes the fact that from the post mortem report also it was evident that the deceased had consumed alcohol and it has come during the enquiries conducted by the SSB authorities that the deceased was a habitual alcoholic. The further fact that the post mortem report does not mention the cause of death goes to show that the petitioner is being falsely implicated in the death of the deceased and thus, the suspension of the petitioner is unjustified. The further submission of learned counsel is that in terms of Section 87 of the SSB Act, 2007 the person who has been acquitted or convicted of an offence by a Force Court cannot be tried again for the same offence by a Criminal Court and thus the criminal proceeding against the petitioner is illegal and no suspension order could have been 4 passed on the basis of such an illegal proceeding. Learned Central Government counsel, on the other hand, submits that from the FIR it is clear that in the course of departmental enquiries it was found that the deceased constable had been beaten up on 16.10.2009 between 10 to 11 A.M. by the employees of SSB as a result of which he received a large number of injuries which have been found in the post mortem report also and he was brought dead around 12.00 Noon in the Health Centre, Nanpara. It is urged by learned counsel that the petitioner who is a Deputy Commandant, was on the said date, incharge Commandant of the Battalion and it is evident from the impugned order dated 8.4.2011, which indicates the circumstances for the order of suspension, that constable Kailian Thang misbehaved with certain Mahila constables and he was made to lie on his stomach on a table, his hands and feet were tied and then beaten up with a stick as well as kicked all over his body which explains the ante-mortem injuries on his body. It is further stated that he was beaten up by many personnel including the petitioner and after being beaten kept tied on the table for above 30-40 minutes unattended and later taken to the unit MI room and from 5 there shifted to the Civil Hospital, Nanpara where he was pronounced as brought dead. On the basis of the same the FIR has been lodged and the police is investigating the matter; accordingly in terms of Rule 41(1)(iii) the order of suspension has been passed . On a consideration of the rival submissions of the parties and in the facts and circumstances of the case, it is evident that under Rule 41(1)(iii) it is provided that the appointing authority or any other authority empowered in that behalf by the President by general or special order, may, at its discretion, place a person serving under him, under suspension where a case against him in respect of any civil offence is under investigation, inquiry or trial. It is submitted that since the criminal case is under investigation against the petitioner, hence the competent authority was justified in passing the order of suspension against the petitioner. This Court finds sufficient force in the said submission in terms of the relevant SSB Rules. The reliance by learned counsel for the petitioner on Section 87 of the said Act is wholly misplaced as there is nothing on the record to show that the petitioner has been 6 either acquitted or convicted of any offence by a Force Court so as to render his prosecution before a criminal court contrary to law. So far as the various other defence raised on behalf of the petitioner that the deceased was a habitual alcoholic and had died on that account is concerned, that is a matter for the police to investigate. The only issue that arise in the present matter is as to whether the authorities have justifiably exercised power which is vested in them under the statutory rules or not. This Court finds that they were justified in exercising their authority in terms of Rule 41(1)(iii) of the Rules. The writ application is, thus, devoid of merit and it is accordingly dismissed. S.Pandey ( Ramesh Kumar Datta, J.)