IN THE HIGH COURT OF JUDICATURE AT PATNA LPA. No.778 of 2009 --- 1. The State of Bihar 2. The Under Secretary, Department of Personnel & Administrative Reforms, Government of Bihar, Patna 3. The Deputy Secretary, Department of Personnel & Administrative Reforms, Government of Bihar, Patna 4. The District Magistrate, Madhepura 5. The Sub-divisional Officer, Uda-Kishunganj, Madhepura ……… Appellants Vs. Gyan Kumar Ram s/o late Hira Lal Ram, r/o village and P.O. Nadawan, District – Buxar …….. Respondent with CWJC. No.1562 of 2009 --- Nandlal Baitha, s/o Sri Dudha Nath Baitha, r/o village – Mainidih, P.S. – Batyan Bazar, District – Gopalganj …… Petitioner Vs. 1. The State of Bihar 2. The Principal Secretary, Road Construction Department, Bihar, Patna 3. The Deputy Secretary (Vigilance) Road Construction Department, Bihar, Patna ………….. Respondents For the Appellants/Petitioners: Mr. Binod Kanth, Sr. Advocate Mr. Shailendra Kr. Jha, Advocate Mr. P.N.Pathak, Advocate For the respondents: Mr. P.K. Vermak, AAG-XI Mr. Dhirendra Kumar Jha-2, Advocate --- P R E S E N T HON’BLE THE CHIEF JUSTICE, HON’BLE MR. JUSTICE SHIVA KIRTI SINGH & HON’BLE JUSTICE SMT. ANJANA PRAKASH --- P.K.Misra, CJ. C.W.J.C No. 1562 of 2009 has been filed for quashing an order of suspension mainly on the ground that the charge sheet was not framed within the period of three months as contemplated in Rule 9(7) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (the Rules, for brevity). The petitioner, by placing reliance upon the Division Bench decision in Chandra Sekhar Prasad v. State of Bihar (2008(1) PLJR 731), contended that an order of suspension passed in contemplation of the departmental proceeding cannot continue beyond three months unless charge is framed within the said period or there is an extension of the order of suspension which is to be recorded in writing. The State Government, on the other hand, placed reliance upon a Division Bench decision dated 6.8.2008 in L.P.A No. 459 of 2008 in the case of Jang Bahadur Singh v. State of Bihar and others (since then reported in 2008(4) PLJR 307). Since the learned single Judge found that there was an apparent conflict between the two Division Bench decisions, the matter was referred to a Division Bench for consideration. The Division Bench, by its order dated 19.3.2009, noticing the conflict between the two decisions, referred the matter for consideration by a larger Bench. While doing so, the Division Bench further directed that the proceedings should be completed within three months and if the proceedings are not completed within the said three months, then the suspension of the petitioner shall be revoked. It is stated by the learned senior counsel appearing for the petitioner that in fact the order of suspension was subsequently revoked on account of the fact that the proceedings could not be completed within three months. Therefore, for all practical purposes, C.W.J.C No. 1562 of 2009 has become infructuous, in the sense that the order of suspension, which was being impugned, is no longer in existence. Be that as it may, since the matter was referred to a larger Bench, the learned senior counsel appearing for the petitioner and the learned counsel appearing for the State have made their submissions on the main point of reference viz. relating to the interpretation of Rule 9(7) of the Rules and the proviso thereof. 2. L.P.A No. 778 of 2009, which is directed against the order of a learned single Judge in C.W.J.C No. 18180 of 2008 quashing an order of suspension on the ground that the charge sheet had not been framed within the stipulated period of 90 days, was also referred to a larger Bench by order dated 10.9.2009 on account of the apparent conflict between the two decisions reported in Chandra Sekhar Prasad’s case (supra) and Jang Bahadur Singh’s case (supra). In other words, in both the matters the basic question being the same, they were heard together and the counsel for the parties have made their submissions. 3. Before considering the specific provision contained in the Rules, we feel it appropriate to notice the decision of the Supreme Court, relating to the power and effect of suspension of a Government servant, in R.P Kapur v. Union of India and another (AIR 1964 SC 787). The Supreme Court observed: “(10) …………..The general law on the subject of suspension has been laid down by this Court in two cases, namely, Management of Hotel Imperial, New Delhi v. Hotel Workers‟ Union, (1960) 1 SCR 476 : (AIR 1959 SC 1342) and T. Cajee v. U. Jormanik Siem, (1961) 1 SCR 750 : (AIR 1961 SC 276). These two cases lay down that it is well settled that under the ordinary law of master and servant the power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and the servant but must arise either from an express term in the contract itself or a statutory provision governing such contract. It was further held that an order of interim suspension could be passed against an employee while inquiry was pending into his conduct even though there was no specific provision to that effect in his terms of appointment or in the rules. But in such a case he would be entitled to his remuneration for the period of his interim suspension if there is no statute or rule existing under which it could be withheld. 11. The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. ........... Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. .........”. 4. With the above prefatory concept, it is necessary to notice the relevant rules. Rule 9 of the Rules, being relevant, is extracted hereunder: “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 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. (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 along with 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 revoked if the charge- sheet is not framed.” 5. A careful perusal of the aforesaid Rule 9 makes it clear that an order of suspension can be passed under Rule 9(1)(a) in contemplation of a disciplinary proceeding or while disciplinary proceeding is pending. Under Rule 9(1)(b) the appropriate authority can also suspend an employee if it is of the opinion that the employee has engaged himself in activities prejudicial to the interest of the security of the State. Under Rule 9(1)(c), the Government servant can also be placed under suspension if the competent authority is satisfied that it is expedient to suspend such a Government servant in public interest, where a criminal case against the Government servant is under investigation, inquiry or trial. An analysis of Rule 9(1)(a) read with Rule 9(7) of the Rules makes it clear that the competent authority is empowered to suspend a Government servant in contemplation of a disciplinary proceeding or during the pendency of the disciplinary proceeding. However, if the suspension order is passed in contemplation of a disciplinary proceeding, the charge sheet must be framed by the disciplinary authority within three months from the date of issue of the suspension order. If the charge sheet is not framed within the said three months, the suspension order shall be revoked, unless the competent authority passes an order renewing the suspension along with the reasons to be recorded in writing for the delay in framing of the charge sheet. Such extension of the period of suspension in contemplation of a departmental proceeding can remain in vogue only for a further period of four months and if, within the extended period of four months, charge sheet is not framed „the suspension order shall stand revoked‟. 6. In Chandra Sekhar Prasad’s case (supra), the order of suspension had been passed in contemplation of a disciplinary proceeding. However, the charge sheet was not framed within three months. After the expiry of three months, no specific order of extension was issued nor was charge sheet framed within a further period of four months. The Division Bench, while considering the legality of the order of suspension, observed as follows: “4. In the facts and circumstances and in the light of statements made by learned counsel for the appellant petitioner, we do not propose to go into the merit of the order dated 3.10.2007. Accepting the statement of learned counsel for the appellant-petitioner to be correct, the suspension order automatically comes to an end on expiry of three months from the date of the order where no charge-sheet has been issued before the expiry of three months or no order extending the period of suspension has been made by a reasoned order. 5. Since according to learned counsel for the appellant both things have not happened, the suspension order has come to an end automatically. However, in case either of the conditions has been satisfied before 3rd January, 2008, the suspension order shall remain in force.” 7. In Jang Bahadur Singh’s case (supra), the suspension order was passed in contemplation of a disciplinary proceeding. Even though no charge sheet was framed within the period of three months and no specific order extending the suspension was passed, the charge sheet was framed within a few days after the expiry of three months. However, the delinquent employee challenged the continuance of the order of suspension mainly on the ground that charge sheet having not been framed within a period of three months as contemplated, the order of suspension came to an automatic end on the expiry of three months. While repelling such contention, the Division Bench observed as follows: “5. A plain reading of the aforesaid rule would clearly show that there is no automatic revocation of the suspension order on expiry of three months from the date of issue of suspension order, even if the charge-sheet has not been served within that time. This becomes apparent if the provision is closely looked. What rule requires is that charge-sheet must be framed within three months from the date of issuance of suspension order. If it is not done then the authority shall revoke the suspension order unless he passes an order renewing suspension for the reasons to be recorded in writing. If within four months therefrom the charge-sheet is still not framed, then, order of suspension stands revoked automatically. The expression used, „the suspension order shall be revoked‟ in contra distinction to the expression used in the proviso appended thereto, „the suspension order shall stand revoked‟ reflects the rule makers intention. By the use of expression, „the suspension order shall be revoked‟, the rule makers have made a provision that in case the charge-sheet is not served within three months from the date of issue of suspension order and the suspension order is not renewed the authority shall pass an order revoking the suspension order. In other words, the provision contemplates issuance of an order by the authority revoking the order of suspension on expiry of three months where charge-sheet is not served within three months from the date of issue of suspension order. It is altogether different where within four months of the expiry of three months the charge-sheet is still not served. Then the effect is that the suspension order by operation of law stands revoked. In that situation, it is not necessary that the authority must pass an order5 revoking suspension order but by operation of law the order of suspension stands revoked. The use of two different expressions in the same provision is indicative of the intention of the rule makers. 6. xx xx xx xx xx 7. In the present case, the order of suspension has not been revoked by the authority. It is an admitted fact that within twenty days of expiry of three months, charge-sheet has been served upon the petitioner. Obviously, in this view of the matter, the suspension order does not stand automatically revoked. Merely because there has not been any specific order of renewal of suspension, it does not affect the validity of suspension order. Once the charge-sheet has been framed within four months from the expiry of three months of the date of issue o9f suspension order, by not specifically renewing the order of suspension while framing charge-sheet, at best it can be said that some irregularity has been committed by the authority but that does not render the order of suspension illegal.” It is thus apparent that there is some divergence of opinion, as reflected in the two reported judgments noticed above. 8. The basic question is, whether the order of suspension automatically comes to an end on the expiry of three months if charge sheet is not framed within the said period of three months and no order of extension is passed for reasons to be recorded in writing. 9. It is true that Rule 9(7) of the Rules does not specifically state, unlike proviso to Rule 9(7), that on failure to frame the charge-sheet within three months, the order of suspension is deemed to be revoked or „shall stand revoked'. The rule provides in no uncertain terms that „charge-sheet must be framed within three months‟. The consequence of failure to do so is envisaged by providing „….. failing which on expiry of three months the suspension order shall be revoked.‟ This does not leave any discretion with the authority not to revoke the suspension. The only alternative left with the authority if he intends to extend the order of suspension is to pass an order extending such suspension. However, even this discretion is controlled by the requirement that he is required to pass orders „renewing the suspension along with reasons to be recorded in writing‟. It is further contemplated that the reasons should be „for the delay in framing of charge-sheet‟ and not for any other reason such as seriousness of the allegations, etc. 10. It is, no doubt, true that whether the provision is directory or mandatory is not merely dependent upon the language used, but also on several other factors. It is generally construed that if a statute imposes a public duty to perform but does not envisage the consequences of failure, the provision may be construed as directory. Can it be said in the context of Rule 9(7) that the consequence of the failure to perform duty has not been envisaged? The rule categorically says that on failure to frame charge-sheet within three months, the suspension order shall be revoked. The rule also envisages the possibility of avoiding such a consequence by clearly enabling the competent authority to renew the suspension order. But such order can be passed only for reasons to be recorded in writing. 11. The matter can be looked into from another angle. The rule empowers the authority to pass orders renewing the suspension by reasons to be recorded in writing. The recording of reason is apparently a condition precedent for extending the period of suspension. By holding that the object of extending the suspension period can be achieved by keeping quiet and simply sitting over the matter would be anomalous. The reasons must be relatable to the cause of delay in not framing charge-sheet within three months. If it is construed that the object of continued suspension even in the absence of any order renewing the suspension can be achieved by simply not passing any order the same would be defeating the very specific provision contained in Rule 9(7) of the Rules. It would only mean that what cannot directly be achieved could be achieved indirectly by simply not passing any order. It would mean that instead of there being an express order extending the suspension, there would be an „implied order‟ extending such suspension. 12. It is a well entrenched concept that when the manner of exercising power is laid down, such power is to be exercised in the manner prescribed or not at all (see Indian Banks’ Association, Bombay and others v. Devkala Consultancy Service and others (2004) 11 SCC 1). 13. An order of suspension, in contemplation of a departmental proceeding, which has a life span of three months, can be renewed for a further period of four months by an order renewing the suspension for reasons to be recorded in writing. The manner of exercising such a right is clearly prescribed and, therefore, it has to be exercised in the manner prescribed and not in any other way. 14. Even though we have come to the conclusion that on failure to frame charge sheet within three months from the date of issue of suspension order, the suspension shall be revoked unless the competent authority renews the suspension order for reasons to be recorded in writing for the delay in framing charge sheet, the question still remains to be considered is whether on the expiry of three months, the concerned employee is deemed to be reinstated automatically without any order being passed. 15. Although Rule 9(7) of the Rules, in no uncertain terms, lays down that the charge-sheet must be framed within three months from the date of issue of the suspension order, it does not lay down that on failure to frame charge-sheet within three months, the suspension order shall be deemed to have been revoked or „shall stand revoked‟, as otherwise clearly stipulated in the proviso to Rule 9(7). It provides that the suspension order shall be revoked on failure to frame charge-sheet within three months. It also empowers the authority to pass an order renewing the suspension. There is no express provision that unless the order extending the suspension is passed before expiry of the period of