IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.262 of 2008 AKHILESH KUMAR SHARMA Versus THE STATE OF BIHAR & ORS ----------- For the appellant : Mr.Yaduvansh Giri, Senior Advocate Mr. Bindhyachal Singh,Advocate Mr. Prashant Kumar,Advocate For the respondents 1 to 6 : Mr.P.K.Verma, Additional Advocate General-XI -------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----- Dated, the 26th August, 2008 We heard Mr. Y.V.Giri, the senior counsel for the appellant. 2. The appellant is an unsuccessful petitioner. In the writ petition filed by him, he prayed for quashing the memo dated 04th April, 2007, whereby he has been placed under suspension under rule 9(2) (a) as well as 9(1)(c) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (For short, „Bihar CCA Rules, 2005‟). 3. Bereft of unnecessary details, a few admitted facts may be noticed by us first. On 17th March, 2007, a criminal case under Sections 7/13(2) read with Sections 13(1) (d), 8 and 9 of the Prevention of Corruption Act, 1988 (for short, „PC Act‟) was - 2 - registered against the petitioner. He was taken in custody on that very day. On 04th April, 2007, the order came to be issued suspending the petitioner with effect from 17th March, 2007 in exercise of powers under rules 9(2) (a) as well as 9(1) (c) of the Bihar CCA Rules, 2005. A charge sheet before the criminal court upon completion of investigation came to be filed against the petitioner on 10th May, 2007. The petitioner is said to have been released on bail on 20th July, 2007. The disciplinary proceedings against the petitioner have also been initiated and the departmental charges are said to have been framed on 28th December, 2007. 4. The thrust of the submission of the senior counsel is that the order of suspension dated 04th April, 2007 is relatable to rule 9(2) (a) of Bihar CCA Rules, 2005 only and, therefore, upon release of the petitioner on bail on 20th July, 2007, for want of any subsequent order of suspension having been issued, the order of suspension dated 04th April, 2007 stands automatically revoked. He placed reliance upon two decisions of this court, namely; (i) Satya Narayan Pd Shrivastava Vs. State of Bihar & others, 1978 BBCJ 208 and (ii) Vidya Singh Vs. State of Bihar & ors, 1993(2) PLJR 597. 5. The senior counsel would also urge that although the order dated 04th April, 2007 mentions invocation of rule 9(1) (c ) of the Bihar CCA Rules, 2005 as well but the said rule could not have been invoked as the special provision contained under rule 9(2) (a) was invoked after the petitioner was taken in custody and his - 3 - detention continued for a period exceeding forty-eight hours. He also urged that simultaneously departmental proceedings has been initiated and since the departmental charges were not framed within ninety days of the order of suspension, the order of suspension stands revoked under rule 9(7) of the Bihar CCA Rules, 2005 also. 6. After giving thoughtful consideration to the submissions of the senior counsel and upon consideration of the entire matter, we find the submissions devoid of any substance. 7. Rule 9 of the Bihar CCA Rules, 2005 deals with suspension of a government servant. It provides 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 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. - 4 - 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 - 5 - 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.” 8. Inter alia, under rule 9 (1) (c), if a government servant is accused of a criminal offence and such criminal offence is under investigation, inquiry or trial, the competent authority, being satisfied that it was expedient to suspend the government servant in public interest, may pass an order of suspension. Rule 9(2) is a provision of legal fiction. As per the said provision, if a government servant remains in custody for a period exceeding forty-eight hours, he is deemed to have placed under suspension by an order of competent authority. Where the government servant has been suspended under rule 9(2) by way of legal fiction, the period of deemed suspension comes to an end if the government servant reports for duty. If the government servant is to be suspended, then such action may be taken after acceptance of joining and by issuing a separate order under rule - 6 - 9(1) (a) or (b) or (c), as the case may be. It is pertinent to notice that in the present case, the competent authority, not only invoked rule 9(2) (a), but simultaneously invoked rule 9(1)(c) in issuing an order of suspension. The order dated 04th April, 2007 is a composite order issued in exercise of the power under rule 9(1) (c) as well as rule 9(2) (a). In our opinion, where an order of suspension has been passed by a competent authority invoking rule 9(1) (c) and rule 9(2) (a) simultaneously, upon release of the government servant from the custody, the order of suspension cannot be said to have come to an end automatically by legal fiction under rule 9(3)(i), nor a fresh order of suspension is required as there is already an order under rule 9(1) (c). 9. In the case of Satya Naraian Prasad , the Division Bench of this Court considered the matter thus: 6. Learned Government Pleader appearing on behalf of the respondent-State, however, pointed out that in the aforesaid judgments only part of rule 99 was taken into consideration, and, as such, the point at issue needs reconsideration by a larger Bench. According to the learned Government Pleader, rule 99 applies under three contingencies, (i) when a proceeding has been taken for arrest for debt, (ii) when a proceeding has been taken on a criminal charge (iii) when the person concerned is under preventive detention. Then such a Government servant should be considered as under suspension for the periods during which (i) he is detained in custody, (ii) he is undergoing imprisonment, (iii) until termination of the proceeding taken against him, and (iv) until he is released from detention i.e., from preventive detention. Learned Government Pleader has submitted that in view of the language of rule 99, in certain circumstances, a Government servant can be considered to be under suspension until the termination of the proceeding, which will mean termination of the proceedings taken on a criminal charge. In such a situation, according to him, it cannot be said that power under rule 99 is - 7 - co-extensive upto the day of release from custody only: it can extend even upto the termination of the proceedings taken against him on a criminal charge, and in the instant case admittedly as the criminal proceeding has not been terminated, the order under rule 99 cannot be held to be invalid. No doubt, at a first impression this argument looks attractive, but I shall immediately show that if rule 99 is read along with rule 100, it is difficult to come to this conclusion. Rule 100 empowers the authorities concerned to put a Government servant, against whom a criminal charge or a proceeding for arrest for debt is pending, under suspension “during period when he is not actually detained in custody or imprisoned (e.g, while released on bail)”. If it is held that the order under rule 99 can remain in force till the proceeding which has been taken on a criminal charge is terminated, then there was no necessity of making a specific provision to cover that very situation under rule 100 when such person is not actually detained in custody. If rule 99 is interpreted to cover even that period, then, in my view, rule 100 will be redundant. It is well settled principle of construction that different sections or different rules should not be interpreted in a manner which may result in any of the sections or the rules being held to be redundant, and in such a situation Courts have also construed such sections and rules in a harmonious manner so as to give justification for their existence. In my opinion, applying the aforesaid principle the two rules have to be interpreted to mean that under rule 99 a Government servant is to be considered as under suspension only for the period during which he is detained in custody or is undergoing imprisonment. After he is released from custody, then in order to put him undesr suspension, a specific orders under rule 100 has to be passed. I am in respectful agreement with the view expressed by this Court in the aforesaid three judgments, and I do not consider it necessary to refer the matter to a larger Bench. The result will be that it has to be held that the order of suspension passed on 1.8.1968 against the petitioner will be operative only upto 19.8.1968, i.e., till he was in custody. 7. Now the next question which remains to be answered is as to whether the aforesaid order under rule 100 (annexure-A to the counter-affidavit) passed during the pendency of the writ application saying that the petitioner will be deemed to be under suspension since the date on which he was released on bail can be interpreted to mean that even if this period is not covered by the order under rule 99, now it will be covered by the latter order and the petitioner will be deemed to be under suspension even during this period. - 8 - 8. Learned Government Pleader has submitted that the power under rule 100 is very wide and a person against whom a criminal charge is pending can be put under suspension, although he may not have been taken in custody. Similarly, he can be put under suspension after he has been released from custody during the pendency of a criminal charge. There is no difficulty in accepting this submission. But, the point is as to whether the power under rule 100 can be exercised retrospectively. What is the basic idea behind the order of suspension was interpreted by the Supreme Court in the case of the Management of Hotel Imperial, New Delhi and others V. Hotel Worker‟s Union where it was pointed out when power to suspend is granted either in the contract of employment or in the Statute or in the Rules framed thereunder, suspension has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render services and the master is not bound to pay. What will happen if factually the servant concerned has actually rendered service and master has actually paid? Can in such a situation what has actually happened be undone by passing a retrospective order of suspension? In my opinion, if it is held that under rule 100 a Government servant can be put under suspension retrospectively, it will lead to an anomalous position. Although the government servant concerned might have actually worked, but by passing a retrospective orders it will be deemed that during that period he has not worked at all. This aspect of the matter was examined by a Bench of the Calcutta High Court in the case of Hemanta Kumar Bhattacharjee vs. S.N.Mukherjee. In that case rules 1 and 2 of the Fundamental Rules were considered, which are more or less similar to rules 99 and 100 of the Service Code. In that connection it was observed: “Thus , the basic idea underlying the root word `suspend‟ and all its derivatives is that a person, while holding an office and performing its functions or holding a position or privilege, should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position of privilege. He is intercepted in the exercise of his functions or his enjoyment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such being the concept of a suspension order, suspension with retrospective effect is a contradiction in terms, The antecedent period which an order of suspension with retrospective effect might be intended to cover, would ordinarily be a period during which the person concerned had already performed the duties of his office or held the relevant - 9 - position. There can be no meaning in suspending a man from working during a period when the period is past and he has already worked or suspending a man from occupying a position or holding a privilege in the past when he has already occupied or held it.” It has been acknowledged on all counts that on the basis of a deeming clause, Legislature can bid to imagine certain things which actually, on the relevant date did not exist, but that is not to be presumed while construing orders which are purely executive in nature. Rule 100 has simply vested power in the authorities concerned to pass an order suspending a Government servant. It does not say in express term that such orders can be passed retrospectively as well. In my opinion, unless the Rules specifically provide, this cannot be done by purporting to pass an order under rule 100 of the Service Code. My this view is also supported by the judgments in the case of Satkari Chatterji v. Commissioner of Police, Calcutta and Sisir Kumar Chattopadhaya vs. The State of West Bengal and others. In such a situation, it is difficult to accept the contention raised on behalf of the respondent-State that the respondent-Director of Agriculture was well within his power in passing the aforesaid order dated 13.4.1976 (Annexure- A to the counter-affidavit) putting the petitioner under suspension since the date he was released from custody. In my view, that order will be operative only since 13.4.1976 when the order in question was passed.” 10. In the case of Vidya Singh, the following observations were made by the Division Bench: “3. The submission of the petitioner is that under Rule 99 of the Bihar Service Code, a person is deemed to be under suspension if he is taken into custody. However, after his release from detention custody, if he reports for duty, he must be allowed to join unless any other order of suspension has been passed under rule 100 of the Bihar Service Code. In this view of the matter the respondents are directed to permit the petitioner to join his duty and to pay to him all the dues payable to him in accordance with law. This is subject to any order that the competent authority may pass under rule 100.” 11. In the two decisions afore-referred, upon which - 10 - reliance has been placed by the senior counsel, rules 99 and 100 of the Bihar Service Code, 1952 were under consideration. Firstly, the two provisions, namely rule 99 and 100 of the Bihar Service Code, 1952 are not exactly identical to the provision contained in rule 9 [ to be specific rule 9(1) ( c) and rule 9(2) (a)]. Secondly, and more importantly, in none of these two cases the composite order under rule 99 and rule 100 was issued by the concerned authority. Had there been composite order of suspension by the authority invoking rules 99 and 100 together, ought we know what would have been the decision. 12. If a competent authority passes an order of suspension in the public interest against a government servant who has been charged in the criminal offence and the criminal offence is under investigation, inquiry or trial by invoking section 9(1) (c), we are afraid, such order of suspension is not rendered bad in law, merely because rule 9(2) (a ) was also invoked as the government servant had been in detention for a period exceeding forty-eight hours and later on he came to be released on bail. 13. In so far as the present case is concerned, it is an admitted position that on 17th March, 2007, a criminal case was registered against the appellant and he was also arrested on that date and by a composite order passed on 04th April, 2007, in exercise of the power under rules 9(1) (c) and 9 (2) (a), the appellant was suspended. It is true that the appellant was released on bail in the month of July, 2007 and in view thereof, his suspension under rule 9 (2) (a) may not - 11 - continue any longer, but his suspension under rule 9(1) (c) does not get affected. 14. The contention of the senior counsel based on rule 9(7), is noted to be rejected only. In view of what we observed above that suspension order under rule 9(1) (c) holds the field and is not rendered bad in law, rule 9(7) is of no help to the appellant. As a matter of fact, rule 9(7), in the fact-situation, has no application at all. Merely, because the appellant is being proceeded simultaneously in departmental proceedings and there was some delay in framing the departmental charges, that does not invalidate the order of suspension dated 04th April, 2007 which is founded in exercise of the power under rule 9(1) (c) of the Bihar CCA Rules, 2005. 15. We, thus, find that the single judge did not commit any error in dismissing the writ petition. 16. Appeal, accordingly, has no merit, and is dismissed in limine. R.M. Lodha, CJ Kishore K. Mandal, J. sunil