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Judgment
Poonam Srivastav, J.—Heard counsel for the Petitioner and counsel appearing on behalf of the Respondents.
The instant writ petition is preferred challenging the Petitioner''s continuation in suspension even after having been released on bail. The prayer is for a direction in the nature of mandamus to pay full salary to the Petitioner, along with all consequential benefits with effect from 21.05.2008, the date on which the Petitioner reported for duty after being released on bail on 19.05.2008.
The Petitioner is an Executive Engineer in the Department of Water Resources and was posted in the Minor Irrigation Division, Dhanbad. He was arrested on 18.03.2008 red handed while accepting illegal gratification and a Vigilance Case No. 3 of 2008 was instituted against him. Consequent to the criminal proceeding, Petitioner was taken in custody on 18.03.2008 and thereafter, was placed under suspension, vide office order bearing 1213 dated 09.05.2008 (Annexure1 to the writ petition). The controversy in the instant petition revolves around the question that since the Petitioner was suspended under Rule 99 of the Jharkhand Service Code, 2001 and, therefore, after his release, the suspension order automatically came to an end.
Learned Counsel has stressed on Clause2 of the suspension order which states that the Petitioner, after being released from imprisonment, his headquarters would be the office of the Chief Engineer, Minor Irrigation, Water Resources Department, Government of Jharkhand, Ranchi. The order further states that the Petitioner will be entitled for subsistence allowance in accordance with the provision of Rule 96 of the aforesaid Jharkhand Service Code. The Petitioner after having been released on bail, he reported for duty at the office of the Chief Engineer, Minor Irrigation, Water Resources Department, vide letter dated 21.05.2008 (Annexure2 to the writ petition). It is further asserted in the writ petition that thereafter, the Petitioner regularly reported at the office of the Chief Engineer, but he has not been given salary and other allowances, though No. separate order under Rule 100 of the Code has been passed till date.
Learned Counsel has emphatically stated that since the order was passed under Rule 99 which specifically provides that the order of suspension will remain operative only for the limited period during the period of detention and thereafter a fresh order under Rule 100 is liable to be passed. In absence of such an order, continuation of suspension and nonpayment of his salary and other consequential benefits is a right which the Respondents are duty bound to grant.
Counsel appearing on behalf of the Respondents has disputed this contention and laid emphasis on the fact that continuation of the order of suspension cannot be said to be illegal, specially in view of Rule 49A of the Civil Services (Classification, Control and Appeal) Rules, 1930, whereunder a Government servant can be suspended not only when a departmental proceeding is pending but also when it is under contemplation. Sub-rule (5)(a) of Rule 49A provides that suspension continues until modified or revoked and, therefore, continuation of suspension of the Petitioner cannot be held to be illegal.
Counsel for the Petitioner placed reliance on a number of decisions. The first case is a Division Bench decision in Satya Narayan Pd. Shrivastava v. The State of Bihar and Ors. reported in 1978 BBCJ 208 and Vidya Singh v. The State of Bihar and Ors. reported in 1994 BBCJ 64. The third citation is Sidhi Nath Jha v. State of Bihar and Ors. reported in 1988 PLJR 1129 and followed by Jharkhand High Court in the case of Jayanti Prasad Singh v. State of Jharkhand and Ors. reported in 2010 (1) JCR 213. In all these cases, the Court held that after release of the employee, the authority concerned ought to have passed a fresh order under Rule 100 by disclosing the ground on which the suspension of the Petitioner was necessary. The Jharkhand High Court held that:
on a plain reading of provisions of Rules 99 and 100 together, it would be manifest that Rule 99 introduces the concept of ''deemed suspension'' of the Government servant during the period he is detained in custody. If the competent authority of the Government servant is of the opinion that during the pendency of the proceeding on the basis of the criminal charge, and pending departmental proceeding, the Government servant should be placed under suspension, even after his release from custody on bail, then a specific order of suspension has to be passed by the competent authority as required under Rule 100 of the Service Code.
Disputing these decisions and the argument of the Petitioner''s counsel, the Respondents have placed two decisions; Ranjit Kumar v. State of Jharkhand and Ors., 2003 (1) JCR 611 (Jha) and Lal Bahadur Singh Vs. State of Bihar and Others, decided on 19.08.2005.
After hearing the rival contentions on behalf of the Petitioner as well as the Respondents, I proceed to examine the two provisions, Rule 99 and Rule 100 of the Jharkhand Service Code, 2001. Rule 99 is quoted hereinunder:
Rule 99:
A servant of Government against whom proceedings have been taken either for his arrest for debt or on a criminal charge or who is detained under any law providing for preventive detention should be considered as under suspension for any periods during which he is detained in custody or is under going imprisonment, and not allowed to draw any pay and allowances (other than any subsistence grant that may be granted in accordance with principles laid down in Rule 96) for such periods, until the termination of the proceedings taken against him or until he is released from detention and allowed to rejoin his duties as the case may be. An adjustment of his allowances for such period should therefore, be made according to the circumstances of the case, the full amount being given only in the event of the Government servant being acquitted of blame or (if the proceeding taken against him, were for his arrest for debt) of its being proved that the Government servant''s liability arose from circumstances beyond his control or detention, being held by any competent authority to be unjustified....
Rule 100:
A Government servant against whom a criminal charge or a proceeding for arrest for debt is pending should also be placed under suspension detained in custody or imprisoned (e.g. while released on bail) if the charge made or proceeding taken against him is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and allowances the provisions of Rule 99 shall apply.
There is No. dispute regarding suspension of an employee during the period of his custody and also nonpayment of his complete salary during the period of suspension as provided under Rules 99 and 96 of the Jharkhand Service Code. The said provision also specifically states that complete salary or full amount is only to be given in the event the Government servant is acquitted of the blame or it is proved that the liability of the Government servant in the event he is arrested for nonpayment of debt was for a circumstance beyond his control and the competent authority is of the view that his detention was unjustified. Thus, the question of suspension order under Rule 99 does not call for either interpretation of the provision or any other view which could be adopted in the facts and circumstances of the present case.
Now, I proceed to examine Rule 100 of the Jharkhand Service Code and the arguments of the counsel on behalf of the Petitioner that Rule 100 makes it mandatory on the competent authority to pass a fresh order of suspension, after release on bail. So far the arguments on behalf of the Respondents that the suspension is under Rule 49A of the Civil Services (Classification, Control and Appeal) Rules, 1930, I am of the view that since the order of suspension specifically mentions that it is Rule 99 of the Jharkhand Service Code under which the Petitioner is suspended. No. other inference can be drawn since the order of suspension itself is vocal on the face of it. However, Rule 100 No. doubt, provides that a Government servant against whom charge is pending should be placed under suspension if the charge against him is connected with his position as Government servant and likely to embarrass. No. doubt, No. separate order has been passed and paragraph2 of the order also specifies that he has to report to the office of Chief Engineer at Ranchi, but this alone is not enough to set the order of suspension at naught.
A counter affidavit has been filed on behalf of the Respondents by Executive Engineer, Minor Irrigation Division, Dhanbad, he has specifically stated in paragraph6(f) that after thorough examination of the documents relating to the departmental proceeding and enquiry report as well as the report submitted by the Vigilance Bureau, the State Government was of the view that since the Petitioner was caught red handed while accepting bribe hence decided to continue the suspension of the Petitioner till the disposal of the criminal proceeding. Thus, apparently, the State Government was of the view that the Petitioner is liable to be kept under suspension since the proceeding taken against him is connected with his position as a Government servant and likely to embarrass him in the discharge of his duties.
The arguments of the Petitioner''s counsel is correct that the act alleged does not involve moral turpitude, but still the specific assertion of the decision of the State Government in paragraph6(f) cannot be said to be in violation of any of the Rules of the Service Code.
A supplementary counter affidavit has also been filed reaffirming the contention of the counter affidavit. Paragraphs 6 and 7 of the supplementary affidavit is quoted below:
That it is stated that in this connection, it is stated that the Petitioner was kept under judicial custody from 18.05.2008, as such, the Water Resources Department decided to suspend the Petitioner under Rule 99 of the Service Code w.e.f. the date he was taken on judicial custody. It is relevant to mention here that in the light of provision made in Rule 100 of the Service Code the State Government has also decided to continue the suspension of the Petitioner also after his release from judicial custody. The department has fixed his headquarter in the office of the Chief Engineer, Minor Irrigation, Ranchi. In this regard departmental memo No. 1213 dated 09.05.2008 has been issued. The said memo has been annexed in Annexure1 to the writ petition.
That with regard to the statements made in various paragraph of the writ petition filed by the Petitioner, the Respondents seek leave of this Hon''ble Court to rely on the averments made in the counter affidavit filed by the Respondents and on the aforesaid paragraphs of the present supplementary counter affidavit.
It is abundantly clear that the State Government has examined the objections raised by the Petitioner thoroughly and recorded a conclusive finding that the Petitioner was liable to continue under suspension till the conclusion of the criminal proceeding.
I am also of the opinion that Rule 99 of the Code contemplates a deemed suspension i.e. even if No. order of suspension is passed and an employee is taken in custody, it will be deemed that he is under suspension and would be entitled only to subsistence allowance in the event of his release. The deemed suspension will come to an automatic end. A close scrutiny of the two Rules do not necessarily involve passing of two different written order of suspension i.e. one when he is arrested and second order of suspension after his release. The two Rules are contemplated only when No. written order of suspension is passed at the first instance and the employee who is behind bars, is treated under suspension even in absence of a written order. After his release, since there is No. order of suspension, Rule 100 contemplates a fresh order of suspension, but it qualifies that the continuation of suspension, if causes an embarrassment in his continuation as a Government servant in discharge of his duties, the suspension order shall continue.
In the present case, the suspension order was passed after almost two months of his arrest, and just a few days before he was released on bail, therefore, evidently, the order of suspension is an order, with an intention that he shall continue till the criminal proceedings are not over. Merely mention of Rule 99 in the suspension order and nonmention of Rule 100 will not make the order ipso facto illegal and thus, claim of the Petitioner for the complete salary and consequential benefits and other entitlement is not valid. The Apex Court held in the case of Collector of Central Excise, Calcutta Vs. Pradyumna Steel Ltd., that mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. Paragraph3 of the said judgment is quoted below:
It is settled that mere mention of a wrong provision of law when the power exercised is available even though under a different provision, is by itself not sufficient to invalidate the exercise of that power. Thus, there is a clear error apparent on the face of the Tribunal''s order dated 23.06.1987. Rejection of the application for rectification by the Tribunal was, therefore, contrary to law.
Similar view was expressed in another case by the Apex Court in Union of India (UOI) and Another Vs. S.C. Parashar, The question that nonmention or wrong mention of relevant provision is inconsequential. Paragraph11 of the said judgment is quoted below:
Before adverting to the said question, we may record that wrong concession of a counsel on a pure question of law is not binding upon a party. It is furthermore trite that non-mentioning or wrong mentioning of a provision in an ordermay be held to be irrelevant if it is found that the requisiteingredients thereof were available on records for passing the same. We may further notice that the High Court proceeded on the basis that the penalty imposed upon him was a major penalty.
The counter affidavit is absolutely clear and the supplementary counter affidavit further supports the contention that the department considered it essential to continue the Petitioner in suspension till the criminal proceedings are over.
In the facts and circumstances of the case, I am of the considered view that the order of suspension or the Petitioner''s continuation in suspension is not illegal and cannot be quashed. The reasons have been already elaborated in the two counter affidavits and does not call for any further elucidation. The writ petition lacks merit and for the reasons detailed hereinabove, the Petitioner is not entitled for the complete salary and the consequential benefits, as claimed in the writ petition, till the outcome of the criminal proceeding. The attachment of the Petitioner to the head office at Ranchi, as mentioned in the suspension order, is only an order of attachment and cannot be said to bestow any right on the Petitioner. Thus, the Petitioner is not entitled to any benefit till culmination of the complete proceedings.
The writ petition is accordingly dismissed.