Full Judgment
M.Y. Eqbal, J.
1. In this writ application, the petitioner has prayed for quashing the order dated 9-2-1996 as contained in Annexure-1 issued by the Deputy Commissioner, Hazaribagh whereby the petitioner has been suspended in purported exercise of powers under Rule 3(i)(ii)(iii) of the Bihar Subordinate Services (Conduct, Discipline & Appeal) Rules and further for a direction to the respondents to pay full salary to the petitioner since the date of suspension.
2. Brief fact of the case is that at the relevant time, the petitioner was working as Assistant Accountant District Treasury Office, Hazaribagh. During that period it came to the notice of the respondents that there had been withdrawal of huge amount from different treasuries of the district by the Animal Husbandry Department and as a result of which F.I.R. was lodged against various officers of the Animal Husbandry department and the Treasury Department. Because of the aforesaid fact the Director, Treasury, Bihar, Patna issued an order being No. 61 dated 6-2-1996 which was communicated by FAX to the Deputy Commissioner, Hazaribagh empowering him to suspend the officials whose names appeared as accused in the F.I.R. lodged in connection with defalcation and unauthorised withdrawal of money from the Treasury. Pursuant to that letter respondent No. 3, the Deputy Commissioner, Hazaribagh, by the impugned order, put the petitioner under suspension.
3. Mr. A.K. Sinha, learned Sr. Counsel appearing on behalf of the petitioner assailed the impugned order of suspension as being illegal and wholly without jurisdiction. Learned Counsel made three-fold submissions. Learned Counsel firstly submitted that the Director is not authorised to delegate his power which is contrary to Rule 3 of the aforesaid Rules. Learned Counsel then submitted that even assuming that the delegation of power by the Director to the Deputy Commissioner was legal, the delegatee cannot exercise power beyond the area of delegation. In other words, according to the learned Counsel, the Director delegated his power to the Deputy Commissioner to suspend all those employees who are named accused in the F.I.R. Admittedly, the petitioner is not named in the F.I.R. and, therefore, the order of suspension against him is bad in law. Learned Counsel further submitted that exercise of power by the Deputy Commissioner, Hazaribagh under Rule 3(i)(ii)(iii) of the Rules amounts to non-application of mind inasmuch as neither any criminal case is pending nor a departmental proceeding has been initiated against the petitioner. Learned Counsel lastly submitted that in any case the order of suspension cannot continue for more than two years without initiation of any departmental proceeding and the petitioner cannot be put under suspension for an indefinite period.
4. On the other hand, Mr. M.S. Anwar, learned Counsel appearing for the respondents-State submitted that the delegation of power by the Director to the Deputy Commissioner is perfectly legal and valid and the order of suspension cannot be held to be bad in law on this ground. Learned Counsel then submitted that in any view of the matter, the Deputy Commissioner who is the controlling authority, is empowered under law to pass an order of suspension having regard to the amendment brought in the aforesaid rules. Learned Counsel further submitted that from perusal of the F.I.R. it will appear that there was suspicion that other employees of the Treasury including the petitioner were also involved and, therefore, he was rightly suspended by the order passed by the Deputy Commissioner. However, learned Counsel very fairly admitted that after lodging of the F.I.R. the police submitted charge-sheet but the petitioner's name is not there. He, therefore, submitted that the order of suspension can be revoked only after giving an opportunity to the respondents to conclude the departmental inquiry within a specified time.
5. So far, the first submission of Mr. A.K. Sinha, learned Counsel for the petitioner regarding invalidity of the delegation of power is concerned, 1 am of the definite opinion that there is no force in the submission made by the learned Counsel. From perusal of the FAX (Annexure-2) it is evident that the Director has authorised and delegated his power to the Deputy Commissioner to suspend all those officials of the Treasury against whom F.I.R. was lodged for the illegal and unauthorised withdrawal of money. Learned Counsel quoted Rule 3-A of the Bihar Subordinate Services (Discipline & Appeals) Rules, 1935. It is worth to mention that Rule 3-A of the aforesaid Rules and similar rule, namely, Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules have been amended by the Governor of Bihar exercising powers under Article 309 of the Constitution whereby the controlling authority has also been empowered to put any employee under suspension.
6. It is well settled that the whole purpose of delegating power to the immediate superior authority of a employee concerned is to have an effective control over the subordinate staff so as to run the administration effectively, efficiently and sincerely. Now the moot question which falls for consideration is whether continuance of the order of suspension of the petitioner for indefinite period if sustainable in law. Admittedly, the petitioner was not named in the F.I.R. but even then, he was put. Under suspension. If the submission of the learned Counsel for the State is accepted for a moment that there was suspicion as against the petitioner about his involvement in the commission of the offence and, therefore, he was rightly suspended, it is not disputed by the learned Counsel that after lodging of the F.I.R. and thorough investigation was done by the police and a charge-sheet was submitted wherein the petitioner's name was not shown but even thereafter, the petitioner has been continuing under suspension. From a perusal of the impugned order of suspension (Annexure-1), it will appear that the order of suspension was passed in purported exercise of powers under rule 3(i)(ii)(iii) of the aforesaid Rules. In other words under this rule an employee can be put under suspension where a disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation, inquiry or trial or where the concerned employee has caused death of his wife within a period of 7 years of the marriage. Admittedly, the aforesaid grounds were not available as against the petitioner for putting him under suspension. From the aforesaid facts, it is clear that the impugned order of suspension was passed in a routine manner without application of mind. The Deputy Commissioner was delegated with the power to put those employees under suspension who are named accused in the F.I.R. but the Deputy Commissioner issued a routine order putting other employees under suspension who are not accused in the F.I.R. If the Deputy Commissioner was of the opinion that other employees are also involved, he should have done it on the basis of prima facie evidence against them. In the case of State of Orissa v. Bimal Kumar Mohanty : (1995)ILLJ568SC , the Supreme Court observed:
It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf.
7. In the counter-affidavit, it is stated that the departmental proceeding could not be initiated against the petitioner because of the inability of the Deputy Commissioner to frame charge as the entire documents have been seized by the C.B.I. during investigation. It is stated that it was not possible to frame charge by the Deputy Commissioner.
8. As noticed above, admittedly the petitioner is not named in the F.I.R. and after investigation charge-sheet has been submitted as against the other officers whose involvement was, prima facie, proved during investigation. Prima facie, therefore, there is no material as against the petitioner for framing charge. Moreover, Rule 3 or Rule 3-A of the aforesaid Rules do not envisage that because of pendency of criminal proceeding in a connected matter against some other persons a public servant should be suspended and the suspension should continue indefinitely till disposal of the criminal case against such person. Besides the above, more than 3 years have passed since the date of suspension, no departmental proceeding has been initiated as against the petitioner and nothing has been brought to my notice by the respondents in their counter-affidavit to show prima facie the involvement of the petitioner in the alleged offence Taking into consideration all aspects of the matter, I am of the opinion that indefinite suspension of the petitioner cannot be sustained in law.
9. Having regard to the facts and circumstances of the case and the discussion made above, I have no option but to quash the order of suspension. Accordingly, this writ application is allowed and the impugned order of suspension is quashed. It is held that, the petitioner is entitled to his salary for the entire period of suspension.
Before parting with the order, I must observe that this Order will not debar the respondents-authority from passing a fresh order of suspension if any criminal case is instituted or any departmental proceeding is contemplated against the petitioner in future in connection with the alleged offence or any other misconduct.