Ram Kumar Singh Vs. Water Resources Department - Court Judgment

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 116 of 2016 Ram Kumar Singh Son of late Rajendra Prasad Singh Resident of Flat No.401 Shyam Kunj, Kali Mandir Road, P.O. & P.S. Lalpur, District-Ranchi. .... Petitioner Versus 1. The State of Jharkhand, through Principal Secretary Water Resources Department, Nepal House, P.O. & P.S. Doranda, Ranchi.

2. Joint Secretary, Water Resources Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, Ranchi, Jharkhand. .... Respondents --- CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK --- For the Petitioner : M/s Rajendra Krishna, S. Ranjan, A. Sinha & N. Krishna, Advocates For the Respondents : Mr. Shahid Khan, SC Mines ----- CAV on 23.02.2016 Pronounced on 16 /03 /2016 Per Pramath Patnaik, J.

In the accompanied writ application, the petitioner has inter-alia prayed for issuance of writ of certiorari for quashing the impugned order dated 05.01.2016 (Annexure-7) issued under the signature of Joint Secretary, Water Resources Department, Government of Jharkhand pertaining to punishment of suspension on the allegations of committing irregularities in passing the building plan by giving benefit to a builder in Building Case No.1103/2008 and 706/2004 and for direction in the nature of mandamus commanding upon the respondents to revoke the impugned order (Annexure-7) suspending the petitioner.

2. Sans details, being an Assistant Engineer of Water Resources Department, the services of the petitioner was placed with the Urban Development Department vide letter dated 18.11.2006 and the petitioner was given the charge of the Town Planner in the Ranchi Regional Development Authority, Ranchi. In pursuance to the direction issued by this Court in W.P. (PIL) No.1531 of 2011 in the matter of Har Narain Lakhotia an FIR was 2 registered by CBI dated 30.03.2011 against unknown Officers/Officials of Ranchi Regional Development Authority Ranchi. During the investigation of the sanctioning of building plans the CBI alleged that while sanctioning of the building plan of the “Hotel Le Lac” the officials of the RRDA entered into criminal conspiracy among themselves and with one Binay Prakash and Building Construction Plans was passed vide B.C Case No.706/04 and 1103/08 giving benefit of the land on plot number 1735. Consequently all the concerned persons including the petitioner were arrested and was remanded to the judicial custody and the order was passed suspending the petitioner from services vide order dated 29.07.2011. The suspension order was passed under Rule 100 of Jharkhand Service Code vide memo dated 17.01.2013. After more than two years of suspension, the said order was revoked and the petitioner was posted in Minor Irrigation Quality Control Division Ranci vide notification dated 02.11.2013 and thereafter the services of the petitioner was placed to the Department of Panchayti Raj and the petitioner was posted as in charge District Engineer Zila Parishad Chatra with additional charge of Koderma vide Notification dated 31.12.2013. The beneficiary of the Building Plan M/s Ashlesha Corporation and Binay Kumar challenged the order of cognizance and the same has been quashed by this Court in W.P.(Cr.) No.319/2011 vide order dated 27.11.2015. It has been held in the said order that the Building Plan No.706/2004 and 1103/2008 have been passed in accordance with the Building Plan and there is no illegality/irregularity in the said plan. To the utter surprise and dismay more than two years of revocation of suspension again an order suspending under Rule 49(A) of the Civil Services (Classification, Control and Appeal) Rules vide memo dated 05.01.2016 has been passed which is impugned order in this writ application. 3 Mr. Rajendra Krishna, learned counsel for the petitioner has vehemently submitted that the petitioner cannot be suspended twice when earlier deemed suspension converted under Rule 100 and subsequently revoked tantamounts to double jeopardy causing great prejudice to him. Learned counsel further submits that the impugned order of suspension in absence of contemplated or pending departmental inquiry is not legally permissible. Learned counsel for the petitioner further submits that under Rule 49A no power of review can be exercised. Moreover, there is change of circumstances and impugned order has been passed in mechanical manner which is smacks of non-application of mind and colourable exercise of power. Learned counsel for the petitioner, during course of argument has referred to the decisions reported in 1995 (2) PLJR89in the case of Govind Prasad Sinha Vs. The State of Bihar & Another. It has been interalia held that the order of suspension is not to be lightly passed as its consequences are more serious in nature than several of the penalties prescribed under the rules. It has disastrous impact on the fair name and good reputation of the employee which might have been earned and built up by him in the course of many years of service. It is, therefore imperative that utmost caution and circumspection must be exercised in passing orders of suspension. It has been interalia held in paragraph 9 of the said judgment that it is not sufficient for the exercise of power to place of employee under suspension for the second time after exercise of power of revocation of suspension by the competent authority and in as much as such exercise of power will amount to review of the earlier order which unless is provided under the rules cannot be exercised. It is well settled that the administrative authority does not have inherent power of review. Learned counsel for the petitioner has referred to 4 the decisions reported in 2013 (4) JCR406(Jhr) in the case of Ganauri Mistry Vs. State of Jharkhand & Ors. wherein this Court after considering the dictum of the Apex Court and other High Courts has been pleased to summarize which is as under:-

“15. When an appointing authority proceeds 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 order of suspension should not be passed in a routine or automatic manner. It is not necessary to place a Government employee under suspension in every case where disciplinary proceedings are contemplated. Appointing authority must be satisfied that continuance of the employee in the same post or at the same station may cause a reasonable apprehension that it will influence or prejudice the enquiry and the disciplinary proceedings. It should always be kept in mind by the appointing authority that though suspension is not a punishment, however, it visits the employee with serious civil consequences and loss of reputation and prestige. Therefore, an order of suspension should not be passed lightly, casually or without proper application of mind.”

3. Per-contra a counter-affidavit has been filed on behalf of respondents repelling the contentions made in the writ application. In the counter- affidavit, it has been submitted that the petitioner was posted as Town Planner in the Ranchi Regional Development Authority, Ranchi (in short R.R.D.A) a PIL was filed before the Hon'ble Court and the said PIL was disposed of on 22.03.2011 with observations. Consequently upon the observations and direction of the Hon'ble Court the matter was investigated by Central Bureau of Investigation, Anti Corruption Branch, Ranchi which resulted in two criminal case no.RC03(A) 2011. R dated 30.03.2011. During investigation of the matter, the petitioner was arrested by CBI, ACB, Ranchi on 15.06.2011 and was put under judicial custody and thereafter the petitioner was put under suspension under Rule-99 of the Jharkhand Service Code dated 29.07.2011 and when the petitioner was released from judicial custody, his suspension 5 was extended under Rule-100 of the Jharkhand Service Code and the order of suspension was revoked vide memo dated 02.11.2013 issued by the Under Secretary, Water Resources Department, Government of Jharkhand. A charge- sheet has been submitted against the petitioner and another employee and against Shri Naresh Kumar Singh, Junior Engineer. The respondents on being satisfied with the seriousness and gravity of the charges contained in the memo of charges received from the Investigating Agency i.e. CBI, ACB, Ranchi decided to initiate departmental proceeding under Rule-55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 and simultaneously placed under suspension under Rule-49A of the aforesaid Rule vide order dated 05.01.2016. The present suspension order has been passed under Rule- 49A of the Civil Services (Classification, Control and Appeal) Rules, 1930 while ordering a departmental proceeding under Rule-55 of the said Rule. It has further been contended that the acts of omission or commission of the petitioner need to be addressed in the light of Para-7 of circular dated 23.08.1963 issued by the Appointment Department, Government of Bihar under Appendices -J, Rule-166/167 of Board's Miscellaneous Rule, 1958. The circular stands for the Government servant involved in criminal misconduct, departmental proceedings and prosecution. As per the information available, the petitioner has not yet been acquitted in the criminal case No.RC03A)/2011 (R) pending in the court of Special Judge, CBI, Ranchi. It has further been submitted that the petitioner is trying to take shelter of the order dated 27.11.2015 passed by the Hon'ble Court in W.P. (Cri) No.319 of 2011. The said order relates to quashing of FIR against M/s Ashlesha Corporation Limited and the writ petition filed by the petitioner bearing W.P. (Cr.) No.314 of 2011 is still pending for disposal. It has further been submitted that the 6 suspension is not a punishment under Rule-49A of the Civil Services (Classification, Control and Appeal) Rule, 1930 while ordering a departmental proceeding under Rule-55 of the said Rule. Therefore, prayer has been made for dismissal of the writ in limine and bereft of any merit.

4. Learned counsel for the respondents has assiduously argued that in view of seriousness and gravity of charges, the respondent has decided to initiate departmental proceeding under Rule-55 of the aforesaid rules, therefore, suspension under Rule-49A of the aforesaid rule which is legally justified.

5. Learned counsel for the petitioner, on the other hand, has referred to reply to the counter-affidavit filed whereas it has been submitted that presently the petitioner was posted as Incharge, District Engineer, Zila Parishad, Chatra and the petitioner is not working for the present or even remotely connected with the Ranchi Regional Development Authority (R.R.D.A.) for misconduct is being proceeded departmentally is entirely related with the aforesaid authority. Therefore, debarring the petitioner from the work in the office at Zila Parishad, Chatra will not be the object for putting a person under suspension. Learned counsel for the petitioner further submits that Rule 99 and Rule 100 of the Jharkhand Service Code is pari materia with Rule 49A of the Civil Services (Classification, Control and Appeal) Rule, 1930. In such situation, a person is proceeded under both the aforesaid provisions given in different Rules for the same cause of action and the second rule is that, even the Rule 49A of the Civil Services (Classification, Control and Appeal) Rule, 1930 does not incorporate the power of review. Learned counsel for the petitioner further submits that the circular cited in the counter-affidavit that the procedure is meant for a 7 different purpose and not connected with the issue of suspension and hence it is all irrelevant for the purpose of issue raised in the writ application.

6. After hearing the learned counsel for the respective parties at length and on perusal of the relevant documents on records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and legal aspects: (i) In the case in hand, admittedly an FIR was lodged by the CBI, pursuant to the direction given by this Court in W.P.(PIL) No.1531 of 2011 pertaining to sanction building plans, petitioner alongwith others was arrested and was placed under suspension vide order dated 29.07.2011. After more than 2 years, the said order was revoked vide notification dated 02.11.2013. Thereafter, the petitioner was placed under Panchayti Raj from where he was posted as in charge District Engineer Zila Parishad Chatra with additional charge of Koderma vide memo dated 31.12.2013 issued by Panchayti Raj and NREP, Government of Jharkhand and after two years of revocation of suspension, order of suspension under Rule-49A of the Civil Services (Classification, Control and Appeal) Rules dated 05.01.2016 has been passed which has been impugned in the writ application. (ii) The counter-affidavit filed by the respondents does not disclose that the continuance of the petitioner in any manner does not create a reasonable apprehension that he would be influence or prejudice the enquiry or the disciplinary proceeding therefore, utmost caution and circumspection ought to have been exercised in passing the order of suspension. In the instant case, it appears that order of suspension has been passed in a mechanical manner which is nothing but an outcome of non-application of mind. 8 (iii) Although, as referred to in the foregoing paragraphs this Court by referring the dictum of Hon'ble Apex Court and other has been pleased to summarise that it would always be kept in mind by the appointing authority that though suspension is not a punishment, however, it visits the employee with serious civil consequences and loss of reputation and prestige. Therefore, an order of suspension should not be passed lightly, casually or without proper application of mind. Moreover, no cogent reasons has been assigned since the petitioner has been posted at Chatra and is not remotely connected with Ranchi Regional Development Authority (R.R.D.A.) and which has been decided to be initiated pertains to misconduct under RRDA and no cogent reasons has been given for which compels the respondents to debar him so that no undue influence be exerted in the disciplinary proceeding. Therefore, in my considered view the impugned order of suspension is uncalled for and unwarranted in the context of initiation of departmental proceeding when the petitioner has already been suspended for more than 2 years for the self same cause of action.

7. In view of the reasons and submissions stated in the foregoing paragraphs, the impugned order of suspension dated 05.01.2016 passed under Rule-49A of the Civil Services (Classification, Control and Appeal) Rules vide Annexnure-7 being not legally sustainable is, hereby, quashed and set aside.

8. With the aforesaid observations and directions, the writ petition stands allowed. (Pramath Patnaik, J.) RKM/- N.A.F.R.