I.A. Ansari, J.@mdashWhether an employee, who is governed by Bihar Government Servant (Classification, Control and Appeal) Rules 2005, can be placed and kept under suspension pending investigation of a case under Section 307 of the Indian Penal Code, particularly, if the employee has remained in custody for more than 48 (forty eight) hours? This is the primary question, which the present writ petition has raised. While serving as Senior Deputy Collector-cum-in-charge of Jail Superintendent, Araria, the appellant herein was sanctioned leave, on 19.05.2012, with effect from 20.05.2012 to 26.05.2012, 19.05.2012 being a Saturday. On the following day, i.e. on 20.05.2012, Nirmalli Police Station Case No. 32 of 2012, under Sections 427/504/506/307 of the Indian Penal Code and Sections 20/27/30 of the Arms Act, 1959, came to be registered on the basis of a First Information Report lodged, at the said Police Station, by one Kanupriya Singh, alleging, in brief, thus:
"(i) On 20.05.2012 (Sunday), at about 12:30 p.m., the appellant, Ranjan Kumar Chauhan, was cutting the branches of a mango tree from his roof. The informant, Kanupriya Singh, whose house was adjacent to the house of the appellant, forbade him (i.e. the appellant) by asking him not to cut the branches of the mango tree. The appellant began to abuse her. When the widowed mother-in-law, Subhadra Devi, forbade the appellant from abusing the informant, he (appellant) abused Subhadra Devi too. On hearing the noise of hurling abuses, many persons of the locality gathered there. On seeing them, appellant stopped abusing the informant and her mother-in-law.
(ii) On the same day, at about 01:30 p.m., the appellant, Ranjan Kumar Chauhan, climbed on the roof of his house with a gun in his hand and fired on the informant, who was washing clothes at the hand-pump of her house, but the bullet hit the canopy. Thereafter, the appellant fired four more shots from his gun, but the informant, luckily, escaped. The informant rushed inside the house and informed the Police Station concerned. Upon receiving the information from the informant, the police arrived at the place of occurrence and arrested the appellant, Ranjan Kumar Chauhan, with gun and cartridges in his possession, whereafter the police seized the said gun and cartridges and prepared, in this regard, a seizure list. The appellant, Ranjan Kumar Chauhan, was in drunken condition at that time and had been threatening the informant and her family that he (appellant) would kill them."
2. During the course of investigation of the case aforementioned, the appellant was arrested on 21.05.2012 and remained in custody, thereafter, until he was ordered to be released on bail on 13.06.2012. Upon his release on bail, the appellant joined his previous place of posting and informed the District Magistrate, Araria, about his jail custody.
3. All of a sudden, the appellant was served with a letter, dated 25.08.2012, informing the appellant that the appellant had been placed under suspension, vide order, dated 06.08.2012, with effect from 20.05.2012, because of his arrest in connection with Nirmalli Police Station Case No. 32 of 2012. By the letter, dated 25.08.2012, aforementioned, the appellant herein was also directed to hand over the charge and report to the office of the Divisional Commissioner, Purnea.
4. Having obtained a copy of the order, dated 06.08.2012, whereby the appellant had been placed under suspension, the appellant put to challenge the said order by filing a writ petition, under Article 226 of the Constitution of India, which gave rise to CWJC No. 16504 of 2012.
5. By order, dated 02.11.2012, the writ petition was partly allowed by setting aside the order, dated 06.08.2012, aforementioned, by taking the view that Rule 9(3)(i) of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, envisages that once a Government servant comes out from custody and gives his joining report, his deemed suspension, on account of his custody, shall be deemed to end; and if the authority concerned intends to suspend the Government servant again, action can be taken only after acceptance of joining report and by issuing a separate order under Sub-rule (1)(a) or (1)(b) or (1)(c) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005. The impugned order, dated 06.08.2012, whereby the appellant had been placed under suspension, with effect from 20.05.2012, was, therefore, quashed with liberty granted to the respondents to pass order afresh in the matter.
6. After the order, dated 02.11.2012, aforementioned was passed in CWJC No. 16504 of 2012, the State Government, vide memo No. 4904, dated 21.03.2013, set aside the order of suspension, dated 06.08.2012, and, on the same date, the State Government issued memo No. 4945, which read as follows:
"1. Shri Ranjan Kumar Chauhan (B.A.S.) category, Sl. No. 542/11, the then Senior Deputy Collector, Araria was placed under suspension under Rule 9(1)(c) of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, with effect from 20.05.2012 until further order through Departmental Resolution No. 10959, dated 06.08.2012 consequent upon his sending to judicial custody in Nirmali Rs. Case No. 32/2012.
2. Consequent upon cancellation of suspension order by the Hon''ble Court in C.W.J.C. No. 16504/2012 filed in the High Court, Patna by Shri Chauhan against his suspension order, the Resolution No. 10959, dated 06.08.2012 related to the suspension of Shri Chauhan had been set aside.
3. In the report received by the District Officer, Supaul, it had been mentioned that Shri Chauhan fired two shots at Smt. Kanupriya Singh from his licenced double baralled gun. Owning to this act by him, Nirmali Rs. Case No. 32/12 was registered and he was arrested. It was also reported by him that in course of investigating, accused was medically examined. The medical examination confirmed taking of alcohol by Shri Chauhan which is a gross violation of the Bihar Government Servant Conduct Rules, 1976.
4. Since Rs. Case No. 32/12 against Shri Chauhan is under investigation and the matter for taking alcohol and firing in domestic dispute by Shri Chauhan is registered, hence, he is placed under suspension from the date of issuance of the order, under Rule 9(1)(c) of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005.
5. During the period of suspension, the Commissioner Officer, Purnea Division, Purnea is determined as the headquarter of Shri Chauhan.
6. During the period of suspension, he would be admissible subsistence allowance under the provisions of Rule 10 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005."
7. The order of suspension, dated 21.03.2013, passed by the State Government, placing the appellant herein under suspension, was put to challenge by the appellant by filing yet another writ petition under Article 226 of the Constitution of India. The latter writ petition gave rise to CWJC No. 9615 of 2013.
8. By order, dated 13.01.2014, passed in CWJC No. 9615 of 2013, a learned single Judge of this Court has, while declining to interfere with the impugned order of suspension, dated 21.03.2013, directed the respondents to expedite the departmental proceeding and complete the same within a period of nine months with further direction to the appellant to co-operate with the departmental proceeding making it clear that the outcome of the enquiry will govern the fate of the appellant.
9. Aggrieved by the dismissal of his writ petition and the fact that the order, dated 21.03.2013, placing the appellant, once again, under suspension, has not been interfered with by invoking the jurisdiction under Article 226 of the Constitution of India, the appellant is before us in this appeal.
10. We have heard Mr. N.K. Agrawal, learned Senior Counsel appearing on behalf of the appellant, and Mr. Sanjay Pandey, learned Government Pleader No. 21, for the State.
11. While dealing with the present appeal, one has to bear in mind that a writ appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. The appeal inter se in a High Court from one Court to another is really an appeal from one co-ordinate Bench to another co-ordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, a writ appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined anew by the appellate Court, what is really examined, in a writ appeal, is the legality and validity of the judgment and/or order of the single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the single Judge, which should, normally, be allowed to prevail. Hence, the impugned judgment of the learned single Judge cannot be completely ignored and this Court has to consider the judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail.
12. In order to correctly appreciate the scheme of suspension, as contained in Part-IV of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, we reproduce hereinbelow the relevant part of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005.
"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".
13. From a close reading of the relevant provisions, contained in sub-rule (1), sub-rule (2) and sub-rule (3) of Rule 9 of CCA Rules, as a whole, what becomes transparent is that sub-rule (2) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, creates a legal fiction by deeming a Government servant to have been placed under suspension if he or she is detained in custody, on a criminal charge or otherwise, for a period exceeding forty-eight hours. The suspension, so envisaged, is deemed to have taken effect from the date of detention meaning thereby that even without passing of a formal order of suspension placing a Government servant under suspension, if a Government servant shall be treated to have been placed under suspension, if he remains in custody, on a criminal charge or otherwise, for a period of forty-eight hours.
14. In other words, no sooner, a Government servant completes forty-eight hours, in custody, on being detained in connection with a criminal charge or otherwise, he would be deemed to have been placed under suspension with effect from the date of his or her detention. The detention, as contemplated by Rule 9(2) of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, can be during investigation or on conviction.
15. However, in the light of Rule 9(3)(i) of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, the period of deemed suspension, as envisaged by sub-rule (2) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, shall be treated to have come to an end as soon as the Government servant re-joins his post or submits his joining report to the competent authority and it is the bounden duty of the authority concerned to accept the joining or the joining report of such a Government servant and it is, thereafter, that a decision has to be taken by the appropriate authority if the Government servant needs to be placed under suspension. This decision has to be taken by virtue of the powers given to the appropriate authority by clauses (a), (b) and (c) of sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005.
16. To put the scheme of suspension, as depicted above, a little differently, it needs to be point out and borne in mind that a formal order of suspension is not necessary to be passed by the appropriate authority placing a Government servant under suspension if the Government servant is detained in custody, on a criminal charge or otherwise, for a period exceeding forty-eight hours, inasmuch as even without a formal order of suspension, such a Government servant would, by a legal fiction, be deemed to have been placed under suspension, no sooner the period of forty-eight hours of his detention passes, subject to the condition that the Government servant, upon his release from custody, may re-join and/or submit his joining report. In such a case, though the authority concerned is bound to accept the joining of the Government servant concerned or the joining report submitted by him, the competent authority has the discretion to place the Government servant under suspension if the authority concerned is satisfied that it is expedient to suspend the Government servant in public interest.
17. In the case at hand, clause (c) of sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, is pertinent and is, therefore, of great relevance inasmuch as Clause (c) of Sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, empowers 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, to place a Government servant under suspension, when 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.
18. In short, when a Government servant is taken into custody on a criminal charge or otherwise, then, as soon as his detention exceeds the given period of forty-eight hours, he shall be deemed to have been placed under suspension and this deemed suspension shall come to an end, when the Government servant re-joins his post and/or gives his joining report, and it is after acceptance of the joining or the joining report, as the case may be, that the Government servant may be placed under suspension by competent authority by issuing separate order in terms of the provisions of clauses (a), (b) and/or (c) of Sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005.
19. In the present case, we are concerned, as already mentioned above, with Clause (c) of sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, which, as already discussed above, empowers the appropriate authority to place a Government servant under suspension during investigation of an offence alleged to have been committed by him or her if it is considered expedient to suspend the Government servant in public interest.
20. On being pointed out, at the time of admission of this appeal, to the learned Senior Counsel, appearing on behalf of the appellant, that the order, dated 21.03.2013, placing the appellant herein under suspension is, in law and in effect, an order of suspension made by virtue of the power vested in the authority concerned by Clause (c) of sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, it has been submitted, on behalf of the appellant, that in the case at hand, the dispute or quarrel, which led to the registration of a police case against the appellant, his arrest and detention in custody, is confined between the appellant and his neighbor and, therefore, no public interest can be said to have been involved.
21. The above submission, made on behalf of the appellant, impels us to take note of the First Information Report, which has been brought on record, on behalf of the appellant, by filing a supplementary affidavit. For the purpose of clarity, the First Information Report is reproduced below:--
"The appellant arrived at his residential village, Nirmalli, on 20.05.2012, which was Sunday. While the appellant was in his house, some anti-social elements and his neighbours started quarrelling with the appellant and the members of his family. When the appellant forbid them, the mob entered into his house and looted the household articles and brutally assaulted the appellant and wanted to kill him and the members of his family. Luckily, the appellant escaped from the clutches of his neighbours and the other anti-social elements and in order to disburse the mob, the appellant opened two fires from his licensed gun in the air from the roof of his building. On opening of the fire, the mob fled away, but soon thereafter, the neighbour and the mob came with police and the appellant was taken into custody, on the basis of the false case, registered against him, by way of Nirmalli Police Station Case No. 32 of 2012 aforesaid."
22. From a careful reading of the allegations made in the First Information Report, it becomes clear that the allegations against the appellant are that the appellant opened fire by a gun on the informant, but luckily, the informant escaped. The allegation, so made, may or may not be true. However, without investigation, such serious allegations cannot be brushed aside.
23. In the backdrop of the allegations made in the First Information Report against the appellant, let us, now, consider as to what an offence is. An offence is an act or omission, which is made punishable by the Indian Penal Code. What needs to be kept in mind is that an offence is not merely an offence against an individual; rather, an offence is an offence against the society, i.e. the State, as a whole. No wonder, therefore, that it is the State, which has the primary responsibility of prosecuting a person, who commits an offence by doing an act or omitting to do an act, which the State has made punishable.
24. In the case at hand, it is yet to be determined as to whether the allegations, in their entirety, made against the appellant, are true or not; but what can be certainly said, at this stage, is that if the allegations are true, men, the appellant was justifiably arrested and kept in custody for having committed an offence as serious as attempt to murder punishable under Section 307 of the Indian Penal Code. Moreover, the fact that the appellant resorted to firing from arms has not been disputed by the appellant inasmuch as the appellant admits, in his writ petition, that he had resorted to firing; but he claims that the firing was in his self-defence. Whether the allegation made against the appellant is true, or the counter allegation, made by the appellant, is true, has to be naturally investigated and it is yet to be determined as what is alleged against the appellant is true or not. At this stage, in the light of serious nature of allegations, which has been made against the appellant, it cannot be said that the decision of the respondents concerned to place the appellant under suspension by invoking the power vested in them by clause (c) of Sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, is bad in law inasmuch as Clause (c) of Sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, empowers, as already indicated above, the appropriate authority to suspend a Government servant in public interest if it is considered expedient. By no stretch of imagination, the case at hand be described as a case, wherein it would be imprudent and unwarranted to consider it expedient to suspend the appellant in public interest.
25. The learned single Judge appears to have misunderstood entirely the present case and has, therefore, directed the appellant to cooperate with the departmental proceedings and further directed that the proceedings to be completed within a period of nine months; whereas the reality is that the appellant has been placed under suspension by virtue of Clause (c) of Sub-rule (1) of Rule 9 of the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005,, and no departmental proceeding is presently pending against the appellant.
26. Whether the appellant has to be continued to be kept under suspension until the investigation is completed, or trial is concluded, is an aspect, which needs to be examined by the appropriate disciplinary authority.
27. Suffice it to point out, at this stage, that making of the order of suspension, dated 21.03.2013, is not inappropriate in facts or unjustifiable in law. Consequently, while maintaining the impugned order, learned single Judge could not have directed the completion of any disciplinary proceeding against the appellant when no such case has been made out.
28. In the result and for the foregoing reasons, the order, dated 13.01.2014, passed in CWJC No. 9615 of 2013, is hereby set aside. This appeal shall stand allowed in terms of the above observations and directions.
29. No order as to costs.
S.P. Singh, J.
I agree.
