RAM KUMAR SINGH Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) 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 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 After more than two years of suspension, the said order was revoked and the petitioner was posted in Minor Irrigation Quality Control Division Ranci vide notification dated 02.11.2013 and thereafter the services of the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. 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) PLJR 89 in 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 the decisions reported in 2013 (4) JCR 406 (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: -

(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.RC 03 (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 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.RC 03(A)/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 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.