The power of suspension under Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, 1930 cannot be exercised in a routine manner and that the appointing authority must consider the gravity of the misconduct and the nature of the evidence before passing a suspension order.

R.M.Prasad, J.

1. Prayer in the writ petition is to quash the notification dated 4-8-1999 issued by the Commissioner and Secretary, Commercial Taxes, Bihar, Patna (Respondent No. 2), contained in Annexure-10, by which the petitioner has been placed under suspension on the ground of his not protecting three books of Form 28-B and the irresponsible conduct shown in discharge of his duty. The said order is purported to have been passed in exercise of the power under Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules.

2. In short, the relevant facts are that on 28-11-1990, an explanation was called for from the petitioner vide Annexure-1 with respect to shortage of three books of Form 28-B as found on physical verification. Petitioner submitted his explanation vide Annexure-2 denying the said charge and also seeking permission to lodge F.I.R with respect to it. Petitioner lodged Sanha on 30th November, 1990 with the Officer-in-Charge, Jharia Police Station, Jharia vide Annexure-3. Vide order dated 26-12-1990 (Annexure-4) petitioners services was attached to the Divisional Office and pursuant to the said order, he joined in the Divisional Office. Vide Gazette notification dated 7-1-1991, contained in Annexure-6 all the said missing books were declared as cancelled. In this regard, an inquiry was also conducted on the Sanha lodged by this petitioner by the Sub-Inspector S.N. Patel, who submitted report, copy of which was forwarded to Respondent No. 2 by Inspector of Police, Jharia on 21st April, 1991 vide Annexure-7. In the said report, it was found that there was shortage in supply of three books from Gaya Government Press as three books were missing from the middle of the bundle itself. However, on 11-11-1991, the petitioner was again called upon to submit his explanation with reference to letter No. 721/C dated 19-7-1991, a copy whereof was also sent to the petitioner vide Annexure-B, alleging therein that he did not discharge the required carefulness in receiving the forms from Gaya Press, which resulted in missing of three books. He was required to submit show cause as to why a disciplinary proceeding should not be started against him. It appears that thereafter the petitioner submitted his detailed reply on 18-2-1993 vide Annexure-9 and requested to exonerate him from the charge of dereliction of duty. It is stated that after filing of the said show cause neither the charge was framed nor any inquiry was conducted, rather the petitioner learnt that he was only warned and the said order was passed in the relevant file of the Respondent, yet the impugned order or suspension was issued after almost nine years of the alleged charge.

3. Learned Counsel for the petitioner assailed the validity of the order of suspension on the grounds that the same has been mechanically passed mala fide to deprive him of the due promotion without taking into consideration the police report. It was submitted that exercise of the power under Rule 49-A cannot be invoked in a routine manner, as has been adopted in the present ease, where the said power has been exercised after almost nine years of the charge without any explanation for the same.

4. In this regard, he referred to the decision of the Supreme Court in the case of State of Orissa V/s. Bimal Kumar Mohanty reported in -- and also to a decision of this Court in the case of Rajiv Dutta Verma V/s. State of Bihar and Ors. reported in 1998 (3) All PLR 393.

5. Despite service of notice long back on 23-8-1999 on the learned Advocate General for the Respondents, no counter-affidavit has been filed 011 their behalf. Learned Government Pleader No. II, however, submitted that Respondent No. 2 has acted quite within his jurisdiction to pass the order of suspension in exercise of the power under Rule 49-A on the charge of showing gross negligence and irresponsible conduct of the petitioner, which resulted in missing of three books of Form 28-B. However, in absence of counte