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PATNA HIGH COURT
Brishketu Saran Sinha and Ram Naresh Thakur JJ.
Bachcho Lal Das
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 3485 of 1982 ;
Decided On : MAY 18, 1983
SUSPENSION - RETROSPECTIVE - INCOMPETENT AUTHORITY - DEPARTMENTAL PROCEEDINGS - INITIATION - RES JUDICATA - CONTINUANCE - EXTENSION OF TIME - JURISDICTION - ARTICLE 166(2) OF THE CONSTITUTION - ARTICLE 311 OF THE CONSTITUTION - RULE 49A OF THE BIHAR CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES - RULES OF EXECUTIVE BUSINESS.
Fact of the Case:
The petitioner, a Superintendent of Jail, challenged the retrospective suspension order and departmental proceedings initiated against him. He alleged mala fide on the part of the Chief Minister and contended that the suspension orders were illegal and the departmental proceedings were not in accordance with law.
Finding of the Court:
1. The retrospective suspension order (Annexure 5) was quashed as it was not within the competence of the authorities and was in violation of law. 2. The prospective suspension order (Annexure 6) was also quashed as it was passed by an incompetent authority, i.e., the Chief Minister, instead of the Council of Ministers, which was the appointing authority of the petitioner. 3. The initiation of the departmental proceedings against the petitioner was held to be barred by the principles of res judicata as the same issue had been considered and decided against the petitioner in an earlier writ petition (C.W.J.C. No. 1418 of 1982). 4. The Court declined to consider the effect of the earlier judgment (C.W.J.C. No. 1418 of 1982) on the continuance of the departmental proceedings as an application for extension of time had been filed by the State.
Issues: 1. Whether the retrospective suspension order (Annexure 5) was valid. 2. Whether the prospective suspension order (Annexure 6) was valid. 3. Whether the initiation of the departmental proceedings against the petitioner was in accordance with law. 4. Whether the continuance of the departmental proceedings was affected by the earlier judgment (C.W.J.C. No. 1418 of 1982).
Ratio Decidendi: 1. An order of suspension with retrospective effect cannot be passed unless specifically empowered by a statutory rule. 2. The authority competent to suspend a government servant is either the appointing authority, any authority subordinate to the appointing authority, or the Governor by general or special order. 3. The Governor's order is final under Article 166(2) of the Constitution, but it must correctly reflect the actual order made by the State Government. 4. The Council of Ministers is the appointing authority for certain posts, and in such cases, the Chief Minister alone cannot order the suspension of a government servant. 5. The initiation of departmental proceedings against a government servant cannot be quashed unless it is shown that the proceedings are mala fide or in violation of any statutory rule. 6. The principles of res judicata apply to writ petitions under Article 226 of the Constitution, and a matter that has been considered and decided in a previous writ petition cannot be reagitated in a subsequent petition.
Final Decision: The retrospective suspension order (Annexure 5) and the prospective suspension order (Annexure 6) were quashed. The initiation of the departmental proceedings against the petitioner was held to be barred by res judicata. The Court declined to consider the effect of the earlier judgment (C.W.J.C. No. 1418 of 1982) on the continuance of the departmental proceedings as an application for extension of time had been filed by the State.
Brishketu Saran Sinha, J.
1. The petitioner is a Superintendent of Jail. His prayer in this application is to quash annexures 5 and 6 appended to it. Annexure 5 is an order of the Government by which the petitioner has been retrospectively suspended from service from 1st January, 1981 to 17th August, 1982, and annexure 6 is another communication of the same date by which the petitioner has been suspended from the date of the issue of the order until a final decision is taken on a departmental proceeding going on against the petitioner. The further prayer is to quash the departmental proceedings initiated against the petitioner as well and to direct the Government to allow the petitioner to continue as Superintendent. Central Jail, Bhagalpur. Subsequently, a employer has also been made by an application filed in this case to reconsider the petitioners case for regular promotion in accordance with the direction given by this Court in the judgment dated 30th October, 1975, passed in C.W.J.C. No. 1138 of 1973. It may be noted here that this prayer has not been pressed during the hearing of this case.
2. The relevant tacts, according to the petitioner, are that on the result of the thirteenth combined competitive examination held by the Bihar Public Service Commission, the petitioner was appointed as a Superintendent of Jail on 5th March, 1966 and after passing the departmental examination was confirmed in the junior branch of the Bihar Jail Service from 1st March, 1970. On 29th November, 1977, the petitioner was allowed to cross the efficiency bar with effect from 5th March, 1971. However, on 24th February, 1972. the petitioner was promoted to the senior branch of the Bihar Jail Service and was posted as Superintendent of the Special Central Jail, Bhagalpur. The petitioner was then reverted and posted as Superintendent of district Jail Daltonganj where he took over charge on 19th May, 1973. The petitioner had challenged his aforesaid reversion order in this Court and it was numbered as C.W.J.C. No. 1138 of 1973 in which, by judgment dated 30th October, 1975, the Court directed the State Government to reconsider the petitioners case for promotion after excluding the uncommunicated adverse remarks against the petitioner for the years 1967-68 and 1968-69.
3. The petitioner on 29th September, 1976, was placed under suspension but when in 1977 the Janta Party came into power, the petitioner was reinstated and posted as Superintendent District Jail, Dhanbad. On 16th April, 1979, the petitioner, on an ad hoc basis for six months, was promoted and posted as Superintendent, Central Jail, Bhagalpur, and he was placed in duel charge of the office of the Superintendent Special Central Jail, Bhagalpur as well.
4. According to the petitioner when he took over charge of these two jails they were in disarray which he improved. According to the petitioner, in 1979 and 1980 he exposed the blinding of criminals in police custody in Bhagalpur district. The petitioner has also made some allegations in his application that such blindness had "the blessings of the Chief Minister". The petitioner has given in details, some circumstances to show that the petitioner exposed those blindings.
5. On 1st December, 1980, according to the petitioner, the Chief Minister wrecked vengeance against the petitioner by placing him under suspension without any rhyme and reason although he was not his appointing authority under Rule 49A of the Bihar Civil Services (Classification, Control and Appeal) Rules. A copy of this order is annexure 2. I may state here that I have not stated in detail the petitioners allegation of mala fide against the Chief Minister for reasons which I shall subsequently give, Thereafter the Home Commissioner took steps to initiate departmental proceedings against the petitioner by asking the Inspector General of Prisons, Bihar, on 15th December, 1980, to frame charges against the petitioner in consultation with the Deputy Inspector Gener
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