Chandramauli Kumar Prasad, J.

1. This application has been filed for quashing the order as contained in Memo dated 7.10.2004 (Annexure 1) whereby, the petitioner has been put under suspension.

2. Short facts giving rise to the present application are that the petitioner is an accused in R.C. case No. 3 (A) of 1997 (D) popularly known as the Bitumen scam case. The said case was investigated by the Central Bureau of Investigation and ultimately petitioner was charge-sheeted. He was taken into custody in the said case on 6.1.2004 and order directing his release was passed on 9.3.2004. It is the stand of the petitioner that after he was released on bail, he submitted his joining and started discharging his duty but later on, by the impugned order dated 7.10.2004 he has been put under suspension with effect from 5.1.2004. It is the stand of the petitioner that the State Government does not possess power to pass order of suspension with retrospective effect and in any view of the matter after the release of the petitioner on bail, the petitioner can be put under suspension only by a fresh order.

3. Mr. Rupak Kumar appearing on behalf of the petitioner draws my attention to the order of suspension and submits that the said order was passed on 7.10.2004, whereas petitioner has been put under suspension with retrospective effect i.e. 5.1.2004, which is not permissible in law. In support of his submission he has placed reliance on a Division Bench judgment of this Court on the case of Bachcho Lal Das V/s. State of Bihar, 1983 PLJR 561, and my attention has been drawn to paragraph 9 of the judgment which reads as follows:

The learned Advocate General who appeared on behalf of the respondents also was not in a position to justify this order of suspension which was retrospective in effect. Therefore, there is no difficulty in holding that annexure 5, suspending the petitioner retrospectively from 1st January, 1981 to 17th August, 1982, has got to be quashed and set aside.

4. Government Pleader No. II however, submits that the petitioner has been put under suspension on the ground that he was taken into custody in a criminal case and in such a situation the petitioner shall be deemed to be under suspension and hence the order of suspension cannot be held to be illegal on the ground urged by the learned counsel for the petitioner.

5. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Kumar and the decision relied on is clearly distinguishable. Undisputedly petitioner was taken into judicial custody in a criminal case on 6.1.2004 and order directing for his release on bail was passed on 9.3.2004. When this fact came to the notice of the authority, in view of the provisions of the Rule 3-A (2) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules 1935, it was directed that the petitioner shall be under suspension from 5.1.2004. I am of the opinion that Rule 3-A (2) of the Rule confers such power on the authority to put a person under suspension from the date he is taken into custody.

6. Now referring to the decision of this Court in the case of Bachcho Lal Das (supra), the suspension was for holding a departmental enquiry and in that context it was held that the order of suspension cannot be with retrospective effect, which is not the situation here.

7. Mr. Kumar contends that in the order impugned it has not been stated as to which provisions the State Government had invoked to put the petitioner under suspension. He draws my attention to the impugned order and submits that only Rule 3-A of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, hereinafter referred to as the Rules, has been mentioned in the impugned order and from that it cannot be inferred as to whether the authority had exercised its power under Rule 3-A(1) or Rule 3-A(2) of the Rules.

8. I do not find any substance in this submission of Mr. Kumar. It is well settled that while testing