Suspension of a police officer on the ground of contemplated disciplinary inquiry is not covered by the provisions of Para 496 of the Police Regulations.

1. Munna Lal Tewari (Petitioner in Writ petition no. 440 of 1985), who is sub-Inspector of Police has challenged the order dated 31st August, 1982 by which he has been placed under suspension. On flu same date Rakesh Rai (petitioner in Writ Petition No. 681 of 1985), who is a constable, was also placed under suspension by a separate order and he has also challenged that order.

2. It may be stated that Munna Lal Tewari as also Rakesh Rai along with one Kunwar Pal Singh, another constable, are named accused in Crime case No. 501 of 1982 under Section 342/302/330/161 of the Indian Penal Code, registered at P. S. Kotwali, Sitapur. The allegation against them is that they had committed the murder of one Gajendra Singh. The first information report in that regard is contained in Annexure-1 to Writ Petition No. 440 of 1985. This report is Annexure 2 in Writ Petition No. 681 of 1985.

Munna Lal Tewari had earlier filed Writ Petition No. 4468 in this court which was summarily dismissed on 9-11-1982 by the following order :

We have heard the learned counsel for the petitioner at some length. We do not find that it is a fit case for interference under Article 225 of the constitution. The petition fails and is dismissed. "

3. It would be noticed that Munna Lal Tewari was placed under suspension as disciplinary proceedings were contemplated against him on the ground that he was a named accused in Crime Case No. 501 of 1982.

4. Constable Kunwar Pal Singh, who was also a named accused in the aforesaid crime case, was placed under suspension by a separate order passed on 31st August, 1982 on the same ground that a disciplinary inquiry was contemplated against him. He had filed Writ Petition No. 5039 of 1984 which has since been allowed by us by our judgment and order dated 22nd February, 1985. We have already held in that Writ Petition that a case of suspension on the ground of contemplated disciplinary inquiry was not covered by the provisions of Para 496 of the Police Regulations. In this view of the matter, the Writ Petition filed by Rakesh Rai, i. e. Writ petition no. 681 of 1985 has to be allowed as he is a co-accused with Kr. Pal Singh in the above crime case and he has also been placed under suspension on identical ground that a disciplinary inquiry was contemplated against him.

So far as Munna Lal Tewari is concerned, ordinarily a second Writ petition under Article 226 of the Constitution cannot be entertained. The principles akin to res judicata and constructive res judicata are applicable to writ petition. If a writ petition is disposed of by a speaking order in which reasons are indicated why the writ petition has been dismissed, a second petition on the same facts and cause of action would not lie, not even on a new ground which could or ought to have been raised in the earlier writ petition See A. I. R. 1973 S. C. 974, A. I. R. 1965 S. C. 1150. Pearey and another v. Deputy Director of Consolidation and others, L. C. D. 376. decided by one of us (S. Saghir Ahmad, J..

5. But if the earlier writ petition was dismissed in limine by non-speaking order, the position would be different.

6. In the leading case of Daryao v. State of U. P., A. I. R. 1961 S. C. 1457. it was laid down that if a petition under Article 226 of the Constitution is dismissed by the High court in limine on the ground of laches in applying for the writ or on the ground of alternative remedy, then the dismissal would not constitute a bar to the subsequent petition under Article 32. This principal was re-affirmed in virudhunagar Steel Rolling Mills Ltd. v. The Government of Madras A. I. R. 1968 S. C. 1196. in which daryao's case (supra) was also considered and explained. It was held that the dismissal of a petition in limine by a non-speaking order does not create a bar of res judicata. In Trilok Chand Moti Chand v. H. B. Munshi, A. I. R. 1970 S. C. 898. the ratio in daryao's case was affirmed by the majority of Judges that the dismissal of a petition under Arti