JUDGMENT
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 petitioner’s 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 petitioner’s 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 petitioner’s 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 General of Police, C.I.D,. Charges were framed, according to the petitioner, hurriedly after concoction and was communicated to the petitioner on 31st December, 1980, which, according to him, were unfounded, vague, indefinite and without statement of allegations in support thereof. According to the petitioner, before his suspension or initiation of departmental proceedings no preliminary enquiry was made nor was any explanation called for from the petitioner. The departmental proceedings, initiated against the petitioner, was entrusted to the Commissioner for Departmental Enquiry, to enquire into the alleged charges which, according to the petitioner, also were not in accordance with law. Thereafter the petitioner, on 17th January, 1981, asked for relevant documents relation to the charges which have not been furnished even up to date. The list of documents have been given.
6. On 8th April, 1982, the petitioner flied C.W.J.C. No. 1418 of 1982 in this Court challenging the validity of his suspension as also the departmental proceedings initiated against him. On the 17th of August, 1982, the aforesaid writ petition was finally heard by a Division Bench, presided over by Mr. Justice S. Ali Ahmad and Mr. Justice Yadunath Sharan Singh, who by an order of that date disposed of the aforesaid writ petition holding that the order of suspension passed against the petitioner had lost its force and the could not be deemed to be under suspension after 31st December, 1980 It was further directed in that case that the departmental proceeding could not be quashed but it should be concluded within six months from that date and that if the State Government so desired and if there are sufficient materials, it would be open to it to reconsider the matter and put the petitioner under suspension in accordance with law.
7. However, on 19th August, 1982, when the petitioner again went back to join as Superintendent of Central Jail, Bhagalpur, he was informed by the Superintendent incharge of Central Jail that charge could not be handed over and on the 24th of August, 1982, the petitioner was again illegally suspended by the two orders copies of which are annexures 5 and 6; annexure 5 suspending him retrospectively from 1st January 1981 to 17th August, 1982, and annexure 6 suspending him from I8th August, 1982 until the conclusion of the departmental enquiry. According to the petitioner, both annexures 5 and 6 are without jurisdiction as the matter was never referred to the council of Ministers which is the appointing authority of the petitioner nor were they circulated to the Ministers for opinion as required under the rules of the Executive Business. The orders, therefore, of suspension, were in violation of law. It has further been stated that in any view, the suspension cannot be retrospective and that both the orders of suspension are arbitrary and mala fide.
8. Cause has been shown by respondent No. 1, the State of Bihar through the Home Commissioner and counter affidavit has been filed, Thereafter a number of rejoinders and counter rejoinders have been filed relevant portions of which will be referred to in this judgment at appropriate stages. Substantially the case of the respondents is that the State Government was justified in suspending the petitioner and initiating a departmental proceeding and that the charges are definite inasmuch as relevant facts have been provided in the charges, Copies of the charges dated 31st December, 1980 and the supplementary charges framed against the petitioner on 13th August, 1981, are annexures C and D.
9. The first question that falls for consideration in this case is whether annexure 5, appended to the writ application, by which the petitioner has been suspended retrospectively can be sustained or not. It is a communication, as pointed out earlier, “dated 18th August, 1982, issued by the Government which states that the previous suspension order of the petitioner had lost its force on 31st December, 1980, and therefore because of the charges of misconduct, inefficiency, carelessness and irregularities which have been communicated to him on 31st December, 1980 and 13th August, 1981 and because departmental proceeding had been initiated against him and taking into account the seriousness of the charges, the Government considered it to be necessary to extend the period of suspension from 1st January, 1981 to 17th August, 1982 and he will, therefore, be considered to be under suspension for that period. In this context it would be relevant to bear in mind that on 17th August, 1982, while disposing of C.W.J.C. No. 1418 of 1982, this Court had held that the earlier suspension order of the petitioner had lost its force on 31st December, 1980, and the petitioner was no longer under suspension. Immediately thereafter, on the next date, this order was passed. In C.W.J.C. No. 1861 of 1980, disposed of on 18th April, 1981, a Bench of this Court held that an order of suspension with retrospective effect could not be passed and, therefore, in that case, a part of the order of suspension which was retrospective in effect was quashed. Sarwar Ali, J. (as he then was) observed as follow:
The next question is whether a fresh order of suspension could be passed with retrospective effect. That an order of suspension could be passed is not in dispute. What is seriously challenged is the passing of the order of suspension with retrospective effect. No specific rule has been brought to our notice which empowers to passing the order of suspension with retrospective effect. It is well settled that such a power must be derived through a statutory rule. In this situation, the learned Counsel is right in contending that the order of suspension, so far as it is directed to take effect from 14.12.1977 was not within the competence of the authorities passing the order of suspension. That part of the impugned annexure, which makes the order of suspension operative from a retrospective date has, therefore, to be quashed.
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.
10. Now it has to be considered whether annexure 6, the order by which the petitioner has been suspended from 18th August, 1982, till such period as the departmental proceedings are concluded and decision taken in accordance with law or not. This order which is undoubtedly prospective in effect has been assailed on the ground that it has been passed by an authority which was not competent to pass the order. The learned Advocate General, however, contended that as the order was passed by the Governor of Bihar it was final in terms of Article 166(2) of the Constitution and was covered by the third category as provided under Rule 49A of the Bihar Civil Services (Classification, Control and Appeal) Rules.
11. It would be convenient to extract Rule 49Aof the Bihar Civil Services (Classification, Control and Appeal) Rules:
49A (1).–The appointing authority or any authority to which it is subordinate or the Governor by general or special order, may place a Government servant under suspension.
(a) where a disciplinary proceeding against him is contemplated or is pending; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
In this case it is not disputed that the suspension is because of a disciplinary proceeding. Under the aforesaid rule it is obvious that the authority competent to suspend is either the appointing authority or any authority to which the appointing authority is subordinate or the Governor by general or special order. The submission of the learned Advocate General is that as the impugned order which is annexure ‘6’ shows that it has been passed by an Under Secretary to Government by the order of the Governor and as in the body of the order itself it is stated that the order is being passed under the direction of the Governor, it is a valid order within the third category of Rule 49-A and, in any view of the matter, it is not open to challenge in view of Article 166 of the Constitution since it is properly authenticated in the name of the Governor. Mr. Radha Mohan Prasad, appearing for the petitioner, submitted that while the authentication in the impugned order cannot be the subject of challenge, it was open to the petitioner to show that the order had not been passed by the competent authority. For this reliance was placed on the case of E.P. Royappa v. State of Tamil Nadu and Anr. . It was held in that case that when an order is authenticated the only challenge that is excluded by the authentication is that it is not an order made by the Governor. However, it was pointed out that the validity of such an order could be questioned on other grounds and, therefore, the authentication does not preclude the contention that the order, though made by the Governor, suffers from some other infirmity. In the case of State of Bihar v. Rari Sonabati Kumari . it was pointed out “the process of making an order precedes and is different from the expression of it.” In Royappa case, therefore, it was pointed out that ‘if the authenticated order does not correctly reflect the actual order made, or to put the same thing differently, the actual decision taken by the State Government, it must be open to correction. The formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made and override it.” Therefore, in the present case, it has to be seen whether the authenticated order does or does not correctly reproduce the actual order made by the State Government.
12. Under Rule 15 of the Rules of Executive Business made in exercise of the powers conferred under Clause (3) of Article 166 of the Constitution, all cases referred to in the third schedule have got to be referred to the Council of Ministers and in certain cases of extreme urgency, the Chief Minister is entitled to authorise action in anticipation of the approval of such Council. The Chief Minister, under Rule 16 is also authorised that with regard to such matters the approval may be obtained by circulation to the Ministers. Item 27 of the third schedule provides that proposals for appointment by direct recruitment or promotion to civil services for posts whose maximum pay exceeds Rs. 1325/-to be placed before the Council of Ministers. It has not been disputed before us that appointment to the post on which the petitioner was before suspension, is covered by item 27 of the third schedule. Therefore, the appointing authority of the petitioner being the Council of Ministers under Rule 49-A of the Bihar Civil Services (Classification, Control and Appeal) Rules, the authority competent to suspend the petitioner would be the Council of Ministers. It is also beyond controversy that the Chief Minister and the Council of Ministers are two distinct identities because under Article 163(1) of the Constitution, there has to be in every State a Council of Ministers with the Chief Minister at the head.
13. In the present case, in the counter affidavit filed on behalf of the State, in the last sub-paragraph of paragraph 16 which is at page 75 of the brief, it has been stated as follows:
It is again re-iterated that the Chief Minister was competent to order the petitioner’s suspension and that the approval of the Council of Ministers, is not required. The suspension of the petitioner is also not violative of Article 311 of the Constitution.
It is, therefore, obvious that the order of suspension, it is admitted, has been passed by the Chief Minister and not by the Council of Ministers although the authority competent to appoint the petitioner on the post that he was occupying was the Council of Ministers. It has not been shown to us as to how in the present case the Chief Minister was competent to order the petitioner’s suspension. In such circumstances, it has to be held that the order of suspension, copy of which is annexure ‘6’ is not in accordance with law and has got to be quashed.
14. The next question that falls for consideration is whether the initiation and the continuance of the departmental proceedings against the petitioner are in accordance with law. It has been submitted at great length before us that the initiation and the continuance of the departmental proceedings cannot be sustained. Before considering the submissions made with regard to the initiation of the departmental proceedings against the petitioner it would be relevant to consider an objection taken with regard to this argument by the learned Advocate General. He has contended that in this writ application the initiation of the proceedings cannot be permitted to be questioned on the principles of res judicata. The submission is that this aspect of the matter was raised and decided in C.W.J.C. No. 1418 of 1982, disposed of on 17th August, 1982, between the parties, and now the petitioner cannot be permitted to reagitate the matter. On the other hand, Mr. Radha Mohan Prasad submitted that the principle of res judicata was not applicable in the present case particularly in absence of a speaking order on the merits of the previous writ application. In the case of Daryao and Ors. v. State of Uttar Pradesh and Ors. . Gajendragadkar, J., speaking for the Court observed as follows:
Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Article 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a Court of competent jurisdiction, there has been a contest between the parties before the Court, a fair opportunity has been given to both of them to prove their case, and at the end the Court has pronounced its judgment or decision. Such a decision pronounced by a Court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution.
In the case of Devilal Modi v. Sales Tax Officer . it was further held by Gajendragadkar, C.J. (as he then was) that the second writ petition filed by the appellant in that case was barred by constructive res judicata.
15. The at ove two decisions, therefore, clearly lay down that rules of res judicata and constructive res judicata being based on high public policy, apply even to applications under Article 226 of the Constitution Mr. Radha Mohan Prasad appearing for the petitioner, also conceded that if there had been a proper consideration of the matter in the earlier writ petition and in the end the Court had pronounced its judgment and decision in that case (C.W.J.C. No. 1418 of 1982) then the matter would be barred by the principles of res judicata. However, learned Counsel submitted that in that case whether the departmental proceeding was in accordance with law had not been gone into and, in any case, the subject was not a matter of a speaking order in that decision, it has, therefore, to be been, as admittedly in the present and the earlier cases the parties were the same, whether the question of the legality of the departmental proceedings had been gone into by the decision given on 17th August, 1982, in C.W.J.C. 1418 of 1982. The judgment has been quoted in extenso in paragraph 30 of the writ petition itself. The judgment shows that the petitioner had challenged the charges which had been framed against him with regard to the departmental proceedings, copy of which was annexure ’15’ to that application. In the counter affidavit filed by the State in that case supplementary charges which had also been framed against the petitioner, had been marked as annexure ‘B’ In the judgment it has been observed as follows:
Having heard learned Counsel for the parties, we do not find it possible to quash the departmental proceeding initiated against the petitioner under annexure ’15’ and annexure ‘B’.
The Court, however, directed that the departmental proceedings be concluded within six months from the date of judgment. Thereafter the order of suspension passed earlier against the petitioner was quashed. The judgment concluded as follows:
‘With the observations made above, this application is dismissed.
16. From what I have stated, it seems clear that on a consideration of the merits of the case in the earlier petition, it was held that the initiation of the departmental proceedings could not be quashed and, therefore, it must be presumed that the matter had been considered in all its aspects by the Court and thereafter that order passed,
17. It may further be stated that dissatisfied with the order of this Court the petitioner went up to the Supreme Court and the matter was considered there in Civil Appeal No. 4011 of 1982. A copy of the order of the Supreme Court dated 6th December, 1982, in annexure’10’which shows that special leave was granted and an order was passed in terms of which the appeal was disposed of. In that order it was only provided that the petitioner would be paid his salary for a certain period and subsistence allowance for another period that the petitioner would report to the Inspector General of Prisons, Bihar, I have stated this to show that against the decision of this Court rejecting the petitioner’s prayer for quashing the initiation of the departmental proceedings, he went up to the Supreme Court and even there he did not get any relief in the matter. The matter, therefore was considered and after giving the parties a fair opportunity, decided against the petitioner in C.W.J.C. No. 1418 of 1982 and C.A. No. 4011 of 1982. I am, therefore, of the view that on the principles of res judicata the petitioner cannot now be permitted again to reagitate that the initiation of the departmental proceedings is not in accordance with law.
18. That question that still needs to be considered is as to what is the effect of the judgment dated 17th August, 1982, passed in C.W.J.C. No. 1418 of 1982 with regard to the continuance of the departmental proceedings. I have already pointed out that it was directed by that Judgment that the departmental proceedings should be concluded within six months from the date of the order. Admittedly, the departmental proceedings have not been concluded within that period. Therefore, during the pendency of this application, the petitioner, on 17th February, 1983, filed an application in this case to quash the proceedings as six months had already expired and the departmental proceedings had not been concluded. Normally we would have gone into the question as to what was the effect of the order dated 17th August, 1982, in C.W.J.C. No. 1418 of 1982, in view of the fact that the proceedings had not been concluded within the period of six months. However, we find that on 23rd February, 1982, an application was filed on behalf of the State for extension of the period as due to certain unavoidable circumstances, the proceedings could not be concluded within the stipulated period. Under the normal procedure followed by this Court, the application filed on behalf of the State for extension of time, which is at flag ‘Y’ would be a matter would have to be considered by the Bench which passed the judgment dated 17th August, 1982 in C.WJ.C. No. 1418 of 1982, particularly when that Bench can be available even to-day. Therefore, I am inclined to take the view that this bench would be reluctant to consider the effect of the judgment dated 17th August, 1982, in C.W.J.C. No. 1418 of 1982, in view of the fact that an application for extension of time has been filed in this case itself on behalf of the State. I would, therefore, express no opinion on these two petitions and leave the matter open for the parties to agitate before the appropriate Bench.
19. In the result this application partly succeeds and is allowed to the extent that annexures ‘5’ and ‘6’ the two orders of suspension, passed against the petitioner, are quashed and set aside. In the circumstances of the case, however, I would make no order as to cost.
Ram Naresh Thakur, J.
20. I agree.