Aditya Narayan v. State of Bihar — 1998 DIGILAW 484 (PAT)

ORDER B.M. Lal, C.J. - According to the Rules of the High Court of Judicature at Patna the roster for the hearing of cases relating to service matter is assigned to the Single Bench. Consequently this petition was listed before Hon'ble Mr. Justice B.N. Agrawal. The petitioner, who is Marketing Officer-cum-Block Supply Officer posted at Mahua in the district of Vaishali, while challenging the order of his suspension dated 20-11-97 contained in Annexure-1 to the writ application under Article 226 of the Constitution of India, submitted that the suspension order has been passed in contravention of the provision of Rule 49-A of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred to as the Rules) inasmuch as neither respondent no.2, who has passed the order of suspension nor the respondent no.3, who has communicated the order is the appointing authority of the petitioner and, therefore, the order of suspension In non-est. It is also submitted that there is conflict of opinions in two Division Bench decisions. One Division Bench in Kamta Prasad Singh Vs. State of Bihar and others: 1987 PLJR, 1042 held that it is the appointing authority who can pass the order of suspension and not the authority subordinate to it. Even the immediate superior authority of the incumbent officer also cannot pass the order of suspension. However, recently in the case of Satyendra Kumar Singh vs. State of Bihar: 1998 (1) All P.L.A., 707 a Division Bench of this Court held that the immediate superior authority can pass the suspension order. Therefore, this petition is required to be placed before the Division Bench or before a Full bench. The learned Single Judge by order dated 17-4-98 directed its placing before the division Bench and that is how this petition is placed before us for hearing. 2. Dr. S.N. Jha, learned senior counsel appearing for the petitioner submitted that the petitioner's appointing authority, who can pass the order of suspension is the Minister Incharge of the Department, who has admittedly not issued the order of suspension. 2. Dr. S.N. Jha, learned senior counsel appearing for the petitioner submitted that the petitioner's appointing authority, who can pass the order of suspension is the Minister Incharge of the Department, who has admittedly not issued the order of suspension. It is also submitted that in the absence of any specific rule framed under Article 309 of the Constitution, if any circular is issued empowering the subordinate authority to the appointing authority or to the immediate superior authority of the incumbent officer, the same cannot prevail over the statuary rule, inasmuch as the executive instructions may supplement but not supplant the rule. Hence by virtue of any circular if the impugned order as contained in Annexure-1 is passed, the said circular is ultra vires to the rule 49A of the Rules and, therefore, it is submitted that since a conflict of opinion between two Division Bench decision has occurred, as referred to above, therefore this matter requires its placing before a Full Bench. 3. This Court requested Sri Ram Balak Mahto, learned Sr. Advocate, Ex-Advocate General of the State of Bihar to appear and assist the Court as Amicus Curiae to which he agreed and assisted the Court to a great extent. Shri A.N. Singh appeared for the State. 4. Thus the controversy which centres round is that whether the immediate superior authority of the incumbent can pass the suspension order or only the appointing authority can pass the order of suspension. 5. On the basis of the materials placed before this court if the court reaches the conclusion that superior authority of the incumbent can pass the order of suspension on the basis of rule 49A of the statutory rule i.e., Civil Services (Classification, Control and Appeal), Rules, 1930 upholding the view taken in the case of Satyendra Kumar Singh (supra) the subsequent question for referring the case to larger Bench automatically becomes redundant. 6. Before adverting to the point in issue, we would like to discuss the decison/ratio laid down in Kamta Prasad Singh case (supra) which is the trump-card for the petitioner and on which basis the petitioner has built up his case/argument. 6. Before adverting to the point in issue, we would like to discuss the decison/ratio laid down in Kamta Prasad Singh case (supra) which is the trump-card for the petitioner and on which basis the petitioner has built up his case/argument. No doubt it lays down the law that only the appointing authority can pass the order of suspension and not the immediate superior authority of the incumbent, but in para 10 of the judgment which is being reproduced here, it has been observed that: "If the State Government at all intends to empower other officer to pass an order of interim suspension, Rule 49A of the Rules has to be suitably amended in the light of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Court can not read the words in the Rule nor can amend the rule when the rule is free from any ambiguity." 7. This controversy is not res integra, the same having been resolved in a number of cases, besides amending the provisions of rule 49A of the Rules under Article 309 of the Constitution of India specifically by the State Government through the notification dated 6-6-91. For the brevity sake the same is being reproduced herein below: "In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Bihar is pleased to make the following amendment in the Bihar Civil Service (Classification, Control and Appeal) Rules:-In rule 49A for the words "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." The following words shall be substituted, namely, "The appointing authority or any authority to which it is subordinate of the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order may place a Government servant under suspension. Provided that where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances under which the order was made." By order of the Governor (A.K. Chaudhry) Secretary to Government. Patna the 6th June, 1991. 8. Provided that where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances under which the order was made." By order of the Governor (A.K. Chaudhry) Secretary to Government. Patna the 6th June, 1991. 8. It appears that the direction issued by the Division Bench in para 10 of the decision in Kamta Prasad Singh's case (supra) has persuaded and appealed to the State Government to amend the relevant rule i.e. rule 49A of the Rules, which has ultimately culminated in the aforesaid amendment, as quoted above; 9. A bare perusal of the amended rule shows that it specifically empowers the immediate superior authority of the incumbent to pass the order of suspension with rider that where the suspension is made by the authority lower than the appointing authority, that authority shall forthwith report to the appointing authority about the circumstances under which the order of suspension was made. We had asked the learned Government counsel Shri Amar Nath Singh to produce the entire record relating to the petitioner so as to ascertain as to whether the disciplinary proceeding initiated against the petitioner is in consonance with the provision of rule 49A of the Rules. The file was placed before us and we had seen that the Deputy Secretary of the Department concerned had accorded permission for suspension having applied his mind to the circumstances leading to the suspension of the incumbent. 10. Thus only after satisfying the provisions of the amended rules as referred to above, the interim suspension order as contained in Annexure-1 has been passed by the immediate superior authority of the incumbent- petitioner. 11. To us it appears that the whole purpose of delegating this right to the immediate superior authority/officer of the delinquent is that to have an effective control over the subordinate staff so as to run the administration effectively, efficiently, honestly and sincerely. 12. The immediate superior authority is competent to pass the suspension order, has been elaborately discussed in the case of Director General, E.S.I. and another Vs. T. Abdul Razak: (1996) 4 S.C.C. 708 , during departmental enquiry. 12. The immediate superior authority is competent to pass the suspension order, has been elaborately discussed in the case of Director General, E.S.I. and another Vs. T. Abdul Razak: (1996) 4 S.C.C. 708 , during departmental enquiry. In this case the Regional Director being the Officer Incharge of the region was the controlling authority in respect of the delinquent, who had passed the order of suspension of respondent, T. Abdul Razak, though Director General E.S.I. was not the appointing authority. The Apex Court ruled that while initiating the disciplinary proceeding against the delinquent officer T. Abdul Razak even in the absence of conferment of powers in that regard the Regional Director, while conducting the disciplinary proceeding, can pass order of suspension. 13. Thus, in view of Article 141 of the Constitution judicial discipline required to make an endeavour to follow the decision of the Apex Court so as to retain an element of certainty and continuity, which is the safety of the citizen, in respect of interpretation of law in the country. Therefore, in view of this settled legal position any order or direction made by the Apex Court has got binding effect on all the Courts with in the territory of India (See M/s Bayer India Ltd. and others Vs. State of Maharashtra : (1993) 3 S.C.C. 29 ). Hence, it is not open to the subordinate Courts to question any principle on which stress is laid applies to the facts of the particular case, nor is it open to them weather on account of judicial dignity or otherwise to question its decision on any particular issue of facts. This is not a new proposition but it also lends support from the decision rendered long back in Mata Prasad and others vs. Nageshar Sahai: AIR 1925 Privy Council, 272. 14. Further in view of Article 141 of the Constitution of India since the law laid down by the Supreme Court is the law of the land, therefore, on any point/issue the Supreme Court gives its decision meeting that point/issue, the same cannot be re-investigated, re-examined, or scrutinised by the High Court. The propriety does not demand of enquiry into the ratio laid down by the Supreme Court, by the High Court being subordinate Courts of the Supreme Court. The propriety does not demand of enquiry into the ratio laid down by the Supreme Court, by the High Court being subordinate Courts of the Supreme Court. If any judgment of the Apex Court becomes a subject matter of scrutiny by a Division Bench or Full bench of the High Court, the provisions of Article 141 of the Constitution would become not only illusory but redundant, which indeed cannot be. 15. It is also submitted by the learned counsel Dr. S.N. Jha, appearing on behalf of the petitioner, that if the appointing authority is the Government, all functions are governed by the Governor and the order is to be passed by the Governor or the Minister concerned. If the other authority has passed the order, the order will be without jurisdiction. So in the instant case even if the Secretary or the Deputy Secretary has passed the order giving consent for the suspension or departmental enquiry that order is of no avail. 16. This argument also has no force inasmuch as it is the President's/ Governor's pleasure to punish civil Servants under Article 310(1) subject to the safeguard provided under Article 311 of the Constitution, who exercise the executive powers of the Central Government under Article 53(1) and by the Governor in respect of the State under Article 154(1) of the Constitution. This power is to be exercised not by the President or the Governor themselves personally but on the advice of the Council of Ministers as contemplated under Article 74 for the Central Government and under Article 163 for the State Government, through the subordinate officers according to the business rules framed under Article 77 for the Central Government and under Article 166 for the State Government and further rules made under Article 309 of the Constitution. The decision rendered in Union of India vs. Tulsi Ram: AIR 1985 S.C. 1416 is relevant in this regard. Therefore, not only the power to make enquiry but also the power to dismiss may be delegated by the appointing authority, of course subject to the only condition that the person to whom power to dismiss the delinquent is delegated must not be subordinate to the appointing authority. This rider is only in respect of dismissal and not for conducting enquiry and departmental proceeding which includes suspension. This rider is only in respect of dismissal and not for conducting enquiry and departmental proceeding which includes suspension. Thus, it is clear that all actions done or taken either by the Central Government or by the State Government shall be deemed to have been taken by the President of India in respect of the Central Government and by the Governor in respect of the State Government. 17. In Bachhitar Singh VS. State of Punjab and another: AIR 1963 S.C. 395 and recently in the case of Madhya Pradesh vs. Dr. Yashwant Trimbak : AIR 1996 S.C. 765 , it is held that the order which is expressed in the name of the Governor and issued by the subordinate officer of the Governor Le. Secretary, Deputy Secretary or Under Secretary is valid order and deemed to have been passed by the Governor/Government. In the case of Yashwant Trimbak the order was passed in the name of the Governor and signed by the Under Secretary. It was held not only valid but their Lordships have further expressed their opinion that the order, which is expressed in the name of the Governor and is duly authenticated cannot be questioned in any Court on the ground that it is not made or signed by the Governor. The signature of the concerned Secretary or Under Secretary, who is authorised under the authentication rule to sign the document signify the consent of the Governor as well as acceptance of the advice rendered by the concerned Minister. We have already expressed in the foregoing paragraph that we have seen the original file where the Deputy Secretary has accorded permission. In this view of the matter, the argument advanced by Dr. S.N. Jha in this regard has no force. 18. Here it will not be out of place to mention that suspension is not a punishment and, therefore, the protection afforded under Article 311 of the Constitution to the Government servants is not attracted. (See. Md. Ghouse vs. State of Andhra Pradesh: AIR 1957 S.C., 246). The delinquent during the suspension remains a Government servant. It is a temporary deprivation of office till the enquiry is not completed and order of exoneration or punishment is not passed. 19. Learned counsel Dr. (See. Md. Ghouse vs. State of Andhra Pradesh: AIR 1957 S.C., 246). The delinquent during the suspension remains a Government servant. It is a temporary deprivation of office till the enquiry is not completed and order of exoneration or punishment is not passed. 19. Learned counsel Dr. Jha reiterating his submissions contended that in view of the earlier Division Bench decision in the case of Kamta Prasad Singh (supra) and the subsequent Division Bench decision in the case of Satyendra Kumar Singh (supra) wherein there is conflicting views expressed on the same point, therefore, let this case be referred to the Full Bench. The submission has indeed no two opinion. If there is conflicting views by two Division Benches the matter requires to be referred to the large Bench i.e. Full Bench. This is what our Patna High Court Rules also says. But where the legislation is changed, or considering the Apex Court decision judgment is rendered, that judgment need not be required to be referred to the larger Bench as the preceent may be departed from if the basis of legislation changes. It is in realisation of the idea of living law. In Reg. vs. Home Secretary, Ex Khawaja: (1984) A.C. 74 (H.L.) at page 84 the House of Lords expressed their opinion in the following terms: "The House will depart from a previous decision where it is right to do so and where adherence to a previous decision may lead to injustice in a particular case. Constitutional and administrative law are not fields where it is of particular importance to adhere to precedent. A recent precedent may be more readily departed from than one which is of long standing. A precedent may be departed from where the issue is one of statutory construction." 20. Our Apex Court in the case of State of Haryana and another vs. Chanan Mal etc.: AIR 1976 S.C. 1654 (Pr. 32), has expressed their views in clear terms that, "After amendment the law which exists only that law can apply. Indeed the Courts are bound to take judicial notice of the law as it exists and not the law as it was." 21. 32), has expressed their views in clear terms that, "After amendment the law which exists only that law can apply. Indeed the Courts are bound to take judicial notice of the law as it exists and not the law as it was." 21. Significantly it is also necessary to quote what lord Halsbury in House of Lords has expressed his opinion in Quinn vs. Leathern: (1901) A.C. 495 at P. 506: "Every judgment must read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expression which may be found there are not intend to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides." 22. Thus Kamta Prasad Singh's case (supra) has been decided, on its own facts on the basis of the then existing law as it was under unamended rule 49A of the Rules. Under the unamended rule 49A of the Rules the appointing authority, who has initiated the departmental proceeding can only pass the order of suspension of the delinquent. 23. But now the legal position has been changed by virtue of the amendment in rule 49A of the Rules vide notification dated 6.6.91 as referred to in the preceding paragraphs whereby it has been specifically made clear that the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order may place a Government servant under suspension provided that where the order of suspension is made by an authority lower than the appointing authority such authority shall forthwith report to the appointing authority the circumstances under which the order was made. 24. We have already discussed that adhering to this amended provision the petitioner was put under suspension and the proviso referred to above has also been complied with which we have seen from the original file produced before us by the learned Government Advocate. 25. Thus, in view of the changed law, besides the decision of the Apex Court in Director General, E.S.I. case (supra) which has got binding force on all the courts in India, in our view, the submission of Dr. 25. Thus, in view of the changed law, besides the decision of the Apex Court in Director General, E.S.I. case (supra) which has got binding force on all the courts in India, in our view, the submission of Dr. Jha that the matter in issue be referred to a Full Bench has got no substance and to accede to the submission will be a futile exercise of judicial powers. 26. We have already expressed our opinion that suspension is not a punishment but only temporary deprivation of office where even Article 311 of the Constitution has no application. This being so a question arises as to whether normally the suspension order is amenable to writ jurisdiction under Article 226 of the Constitution, In State of Orissa vs. Bimal Kumar Mohanty: (1994) 4 S.C.C. 126 , our Apex Court ruled that normally when an appointing authority or disciplinary authority seeks to suspend, pending enquiry or contemplated enquiry or pending investigation of grave charges into misconduct, the order of suspension is passed after taking into consideration the gravity of misconduct which is to be enquired into and ordinarily such order of suspension in not subject to judicial review. In this case the Central Administrative Tribunal has stayed the suspension order against which the State of Orissa has gone in appeal before the Apex Court and in this context the Supreme Court expressed its opinion as referred to above. Therefore, how far the writ petition as framed and filed against the impugned suspension order is maintainable. 27. As a consequence of the aforesaid discussions, we hold that: (A) the ratio laid down in Kamta Prasad Singh's case (supra) is based on its own facts and then existing law of unamended rule 49A of the Rules whereas the decision in Satyendra Kumar Singh's case (supra) is based on the decision of the Apex Court in Director General, E.S.I. case (supra) which also lends support from the amended rule 49A of the Rules vide notification dated 6-6-91. Therefore, it cannot be said that there is conflict of opinion between two Division Bench decisions which requires to be resolved by a larger Bench: and (B) the immediate superior authority or the controlling authority of the delinquent officer may pass the order of suspension during enquiry. 28. Thus, the objection raised by Dr. Jha that in the instant case respondents no. 28. Thus, the objection raised by Dr. Jha that in the instant case respondents no. 2 and 3 being not the appointing authority of the petitioner, the suspension order dated 20-11-97 contained in Annexure-1 to the writ petition in non-est, has no force and is hereby repelled and accordingly it is disposed of. 29. Before parting with the case, we bring on record a few words of appreciation to Shri Ram Balak Mahto, Sr. Advocate and Ex Advocate General of the State of Bihar, who appeared as Amicus Curiae and helped the court and also to Sri (Dr.) Sada Nand Jha, Sr. Advocate and Sri Mihit Kumar Jha, and Shri A.N. Singh, learned Government advocate, as they all by their ingenuous argument extended very valuable assistance to this Court. I agree. Petition Dismissed.