JUDGEMENT 1. The petitioner is aggrieved by order passed by the I.G., Prisons, Bihar issued vide memo no. 1520, dated 27.2.2007. 2. The I.G., Prisons has exercised his powers under Rule 22 of the Bihar Government Servants (CCA) Rules, 2005 and after issuing show cause notice to the petitioner has awarded certain punishments. 3. The short facts of the case are that a departmental proceeding was initiated against the petitioner by which the petitioner was awarded punishments on 10.11.1988. the proceeding was challenged by the petitioner by filing an appeal before the I.G., Prisons, who set aside the order with a direction that a fresh proceeding should be instituted. The order of the I.G., Prisons is contained in Annexure-8 and has been passed on 29.10.2001. It may be relevant to state here that for the same incident an FIR was also instituted against the petitioner who was a Warden at the time when some prisoners had escaped from the jail custody. It has been alleged that the petitioner was on duty when the prisoners escaped and that he did not take proper action and was negligent in his duty, which resulted in the successful escape of the prisoners. The allegation in the departmental proceedings are similar to the allegations in criminal case instituted against the petitioner. 4. The disciplinary authority after considering the materials as well as taking into account the fact that the petitioner was acquitted in the trial by judgment and order, dated 18.2.2003, dropped the departmental proceeding and by the same order directed that the petitioner should be reinstated in service directing that period of termination and suspension should be counted as period in service. 5. The I.G., Prisons exercising his powers under Rule 28 of the 2005 Rules issued notice to the petitioner that he intended to revise the order passed by the disciplinary authority. Before addressing the merits of the case this court will refer to the provisions of the CCA Rules. Rule 28 envisages that the State Government or the departmental head can revise any order for the purpose of imposing or enhancing any penalty. Before addressing the merits of the case this court will refer to the provisions of the CCA Rules. Rule 28 envisages that the State Government or the departmental head can revise any order for the purpose of imposing or enhancing any penalty. The procedure under which this is to be done has been explained in the proviso which reads as follows: "Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (vi) to (x) of Rule 14 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, no such penalty shall be imposed without an inquiry in the manner laid down in Rule 17 and after giving a reasonable opportunity to the Government servant concerned of showing cause against the penalty proposed on the evidence adduced during the inquiry and except after consultation with the Commission where such consultation is necessary." 6. On examining Annexure-12 it would be apparent that the I.G., Prisons, acting as the revisional authority, has donned and assumed the power of disciplinary authority and issued notice to the petitioner to show cause regarding the allegations made against him. Accordingly, the petitioner filed show cause and thereafter on consideration of the decision of the first departmental enquiry which was subsequently dropped i.e. findings in the departmental proceeding, dated 10.11.1988, punished the petitioner by reverting him to the basic pay scale, by ordering that apart from allowances during the suspension period, the petitioner would not be entitled for his salary, as also directing that the petitioner would not be entitled to salary for the period he was kept out of service due to the earlier order. 7. The order has been challenged on several grounds. However, this court will be considering only those contentions which are relevant for considering the merits of the order contained in Annexure-12. 8. 7. The order has been challenged on several grounds. However, this court will be considering only those contentions which are relevant for considering the merits of the order contained in Annexure-12. 8. There is no doubt about the fact that the head of the department of a State Government can revise any order within a period of six months for the purpose of examining the correctness of the order and thereafter impose or enhance the penalty or revise the order in any manner, after giving a reasonable opportunity to the delinquent employee. However, the provisions of the CCA Rules also envisages that any such proposed order should be passed by the revisional authority only after holding an enquiry. The provisions would thus envisage that the revisional authority can refer the matter for enquiry to a competent person and after the enquiry report, has been submitted, the disciplinary authority would pass an appropriate order of punishment. The revisional authority cannot take the role of a disciplinary authority for the reason that under the Bihar Jail Manual there is specific provision that the delinquent has a right of appeal. The right to appeal is statutory right and is provided under Rule 190 of the Bihar Jail Manual which reads as follows: "190. Appeals from the decisions of Superintendents of Jails shall lie to, and be disposed of by, the Inspector General. Appeals from jail officers still in the service must be made in writing, they should be couched in courteous and respectful language and be forwarded through their Superintendent; and to every petition of appeal shall be attached a copy of the Superintendents order attested by him. This rule applies to an order requiring an officer to retire from service." 9. Therefore, the I.G., Prisons by passing the order of punishment has virtually deprived the petitioner of a right to appeal which is not permissible under the law. 10. Learned counsel refers to Rule 192(A) to argue that the State Government would have the power to revise any order passed by the disciplinary authority. The argument on behalf of the petitioner is misplaced, as the rule envisages that the power of the State Government is superior, and it can revise any order passed by the appellate authority, even if no appeal lies in certain cases. This provision is not at all relevant and applicable in the case of the petitioner. The argument on behalf of the petitioner is misplaced, as the rule envisages that the power of the State Government is superior, and it can revise any order passed by the appellate authority, even if no appeal lies in certain cases. This provision is not at all relevant and applicable in the case of the petitioner. The head of the department is the authority who has the power to revise an order passed by a subordinate authority and on this ground the order of the I.G., Prisons cannot be faulted. 11. At a belated stage a question has been raised on behalf of the State that the petitioner has stated in the writ petition that he has filed an appeal against the order passed by the I.G., Prisons. The appeal is pending since 2007 before the Secretary Home. 12. Mr. Khurshid Alam, counsel for the petitioner has made a,statement at the bar that the appeal has not been disposed of as yet. Considering that the statement has been made at the bar, this court accepts it as correct. 13. The question here is, whether this court can interfere in a case where an appeal has already been filed by the petitioner. In my opinion this is a case where jurisdiction of the I.G., Prisons to act as a disciplinary authority is under challenge, which goes to the root of the matter. Where there is a lack of jurisdiction or where the authority concerned has addressed and asked a wrong question or has taken into account irrelevant materials to come to a conclusion, this court can, exercise its power under Article 226 of the Constitution and pass an order without waiting for the result of the appeal or representation filed before a departmental head. 14. Considering all these facts this court concludes that Annexure-12 is without jurisdiction and could not have been passed by the I.G., Prisons, Bihar, rather, he ought to have referred the matter for the purpose of conducting a fresh departmental proceeding to the concerned authority after giving cogent reasons for doing so. I accordingly* the order contained in Annexure-12. 15. The I.G., Prisons would have the liberty to start a fresh departmental proceeding if he thinks fit and proper in the facts of this case. I accordingly* the order contained in Annexure-12. 15. The I.G., Prisons would have the liberty to start a fresh departmental proceeding if he thinks fit and proper in the facts of this case. While considering whether a fresh departmental proceeding should be instituted, the I.G., Prisons should take into consideration the fact that the occurrence relates to the year 1996 and that the petitioner has been acquitted of the charges of not performing his duties or being negligent and thereby facilitating the prisoners in escaping from the jail. I leave it to the wisdom of the departmental authorities concerned to consider all these aspect before issuing orders instituting any fresh proceeding. 16. This writ petition is, thus, allowed.