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2013 DIGILAW 676 (PAT)

Akhilesh Kumar Sharma v. State of Bihar

2013-06-24

NAVANITI PRASAD SINGH

body2013
ORAL ORDER While the petitioner was Executive Engineer, Patliputra Building Division, Patna. A vigilance raid was conducted in his premises on 17.3.2007 giving rise to Vigilance P.S.Case no. 37 of 2007 instituted under various sections of Prevention of Corruption Act. Later on other sections of Indian Penal Code were also added. The petitioner was arrested immediately. While the petitioner was in judicial custody, on 4.4.2007 the impugned order of suspension (Annexure 1) was issued by the State. The order of suspension states that a criminal case under Prevention of Corruption Act having been instituted and the petitioner having been taken into custody, the petitioner was suspended in terms of Rule 9(1)(c) read with Rule 9(2)(a) of the Bihar Government Servant (Classification, Control &Appeal) Rules, 2005. The petitioner challenged this order of suspension. 2. While filing this writ petition the petitioner has stated that he has not moved this court earlier for the relief sought for in this writ petition. 3. When the counter affidavit was filed by the State, it was pointed out that, in fact, the petitioner had earlier filed C.W.J.C.No. 16452 of 2007 reported in 2008(2) PLJR 212 challenging this very Annexure, which was Annexure 1 to the said writ petition. The writ petition was dismissed by judgment and order dated 12.3.2008 upholding the order of suspension notwithstanding release of the petitioner from custody. Being aggrieved by dismissal of the said writ petition, the petitioner preferred L.P.A. no.262 of 2008, which was again dismissed by judgment and order dated 26.8.2008 by the Division Bench. While dismissing the L.P.A. aforesaid this is what the Division Bench has held in paras 13 and 14 of the said judgment:- “13. In so far as the present case is concerned, it is an admitted position that on 17th March, 2007, a criminal case was registered against the appellant and he was also arrested on that date and by a composite order passed on 04th April, 2007, in exercise of the power under rules 9(1)(c) and 9(2)(a), the appellant was suspended. It is true that the appellant was released on bail in the month of July, 2007 an in view thereof, his suspension under rule 9(2)(a) may not continue any longer, but his suspension under rule 9(1)(c) does not get affected. 14. The contention of the senior counsel based on rule 9(7), is noted to be rejected only. It is true that the appellant was released on bail in the month of July, 2007 an in view thereof, his suspension under rule 9(2)(a) may not continue any longer, but his suspension under rule 9(1)(c) does not get affected. 14. The contention of the senior counsel based on rule 9(7), is noted to be rejected only. In view of what we observed above that suspension order under rule 9(1)(c) holds the field and is not rendered bad in law, rule 9(7) is of no help to the appellant. As a matter of fact, rule 9(7), in the fact-situation, has no application at all. Merely, because the appellant is being proceeded simultaneously in departmental proceedings and there was some delay in framing the departmental charges, that does not invalidate the order of suspension dated 04th April, 2007 which is founded in exercise of the power under rule 9(1)(c) of the Bihar CCA Rules, 2005.” 4. Concealing these facts, the present writ petition was filed. 5. Learned counsel for the petitioner relied on a Division Bench judgment of this case in the case of Anand Swarup -v- The State of Bihar & ors. since reported in 2011(2) PLJR 1021 . It is submitted that the aforesaid Division Bench allowed the writ petition wherein suspension order was passed under similar circumstances holding that once the person was released on bail the suspension order automatically stood revoked. I would like to point out two things about this judgment in the case of Anand Swarup. Firstly, the earlier the judgment of this Court in the case of Akhilesh Kumar Sharma in L.P.A. (supra) in which the facts were identical and the law was laid down as noticed above, had not been brought to the notice of this Court in Anand Swarup case. Secondly, in para 8 of Anand Swarup case their Lordships have held on facts that it appears that the suspension order was with reference to Rule 9(2)(a) and not with reference to Rule 9 (1)(c). Thus, in my view, the petitioner cannot get benefit from the judgment of Anand Swarup case It is a judgment in personem (petitioner’s L.P.A.) and so long it operates the petitioner cannot get any relief. A judgment in personem cannot stand obliterated by a judgment in rem in another case. Thus, in my view, the petitioner cannot get benefit from the judgment of Anand Swarup case It is a judgment in personem (petitioner’s L.P.A.) and so long it operates the petitioner cannot get any relief. A judgment in personem cannot stand obliterated by a judgment in rem in another case. What is required that after the judgment in rem is rendered, the judgment in personem i.e. inter party has to be appealed and got modified in terms of the judgment in rem so long it is not done, judgment in personem i.e. judgment inter party will continue to bind. 6. Even otherwise the writ petition is not to be entertained. The petitioner had specifically challenged the suspension order in the earlier writ petition unsucessfully and had gone in appeal where also he was unlucky. Concealing these facts he has filed the present writ petition stating that he has not filed any writ petition earlier for the relief claimed, which to his knowledge itself was false. 7. As his earlier writ petition and L.P.A. challenging the same very order on the same very ground have already been dismissed by a well considered judgment, in such a situation I dismiss this writ petition with a cost of Rs. 20,000/- (twenty thousand) to be deposited by the petitioner with Legal Services of Authority High Court within one month from today and receipt be filed showing deposit of the cost so awarded immediately thereafter.