IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.763 of 2007 ASHOK KUMAR Versus THE STATE OF BIHAR & ORS ----------- For the Appellant : Mr. Sunil Kumar, Advocate For the Respondents: Mr. Shashi Kant Singh, J.C. to G.A. VI ------------- P R E S E N T Hon’ble the Chief Justice & Hon’ble Mr. Justice Kishore K. Mandal -------- Dated, the 24th July, 2008 Vide order dated 14th September, 2005, the Director, Handloom and Sericulture, Bihar, suspended the appellant under Rule 99 of the Bihar Service Code with effect from 2nd March, 2004 on the purported ground that he was unauthorisedly absent and involved in many criminal cases. 2. By a subsequent order dated 1st February, 2006 which was in the nature of corrigendum, the order dated 14th September, 2005 was corrected to the effect that in place of Rule 99, the power shall be read to have been exercised under Rule 100 of Bihar Service Code. 3. The petitioner challenged these orders by filing writ petition. The said writ petition came to be dismissed by the Single - 2 - Judge on 8th August, 2007. It is from this order that the present Letter Patent Appeal has been preferred. 4. The contention of the counsel for the appellant is that neither Bihar Service Code nor any other Service Rule applicable to the appellant permits the employer to suspend the employee with retrospective effect. Reliance is placed upon a Division Bench judgment of this Court in the case of Bachcho Lal Das Vs. State of Bihar and ors. 1983 PLJR - 561. 5. In paragraph 9 of the report, in the case of Bachcho Lal Das, the Division Bench of this Court held thus: “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 of1982,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 - 3 - 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 follows:- “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, in 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.” 6. Nothing has been shown by the counsel for the respondents that the Service Rules provide for suspension with retrospective effect. The suspension with retrospective effect sans statutory provision is unsustainable in law. Merely because the appellant is alleged to have remained absent or involved in some - 4 - criminal cases, the authority did not acquire power to suspend him with retrospective effect for want of any statutory provision. 7. Seen thus, the order dated 14th September, 2005 suspending the appellant with effect from 2nd March, 2004 cannot be sustained. 8. We, accordingly, dispose of this appeal by the following order – (i) To the extent the appellant has been suspended with retrospective effect vide order dated 14th September, 2005 with effect from 2nd March, 2004 is declared bad in law. In other words, the order of suspension shall be effective from 14th September, 2005. (ii) The order passed by the Single Judge on 8th August, 2007 is set aside accordingly. (iii) Writ petition filed by the writ petitioner is allowed to the aforesaid extent. R. M. Lodha, CJ Kishore K. Mandal, J. Anil/ - 5 -