D.N. Sinha, J.
1. The facts in this case are shortly as follows: The petitioner was employed as a Sub-Inspector of Police under the Commissioner of Police, Calcutta. While he was attached to the Bankshall Court South, as one of the Police Prosecutors, a charge-sheet was drawn up against the petitioner by the Assistant Commissioner of Police, Arms Act Department on a charge of gross misconduct, with the approval of the Deputy Commissioner of Police. He was found guilty of the charges and dismissed from service with effect from nth November, 1957. The petitioner thereupon, made an application to this Court tinder Article 226 of the Constitution. A rule was issued being C. R. No. 2791 of 1960. The rule came up for hearing before me on the 10th December 1962 and was made absolute, on the ground that the petitioner's appointing authority was the Commissioner of Police and the charge-sheet which was issued by the Deputy Commissioner of Police and the proceedings and thereunder were invalid. Thereupon on the 5th April, 1963 the Commissioner of Police passed the following order:
'In view of the orders passed by Hon'ble Mr. Justice D. N. Sinha of the Calcutta High Court in Civil Rule No. 2751 of 1960 the order of dismissal of Sub-Inspector Satkari Chatterji of H.Q,F. with effect from nth November 1957 passed in H.Q.F. D.O. No. 759 dtaed 15-11-57 is hereby cancelled.
He is posted to R.F. from the date of dismissal and should continue to remain under suspension with, same subsistence allowance and Dearness Allowance with effect from the same data i.e. 11-11-57.'
2. Upto now, no fresh charge-sheet has been issued against the petitioner. In this application, the petitioner has taken only one ground namely, that the order of suspension with retrospective effect is bad in law and should be declared void. Mr. Das on behalf of the respondent does not dispute that the order, in so far as it is retrospective is bad, but argues that it is good prospectively as and from the date of making of the order namely, 5th April, 1963. Mr. Banerjee appearing on behalf of the petitioner has contested this proposition and cited several decisions which I shall now proceed to consider.
3. The first decision cited is of the Court of Appeal presided over by Chakravartti, C. J.--Hemanta Kumar Bhattacharjee v. S. N, Mukherjee, : AIR1954Cal340 . In that case the facts were as follows: The appellant was an employee in the Posts and Telegraph Department. In September, 1950 he was holding the post of Sub-Post Master of the Mission Row Post Office. On 22nd September, 1950 he was arrested on charges under Sections 261, 262, 263 and 409 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act as also other charges. Following his arrest he was placed under suspension. The appellant moved this Court under Article 226' of the Constitution against the continuance of the suspension under the order dated 5-9-50. By order dated 13th March, 1952 Bose, J. (as he then was) made the rule absolute and directed the respondent in that case to forbear from giving effect to the order of suspension dated 5-9-50. On the 4th April, 1952 a Special Bench of this Court quashed the criminal proceedings pending against the appellant before the Sub-Judge and directed him to be retried in accordance with the law. On the 29th April, 1952 two orders were passed by the Superintendent of Pest Offices, South Calcutta. By one of them, the appellant was released from suspension and reinstated as clerk of the Park Street Post Office with effect from 13-10-50, By the second order, he was placed under suspension with effect from 16-1-51 pending investigation into his conduct. Against this retrospective order of suspension the appellant again applied to the High Court under Article 226 of the Constitution. Chakravartti, C. J. said as follows:
'Thus the basic idea underlying the root word 'suspend' and all its derivatives is that a person, while holding an office and performing its functions or holding a position or privilege, should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position or privilege. He is intercepted in the exercise of his functions or his enjoyment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such being the concept of a suspension order, suspension with retrospective effect is a contradiction in terms. The antecedent period which an order of suspension with retrospective effect might be intended to cover, would ordinarily be a period during which the person concerned had already performed the duties of his office or held the relevant position. There can be no meaning in suspending a man from working during a period when the period is past and he has already worked or suspending a man from occupying a position or holding a privilege in. the past when he has already occupied or held it.
* * * * * The result is that the order of suspension, made on the 29th April, 1952, is valid and effective as on and from that date which was in fact not questioned before us but as purporting to cover the period from the 16th January, 1951, up to the 28th April, 1952, it is unwarranted by law and wholly invalid.'
4. The point was considered by Bose, J. (as he then was) in Abdul Hamid v. District School Board of 24 Parganas, 61 Cal WN 880. In that case, the facts were as follows: The petitioner was a school teacher appointed by the District School Board, 24 Paragans. On 15-7-51 the petitioner was arrested by the Police in connection with a criminal case which was pending in the Court of the Sub-divisional Officer, Barasat, in respect of an alleged dacoity at Manikpur. The petitioner was later on released on bail and performed his duties as school teacher upto 22nd August, 1951, after which be was prevented from doing any work. The petitioner in that case was charge-sheeted and was asked to show cause why he should not be discharged from service. On 13-11-51 he was discharged from the criminal case. On 18-4-52 an order was passed by the District School Board to the effect that he was discharged from the Board's service with effect from 15-7-51, the date on which he was arrested by the Police. The teacher thereupon made an application under Article 226 of the Constitution. Bose, J. (as he then was) referred to Rule 12 of the rules framed under the Bengal (Rural) Primary Education Act, 1930 which provided that no teacher shall be punished, dismissed or discharged by the Board without a previous report of his or her work from the District Inspector of Schools. There was no such re-port to satisfy the provisions of the said rule. This finding was sufficient to dispose of the case. But it was also argued on behalf of the petitioner in that case that the order of discharge was ex facie bad inasmuch as it purported to dismiss the petitioner with retrospective effect from the 15th July, 1951. To this it was argued on behalf of the respondents that the order should be considered as effective from 23rd August, 1951 since when the petitioner was not allowed to attend his duties. The learned judge said as follows:
'It may be pointed out that in the case reported in : AIR1954Cal340 it was not questioned by the opposite; parties that the order was not effective and valid from the date on which the order was purported to have been made, although it was challenged that it was bad so far as it had a retrospective operation. It was for this reason that the learned Chief Justice had disposed of the Rule with the observation that he made at p. 10 of the report (CWN) : (at p. 345 of AIR). It appears to me that when the real intention of the Board was to discharge the petitioner with effect from the date when he was put under arrest it is not within the jurisdiction of the Court to substitute a different intention and maintain the order of discharge in a modified form. The order must stand or fall in toto.'
5. The next case to be considered is a judgment of a Division Bench of this Court--Sudhir Banjan Haldar v. State of West Bengal, : (1961)IILLJ283Cal . In that case, the facts were as follows: The plaintiff was employed as a lower division clerk and was serving as a sub-inspector of rationing in the Bhawanipur Sub Area. On 31-10-47 his residence was searched by men of the Enforcement Department, who seized a number of ration cards etc., from the possession of the plaintiff. Thereupon, the plaintiff was arrested by the Police. He was suspended on 4-11-47 and departmental, proceedings were drawn up against him. By a charge-sheet dated 3-6-48 he was asked to show cause why he should not be dismissed from Government service. On 13-8-48, an order was made dismissing the plaintiff, not from the date of the order but from the date of suspension, namely, 4-11-47. The learned Judges found as a fact that the notice to show cause that was sought to be served on the plaintiff did not give him a reasonable opportunity of being present at the enquiry. It is principally on this ground that the order was set aside. A point was taken namely, that the order was bad, because it was retrospective in operation. The learned Advocate for the State argued that its prospectives part was good and should be upheld. It appears that an unreported decision of mine--Akloo v. Chief Executive Officer, Corporation of Calcutta, was cited in support of the said proposition, In that case the Corporation of Calcutta had dismissed an employee from service with retrospective effect. At the hearing it was contended by the Corporation that it had not the intention of making a 'retrospective order and, therefore, the order of dismissal was declared valid with effect from the date on which it was made, Banerjee, J. thought that this order was made on a concession by the Corporation and, therefore, did not deal with the legal effect of it. The learned Judge said as follows:
'We do not think that his Lordship laid down-any proposition that if an order for dismissal wag made with retrospective effect, the prospective portion of the order always stood saved. The difficulties in the way of laying down such a proposition are many. A Court of law does not sit in appeal over an order of dismissal made by an executive authority in a disciplinary proceeding and as such has no power to modify such an order. If such an authority passes an order of dismissal with retrospective effect, it may not be easy to separate the retrospective portion from the prospective portion of the order, because if the authority had not made the order retrospective, it is difficult to say from which other date the authority would have made the order effective. It may not always be that otherwise the authority would have made the order effective from the date of the making of the, order, it might as well be that the authority would have otherwise made the order effective from the date of the service of the order on the delinquent. Since a Court of law has no power to make a proper order for dismissal on behalf of the executive authority and since indication may be lacking in the impugned order itself, as to from which other date it would have commenced, had it not been retrospective it may not always be possible? To draw a line between the retrospective and the prospective part of the order and to uphold the prospective operation of the order, we need not, however, make' much of this point in this appeal'.
6. The concluding portion of his Lordship's judgment shows that the case was not decided upon this point. It was decided on the ground that the plaintiff had not received a notice which gave him a reasonable opportunity of defending himself in the departmental proceedings. I am mentioning this because, if the learned Judges had laid down the law on this case I should be bound by it.
7. With great respect, it appears to me that Chakravartti, C. J. in the case of Hemanta Kumar Bhattacharjee, : AIR1954Cal340 (Supra) did not uphold the prospective portion of the order because it was not contested by the other side. He has given lucid reasons for doing so, Confining ourselves to the case of suspension, he has pointed out that if a person is actually in service for a period, or is entitled to be in service during the same period, it would be a contradiction in terms to suspend him. He could not for the same period, be in service and not be in service at the same time, or be entitled to serve as well as not entitled to serve, simultaneously. There-fore, where an order of suspension is set aside by the Court it means that for the relevant period the Court has decided that the employee is entitled to serve. By a later order it is no longer open to suspend him for the very same period during which the Court had declared that he was entitled to serve. Therefore, when an order of suspension is made retrospectively, the retrospective part cannot be given effect to. It is not that the Court dealing with such a matter must necessarily pass a new order. It is open to it to declare that the order made has an infirmity with regard to the retrospective part but that the prospective part is perfectly valid and should operate upon its own strength. I entirely agree with Banerjee, J. when he says that the question must be decided on the facts of each case. If the Court feels that it is called upon to make a new order, it must express its inability to do so. This is exactly what happened in Abdul Hamid's case. 61 Cal WN 880 (Supra), There, the Court was called upon to declare the order of discharge as valid, not from the date when it was made, but from an earlier date when the teacher was made to stop work. This would have been making a new order, and the learned Judge rightly declined to pass such an order. Let us, however, come to the facts of the present case and see whether the Court is called upon to pass a new order for itself. The petitioner had been dismissed by an order dated 15-11-57 with effect from 11-11.57. This order was set aside by the Court on the ground that the charge-sheet was defective. The dismissal order having been set aside, the petitioner became entitled to continue in service. By an order dated 5-4-63 he was suspended. The object of suspension is abundantly clear. Departmental proceedings were contemplated, and pending such proceedings, he was not allowed to actively participate in the day-to-day work of the police administration. For the reasons elucidated by Chakra-vartti C. J. in Hemanta Kumar Bhattacharjee's case, : AIR1954Cal340 (supra) the retrospective part of the order is bad. Since the Court held that the petitioner was entitled to be in service, he should not be denied that right until an order of suspension is legally made. Such an order, therefore, could not be made as being effective prior to the date of the making of the order. But the prospective part of the order operates upon its own strength, The Court is not called upon to make a new order for itself. If the intention of the parties be the criterion, then it cannot be doubted that the police authorities intended that the petitioner should not actually take part in the day-to-day work of the police administration, even for a moment, until the departmental proceedings had been completed. It is nobody's case that the order of suspension wag a final punishment. It was a temporary order pending further proceedings. In such a case, the obvious intention is that the employee should not take part in the day-to-day administration while there is a cloud hanging over him. In the present case, the petitioner bad been charged with gross misconduct. It was in view of this that he had been suspended in the past, as also by the order dated 5-4-63. There can be no doubt, therefore, that it was the intention of the Police authorities that he should not participate in the day-to-clay administration until the completion of the departmental proceedings. Whether under the relevant rules such an order can be made, has not been questioned in this case. The only complaint made is about the retrospective operation of the order. In my opinion, there is no difficulty in the facts and circumstances of the present case in distinguishing that part of the order which is invalid and that which is valid.
8. That being so, this rule should be made absolute in part and that part of the order dated 5-4-63 which is retrospective should be struck down by an appropriate writ but it should be made clear that the prospective part of it should be allowed to stand,
9. Mr. Banerjee on behalf of the petitioner has stated that it is unjust that the authorities should continue the suspension order and keep a sword hanging on the head of the petitioner without serving another charge-sheet. Mr. Das on behalf of the respondent says that no charge sheet has been served because of the pendency of this application. Although there is no interim order, the respondents, in defence to this Court, did not take any further step. He has, however, agreed that if the respondents at all wish to continue departmental proceedings they will serve the petitioner with a charge-sheet within a month from the date of making of this order. It is accordingly ordered that they should do so. If no such charge sheet is served within the time aforesaid the petitioner will be at liberty to make an application for quashing the order of suspension. There will be no order as to costs.