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Hemanta Kumar Bhattacharjee Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2974 of 1956
Judge
Reported inAIR1958Cal239
ActsWest Bengal Fundamental Rules - Rule 3; ;Constitution of India - Article 311
AppellantHemanta Kumar Bhattacharjee
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateParty in Person
Respondent AdvocateBinayak Nath Banerjee and ;Amiya Kumar Mukherjee, Advs.
Cases ReferredHemanta Kumar Bhattacharjee v. S. N. Mukherjee
Excerpt:
- .....who discharged him on 13-10-1950. on 16-1-1951 he was resummoned on the identical charges by the chief presidency magistrate. by a notification of the west bengal government dated 1-2-1951, the case of the petitioner was allotted to the court of a special judge, mr. s. c. dutta gupta under west bengal act xxi of 1949. the petitioner thereupon moved the high court in criminal misc. revn. no. 283 of 1951 & on 4-4-1952, a special bench of this court, quashed the proceedings in the court of the special judge, being of the opinion that section 4(1) of west bengal act xxi of 1949, was ultra vires the constitution, and directed that the accused was to be held as an under-trial prisoner. next, the petitioner moved this court against the order of suspension dated 5-9-1950 (matter no. 215 of.....
Judgment:
ORDER

Sinha, J.

1. The facts in this case are briefly as follows: The petitioner Hemanta Kumar Bhattacharjee, was employed in the Postal Department as Sub-Post Master of the Mission Row-Post Office. On 2-9-1950, he was arrested on a charge under Sections 261, 262 and 409 I. P. C.. read with Section 5(2) of the Prevention of Corruption Act. On 5-9-1950, he was suspended, with effect from 2-9-1950. He was sent up tor trial before the Chief Presidency Magistrate, Calcutta who discharged him on 13-10-1950. On 16-1-1951 he was resummoned on the identical charges by the Chief Presidency Magistrate. By a notification of the West Bengal Government dated 1-2-1951, the case of the petitioner was allotted to the Court of a Special Judge, Mr. S. C. Dutta Gupta under West Bengal Act XXI of 1949. The petitioner thereupon moved the High Court in Criminal Misc. Revn. no. 283 of 1951 & on 4-4-1952, a special bench of this Court, quashed the proceedings in the Court of the Special Judge, being of the opinion that Section 4(1) of West Bengal Act XXI of 1949, was ultra vires the Constitution, and directed that the accused was to be held as an under-trial prisoner. Next, the petitioner moved this Court against the order of suspension dated 5-9-1950 (matter No. 215 of 1951). On 13-3-1952 Bose, J. held that as soon as the petitioner was discharged on 13-10-1950, the suspension order had spent its force. The learned Judge made the rule absolute, directing the respondents, to forbear from giving effect to the order of suspension (Hemanta Kumar Bhattacharjee v. N. N. Sen Gupta : AIR1953Cal504 ). Thereupon, on 29-4-1952, two separate memorandums were issued to the petitioner by the Superintendent of Post Offices, South Calcutta (Respondent No. 4).

2. By one of them, the petitioner was released from suspension and re-instated as a clerk of the Park Street town Sub-office with effect from 13-10-1950. By the other, he was placed under suspension with effect from 16-1-1951, pending investigation into his conduct. Subsequently on 9-5-1952 the memorandums were modified to certain extent as regards pay, allowances etc. On 9-4-1952 the Government of West Bengal promulgated Ordinance No. VIII of1952, amending the West Bengal Criminal Law Amendment Special Courts Act, 1949. On 11-6-1952, Mr. J. C. Lodh to whom the petitioner's case had been allotted, issued summons under Ordinance VIII of 1952, On 30-7-1952 the ordinance was replaced by Act XII of 1952. The petitioner moved the High Court in C. Rev. No. 591 of 1952. This matter came up before a division bench presided over by Lahiri, J. On 24-3-1953, the learned Judges held that the ordinance expired on 28-7-1952, and the Act No. XII of 1952, did not contain any continuance clause. It was therefore held that proceedings commenced tinder the Ordinance could not continue beyond 29-7-1962. The proceedings be-fore Mr. J. C. Lodh, were accordingly quashed. The learned Judges stated that it was not necessary for them to express any opinion as to whether any fresh proceedings could be started against the petitioner.

3. Meanwhile, the petitioner had made an application to this Court under Article 226 of the Constitution, against the orders contained in the memorandum dated 29-4-1952 (matter No. 72 of 1952). This rule was discharged by Bose, J. on 2-1-1953, against which the petitioner preferred an appeal, being F. M. A. No. 40/53. On 11-8-1953, a divisional bench of this Court, presided over by Chakravartti, C. J. allowed the appeal. It was held that there could not be any such thing as a retrospective order of suspension. The application was allowed in part, and the respondent was directed to cancel forthwith his orders dated 29-4-1952, and 9-5-1952, so far as they purported to place the appellant under suspension during the period between 16-1-1951 and 28-4-1952, both inclusive, and to forbear from giving effect thereto. This is a reported case, Hemanta Kumar Bhattacharjee v. S. N. Mukherjee : AIR1954Cal340 .

4. On 5-9-1953, an order was passed by Respondent No. 4 as follows:

'Sri Hemanta Kumar Bhattacharjee is hereby informed that the orders dated 29-4-1952 and 9-5-1952, so far as they placed him under suspension during the period between 16-1-1951 and 28-4-1952 both inclusive are hereby cancelled. The said orders will remain valid and effective from 29-4-1952. The period from 16-1-1951 to 28-4-1952, will be treated as if spent on duty.....'

On or about 18-6-1953, a fresh charge sheet with fresh sanction was filed before the Court of Mr. B. C. Ghose, Judge, Special Court. On 22-2-1956, Mr. B. C. Ghose discharged the petitioner in that proceeding, being of opinion that he had no jurisdiction, inasmuch as the West Bengal Criminal Law Amendment Act, 1949, as amended, had no application by reason of the fact that on 9-4-1952, proceedings against the petitioner were pending in a Court other than a Special Court. He however directed the petitioner to take his trial before the Chief Presidency Magistrate, Calcutta. On 12-3-1956, the Chief Presidency Magistrate, Calcutta directed issue of process against the petitioner. Against this, the petitioner moved the High Court (Cr, Rev. No. 38 of 1956). This application came up for hearing before a divisional bench presided over by K. C. Das Gupta, J. and the rule was made absolute on 19-12-1956. Das Gupta, J. stated as follows:

'But for the decision of this Court on 24-3-1953 I would have no hesitation in holding that the consequences of Section 12 of the Act was that the different allotments whether to Mr. J. C. Lodh's Court or to Mr. B. C. Ghose's Court were wrong and neither of these Courts had any jurisdiction in the matter, so that the correct position in law would be that the case was still pending in the Chief Presidency Magistrate's Court, the position, that was reached after this Court's order passed on 4-4-1952. T cannot seeany way however of escaping from the conclusion that by its decision of 24-3-1953, this Court must be taken to have held that Sri J. C. Lodh had jurisdiction in the matter. It seems clear that the effect of Section 12 of the Act was not raised before the Court and the argument proceeded on the basis that Mr. Lodh's Court had jurisdiction. The only point being whether having had jurisdiction under the ordinance, the jurisdiction continued after the ordinance came to an end and the Aft took its place. I do not think it will be permissible to read this Court's decision as not containing an implied decision that Mr. Lodh's Court had jurisdiction to try this case. That being the position, it must be held that the Chief Presidency Magistrate's Court had ceased to have jurisdiction................ '.

5. The position therefore, summarised, may be stated as follows:

(1) The petitioner was originally charged before the Chief Presidency Magistrate, Calcutta, in the year 1950/51.

(2) Strictly speaking, the case of the petitioner, could not be allotted either to Mr. J. C. Lodh or to Mr. B. C. Ghose.

(3) The divisional bench judgment of Lahiri and Guha, JJ. dated 24-3-1953 in Rev. Case No. 591 of 1952, however decided, and or must be taken to have decided, as follows:

(a) That Mr. J. C. Lodh had jurisdiction to try the case.

(b) But the Ordinance No. VIII of 1952, having expired on 29-7-1952 and there being no continuance Clause in Act XII of 1952, no proceeding commenced under that ordinance could be in force beyond 29-7-1952.

(4) Mr. B. C. Ghose held on 22-2-1956, that as the proceedings against the petitioner was pending in a Court other than a Special Court on 9-4-1952, the West Bengal Criminal Law Amendment Act of 1949 as amended had no application, and the matter was still pending before the Chief Presidency Magistrate, Calcutta and he had himself no jurisdiction.

(5) In the divisional bench judgment of Das Gupta and Guha, JJ. dated 19-12-1956, in Cr. Rev. No. 38 of 1956, it was held that the judgment dated 24-3-53 in Rev. No. 591 of 1952 having decided that Mr. J. C. Lodh had jurisdiction at some point of time, it must be held that the Chief Presidency Magistrate's Court had ceased to have jurisdiction. This is the position not by operation of law but by the principles of res judicata or principles analogous thereto.

(6) The next position is that after the expiry of the Ordinance VIII of 1952, on 29-7-1952, Mr. Lodh ceased to have jurisdiction, and the Chief Presidency Magistrate's Court had already ceased to have jurisdiction. On 18-6-1953, Mr. B. C. Ghosh held that he also has no jurisdiction and never had jurisdiction. So far as he is concerned, the decision in Cr. Rev. No. 38 of 1956 also holds that he had no jurisdiction.

(7) Therefore, and in view of these decisions, no proceeding can be said to be pending in a competent Court against the petitioner after 29-7-1952 that is to say, neither before theChief Presidency Magistrate, Calcutta, nor before any Special Court.This rule was issued on 11-9-1956, and the short point is also whether the petitioner can be treated as under suspension, at any time after 29-7-1952. Mr. Mukherjee appearing on behalfof the respondents admits that the matter is governed by Rule 3. Appendix 3 of the Fundamental Rules, Volume II, and the moot point for consideration is as to whether any criminal charge is pending against the petitioner. He says that if upon a construction of the divisional Court judgments mentioned above, I am of the opinion that no criminal charge or proceedings based thereon was pending after 29-7-1952, then it would be useless for him to argue that the suspension order could continue after that date. I do not see how I can construe those judgments in any other way. If the matter was res integra I might have held that thecriminal charge was pending before the Chief Presidency Magistrate's Court. But this is the very point negatived by the decision in Cr. Rev. No. 38 of 1956, dated 19-12-1956 and certainly I cannot go behind it. The criminal charge must be pending somewhere. If it is neither pending in the ordinary, nor in the Special Court, then where can it be said to be pending? The only point that remains to be considered is the effect of the orders made in matter No. 72 of 1952 or F. M. A. No. 40 of 1953 (B), because the learned C. J. by his judgment dated 11-8-53 has upheld the suspension order after 29-4-1952. It is however quite clear that the point as to whether the suspension order enured beyond 29-7-1952, by reason of the effusion of the ordinance, was never raised or decided in that application or appeal. Indeed, the matter only arises for consideration after the decision in Cr. Rev. No. 38 of 1956 dated 19-12-56 when it was decided that after the case was taken up by Mr. Lodh, the Chief Presidency Magistrate, Calcutta must be deemed to have no further jurisdiction.

6. Besides the above, one other point was argued. It was urged that the order dated 29-4-1952 was bad in so far as it ordered retrospective reinstatement from 13-10-1950. It is not only that it is retrospective, but it is admitted in the counter affidavit (para 6) that

'on 5-9-1953 it was not possible to allow the petitioner to join his duties during 16-1-1951 to 28-4-1952 and therefore he was notionally treated as on duty during the said period'.

In my opinion retrospective suspension is a contradiction in terms and not permissible. Retrospective re-instatement is also not possible under the prevailing circumstances, although it may not be a contradiction in terms. Re-instatement means that a man is put back in his job. If during a period a man has actually been suspended, or not allowed to carry on his job, how can he later on be said to have held the job? It is conceivable of course that the authorities may treat him as having held the job and give him his full emoluments, even if he did not work. But that is another matter altogether. It has been pointed out that no such position is contemplated or provided for by the Rules asthey exist. A post is held by him who actually holds it and works in it. There is no provision anywhere about any notional holding of posts, and indeed I sympathise with the letters written by the Accountant General's office, asking for the rules whereby a man's pay can be sanctioned or paid for a period during which he actually did not work or how could he be said to hold a post which in fact another man was holding. The authorities were unable to point out any such rules and none have been pointed out to me, for the simple reason that none exist.

7. In this case however I do not see that the question of reinstatement arises at all. Reinstatement can only arise if a man is dismissed or removed from service or if otherwise his service has terminated and he is brought back to service. If a person is merely suspended, he still continues to be in service, but is in a state as it were, of suspended animation. When the period is over, he has simply to be allotted a job. The word 'reinstatement' if used in this respect, is only loosely used and has no legal significance.

8. The result is, that in law, all orders of suspension against the petitioner, made prior to 29-7-1952 have expired on that date, and any order of suspension made thereafter are invalid.

9. The rule is accordingly made absolute and a writ in the nature of mandamus is issued directing the respondents to forbear from treating the petitioner as being under suspension after 29-7-1952 and all orders of suspension which are to the contrary effect are hereby set aside and quashed. This will not prevent the respondents from taking steps in future in accordance with law.

10. The respondents must pay the petitioner his costs of this application. Hearingfee assessed at 2 gold mohurs.


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