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Saroj Kumar Datta Vs. State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKolkata High Court
Decided On
Case NumberMatter No. 134 of 1958
Judge
Reported inAIR1959Cal294
ActsFundamental Rules - Rule 2; ;General Clauses Act, 1897 - Section 16; ;Code of Criminal Procedure (CrPC) - Section 197
AppellantSaroj Kumar Datta
RespondentState of West Bengal and anr.
Cases ReferredStirland v. Director of Public Prosecutions
Excerpt:
- .....with the departmental proceedings in the absence of such documents. i however pointed out that the criminal proceedings against gupta might take years and if the matter goes higher up, the time taken may stretch beyond reasonable limits. so far as the respondents are concerned, they were agreeable that a charge-sheet should be submitted at once, and departmental proceedings commenced without delay, and the matter decided one way or the other within a reasonable time. the petitioner however, having taken time to consider the proposition, has turned it down and stands on his strict legal rights which will therefore have to be considered. the stand that the petitioner has taken is really dependent on a rule occurring in the fundamental rules. it is to be found in vol. ii of the fundamental.....
Judgment:
ORDER

D.N. Sinha, J.

1. The facts in this cane are shortly as follows : In December, 1951, the petitioner who is an accountant, was appointed as a Chief Accountant under the Directorate of Transportation of the State of West Bengal. In 1953, the petitioner's post was re-designated as a Director of Administration and Accounts, in the Directorate of Transportation, Government of West Bengal. In May, 1955, it was discovered that there were certain defalcations for large sum in connection with the motor vehicle tax in respect of vehicles run by the said Department, Upon that discovery, one Birendra Kumar Gupta, who was a clerk in the said department and in change of the payments, absconded. Subsequently the said Birendra Kumar Gupta surrendered before the Sub-Divisional Officer, Barrackpore and made a confessional statement implicating the petitioner in respect of the defalcations. On the 29/30th June, 1955, the petitioner's residence was searched and he was arrested . On the 1-7-1955, the S. D. O. Barrackpore released him on bail. On 2-7-1955 an order was passed suspending the petitioner. A copy of that order is annexure 'A' to the petition. The relevant part of the order is as follows :

'Whereas defalcation of large amounts of Government money over the payment of road taxes for motor vehicles belonging to the Directorate of Transportation has taken place while he was in charge of payment and whereas the police has arrested him on suspicion in connection with the investigation of the loss of Government money, Sri S. Dutt, Director of Administration and Accounts, Directorate of Transportation, is hereby informed that he has been placed under suspension with effect from 1-7-1955 (forenoon) .....He is further directed to note that this departmental action is without prejudice to any other action that may appear justified later on.'

2. On or about 8-12-1956, the S. D. O. Barrackpore received a letter from the Criminal Investigation Department that Government did not consider that there was a prima-facie case against the petitioner and no sanction was granted under Section 197 of the Criminal Procedure Code for the prosecution of the petitioner. It is stated that on 8-1-1957 the petitioner was discharged by the S. D. O. Barrackpore and the bail-bond was released. On 9-1-1957 the petitioner requested the respondent No. 2 to release him from suspension, but there has been no such release. In fact the suspension order still continues and he has not been allowed to rejoin. This Rule is directed against this suspension order and the continuance thereof. According to the petitioner, in the facts and circumstances of the case, as soon as he was released from custody the suspension order spent itself, and unless there was a specific order made again for his suspension while he was not in Custody, he could not be legally considered to be under suspension and therefore the respondents are in the wrong in so far as they are treating him as suspended. The respondents take up the petition that the order of suspension is a composite order. It is not an Order made simply because the petitioner was arrested, but also because of the defalcation that had taken place while the petitioner was in the helm of affairs, and in respect of which departmenal proceedings are contemplated, and the order of suspension will continue until the departmental proceedings terminate. When this application first came up, a grievance was made by the petitioner on the question of the contemplated departmental proceedings. It was urged, and not without reason, that the petitioner was being kept indefinitely suspended without departmental proceedings being initiated and without even a charge-sheet being served. On behalf of the respondents it was stated that the difficulty was that this clerk Birendra Kumar Gupta was being prosecuted before a special Court and all relevant documents, books etc., were required for that prosecution and it was very difficult and almost Impossible to go on with the departmental proceedings in the absence of such documents. I however pointed out that the criminal proceedings against Gupta might take years and if the matter goes higher up, the time taken may stretch beyond reasonable limits. So far as the respondents are concerned, they were agreeable that a charge-sheet should be submitted at once, and departmental proceedings commenced without delay, and the matter decided one way or the other within a reasonable time. The petitioner however, having taken time to consider the proposition, has turned it down and stands on his strict legal rights which will therefore have to be considered. The stand that the petitioner has taken is really dependent on a rule occurring in the Fundamental Rules. It is to be found in Vol. II of the Fundamental Rules, App. No. 3, heading IV, described as 'Suspension during pendency of criminal proceedings or proceedings for arrest for debt or during detention under a law providing for preventive detention.' The particular rule being Rule 2, which rims as follows :

'A servant of Government against whom a criminal charge or a proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisoned (e.g., whilst released on bail), if the charge made or proceeding taken against him is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude. Tn regard to his nay and allowances, the provisions of paragraph 1 aboves shall apply.'

3. This rule has been interpreted by me in Surjya Kumar Chatterjee v. S. N. Banerjee, : AIR1955Cal365 . There, the suspension order was in the following form :

'The under-mentioned officials having been arrested by the police under Sections. 261, 262 and 420, I. P. C., Section 5 (2) of Act II of 1947 and conspiracy under Section 120B, I. P. C., are placed under suspension with effect from the afternoon of 2-9-1950.'

In that case, the employee concerned was arrested and subsequently released from custody. But after his release from custody, there was no specific order continuing his suspension. It was held that the matter was governed by Rule 2 mentioned above, and that in the absence of a specific order the suspension could not be deemed to have continued. It is argued that in this case the same thing has happened, and that upon the petitioner having been released from custody, no specific order was made and consequently the suspension order did not continue. If of course the facts in the present case are to be taken to bet identical with that of Surjya Kumar's case, : AIR1955Cal365 (supra), then indeed, it follows that the suspension order cannot be sustained. This contention, however, is being met by two arguments. The first is that there is a substantial difference in the suspension order itself. Before dealing further with the question, it is to be recollected that the General Clauses Act gives a general power upon an appointing authority to order suspension. In this particular case, the Government was the appointing authority, and could order suspension, pending de-partmental proceedings, or even when departmental proceedings were contemplated. That is the general proposition of law. Rule 2 which has been mentioned above, propounds a specific rule, and where the circumstances bring it within the four corners of this rule, then the general law is qualified to that extent. It will appear from Rule 2 mentioned above, that the rule deals with the state of affairs as would come into being, when the employee was not actually detained in custody or in prison. The condition precedent however is that the employee must be a person against whom a criminal charge was pending. We are not concerned here with proceedings for arrest for debt. Therefore, where a 'criminal charge' is pending against a government servant and he is actually detained in custody or in prison, then indeed he is automatically placed under suspension under Rule 1. But when he is not in custody or ceases to be in custody, e.g., when he is released on bail, there must be a specific order for suspension. The question is whether in this case there can be said to be a specific order of suspension while the petitioner was not in custody. It is for that reason that I have set out the suspension order that was issued in Surjya Kumar's case, : AIR1955Cal365 (Supra). The suspension order in that case recited that the emnloyee there 'having been arrasted' was placed under suspension. There can be no doubt, therefore, that the suspension was caused by the arrest. It was, therefore, held that when the employee ceased to be in custody the suspension order had exhausted itself and there could be said to be no specific order of suspension during the period when the employee was at large. Coming to the suspension order in this particular case, we find that it is of a different nature altogether. Here, the suspension order has not been issued because of the arrest. There are two distinct recitals in the order, either of which may be considered as the causative effect for the suspension. We might say that because there was a defalcation of large amount of Government monev belonging to the Directorate of Transportation while the petitioner was in charge of it, therefore, the petitioner was suspended, in contemplation of any departmental action that may be taken against him. That necessarily means departmental action like a departmental enquiry with a view to impose departmental punishment upon the petitioner. Then there is a second recital, about the arrest of the petitioner by the Police on suspicion in connection with the investigation of the loss of government money. It is the second causative fact, leading to the suspension of the petitioner. Mr. Roy appearing on behalf of the petitioner says that these two recitals must be taken conjointly and not separately. I am unable to accept this argument. Where there is a general power of suspension, and also a particular power, and both are mentioned, there is no reason to suppose that the particular reason has totally ousted the general reason. In other words, the Government had power under the ordinary law, of suspending the petitioner, because there had been defalcation of large amounts of government money in a department under the control of the petitioner. Secondly, the Government had a right to suspend him because he had been arrested and put in custody. As far as I can see, in the order of suspension there has been an exercise of both the powers. One might go so far as to say that the exercise of the second power was superfluous. In the construction that I have put upon the order of suspension, the consequences laid down in Rule 2 above did not necessarily ensue, and the suspension order is not bad because there has not been a fresh specific order of suspension. The specific order for suspension during the period when the petitioner is not in custody is there. The second point taken in answer is that in any event the petitioner does not come under Rule 2, because no 'criminal charge' has been pending against him at any time. This aspect of the question has not been raised in previous decisions, and appears to be one of some complexity. Mr. Roy has drawn my attention to three very interesting English cases. The first decision is In re. Maltby, (1881) 7 QBD 18. It is unnecessary to relate the facts of this case in detail. It appears that an European British subject in India shot a few Indians while travelling in a palanquin. The district Magistrate was informed of it, and he went with witnesses to his private house and declared him to be suffering from insanity. He was then put in a lunatic asylum and later on Government made an order under 14 and 15 Vict C. 81, S. 1, for removal of the prisoner to England. Under that parliamentary statute, if a Britisher was charged with a crime in a court and was found to be of unsound mind, then he could be sent to England without trial. The question was whether he was 'charged in a court.' It was found by Pollock, J,, that learned Counsel appearing was unable to cite to the court any technical meaning of the word 'charged' as used in the courts in India at the date of the passing of the statute. It was held that the proceedings taken by the Magistrate were proceedings in court, and in any event a liberal view of the law should be taken because Europeans living in hot climates were supposed to be peculiarly prone to insanity. In my opinion, this case really does not assist us very much. Firstly, it is dangerous to apply the construction of one Act to another, and secondly, this is a very ancient decision ana it appears that the law was slightly different under the Criminal Procedure Code of 1872. Nor was the argument before the English Court very helpful so far as the Indian Law was concerned. The next case cited is a much more modern one, Amell v. Harris, (1944) 2 All ER 522. This dealt with the Summary Jurisdiction Act, 1879 and considered the circumstances where a person could be said to be 'charged before a court of summary jurisdiction.' It was held that the expression 'the person charged' is an expression which has various different meanings and may include the case of a person who had been arrested upon a charge, as he might be if it was a case of felony, or a person who has been arrested upon a warrant granted by a magistrate, or even the case of a person who has been summoned, that being another form of bringing a person before a court to appear and answer a charge. The third case that is cited is in Stirland v. Director of Public Prosecutions, 1944-2 All ER 13. In this case, it was held that the word 'charged' must mean 'accused' before a court. In my opinion, tile first thing that we have to consider is the particular rule that is to be construed. In Rule 2 it is stated that a servant of government to come within the scope of the rule, must be one against whom a 'criminal charge' was pending. There can be no doubt that there must be first a 'criminal charge' and it must be before a 'court,' and it must be pending. Section 197 of the Code of Criminal Procedure lays down that incases which come within its scope, no proceedings can be had before a court without the necessary sanction. Therefore, on the facts of this particular case, we are not called upon to go into the larger question as to whether the word 'charged' should be given a restricted or a liberal meaning. If there is a statutory bar to proceedings in court, then I fail to understand how a criminal charge could be said to be pending in a court against a person, when the court is expressly precluded from taking cognisance of it by reason of the absence of a sanction. I, therefore, do not propose to decide the larger question as to what should be the meaning of the word 'charged' in this rule. But I do hold that in the facts and circumstances of this case, where sanction was necessary under the-Code of Criminal Procedure to prosecute the petitioner in a court of law and such sanction was not forthcoming, there could not be said to be a criminal charge pending against him as contemplated under the rule in question.

4. In the premises, both these points mustbe decided against the petitioner and in favour ofthe respondents. The result is that no fault canbe found with the suspension order, which stillcontinues. I trust, however, that the matter, so fayas the petitioner is concerned, should be expedited.The Rule is, therefore, discharged, interim orders,if any, are vacated. There will be no order as to costs,


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