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Hemanta Kumar Bhattacharjee Vs. S.N. Mukherjee - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 72 of 1952
Judge
Reported inAIR1954Cal340,58CWN1
ActsConstitution of India - Article 311; ;Fundamental Rules - Rule 2
AppellantHemanta Kumar Bhattacharjee
RespondentS.N. Mukherjee
Appellant AdvocateSanat Kumar Mukherjee and ;Niren De, Advs.
Respondent AdvocatePramatha Nath Mitter, Advs.
DispositionAppeal partly allowed
Excerpt:
- chakravartti, c.j.1. the only question debated in this appeal is whether the central government has power to suspend one of its employees, belonging to a subordinate service, with effect from a prior date. by the judgment appealed from, bose, j. answered that question in the affirmative.2. the facts are as follows: the appallant hemanta kumar bhattacharjee is an employee in the posts and telegraphs department of the government of india. in september, 1950, he was holding the post of sub-post-master of the mission row post office, situated at p-13, mission bow in the town of calcutta. on 2-9-1950, he was arrested on, charges under sections 261, 262, 263and 409, penal code and section 5(2), prevention of corruption act, as also a general charge of conspiracy under section 120b, penal code,.....
Judgment:

Chakravartti, C.J.

1. The only question debated in this appeal is whether the Central Government has power to suspend one of its employees, belonging to a subordinate service, with effect from a prior date. By the judgment appealed from, Bose, J. answered that question in the affirmative.

2. The facts are as follows: The Appallant Hemanta Kumar Bhattacharjee is an employee in the Posts and Telegraphs Department of the Government of India. In September, 1950, he was holding the post of Sub-Post-Master of the Mission Row Post Office, situated at p-13, Mission Bow in the town of Calcutta. On 2-9-1950, he was arrested on, charges under Sections 261, 262, 263and 409, Penal Code and Section 5(2), Prevention of Corruption Act, as also a general charge of conspiracy under Section 120B, Penal Code, read, with the provisions under which the specific charges were laid. Following his arrest, he was placed under suspension by a letter, dated 5-9-1950, with effect from the 2nd September preceding when he had been arrested. The criminal proceeding started against him went on for some time, but he was ultimately discharged by an order of the Chief Presidency Magistrate, passed on 13-10-1950. His suspension, however, continued.

On 16-1-1951, he was re-summoned by the Chief Presidency Magistrate on the same charges as previously laid and therealter by a Notification of the West Bengal Government, dated 1-2-1951, the case against him was allotted to the Court of a Special Judge. The Appellant then moved this Court under Article 226, Constitution of India against the continuance of his suspension under the order of 5-9-1950 and by an order, dated 13-3-1952, Bose, J. directed the respondents in that case to 'forbear from giving effect to the order of suspension, dated 5-9-1950 or keeping the petitioner under suspension by virtue of that order.' The respondents were the Union of India and the Superintendent of Post Offices, South Calcutta Division. The order was made on the basis that as scon as the Appellant was discharged on 13-10-1950, the order of suspension, passed on 5-9-1950, had spent its force. The Appellant was not, however, re-instated forthwith, nor was any fresh order of suspension then passed.

On 4-4-1952, a Special Bench, of this Court quashed the criminal proceedings pending against the Appellant before the Special Judge and directed him to be re-tried in accordance with law. That order was made on the ground that the Act under which the case was being tried by the Special Judge was, as regards its material provisions, void. Thereafter, on 29-4-1952, two separate Memoranda, bearing the same number, were issued to the Appellant over the signature of the Respondent, the Superintendent of Post Offices, South Calcutta Division. By one of them, the Appellant was 'released from suspension and re-instated as cleark' of the Park Street Town Sub-Office with effect from 13-10-1950. By the second order, he was placed under suspension with effect from 16-1-1951, pending investigation into his conduct. The present appeal is concerned with the validity of the latter order, so far as it covers the period between 16-1-1951 and 28-4-1952, both inclusive.

3. It is regrettable that the Postal Department could not make a simple order of suspension without committing three mistakes. Two of them were subsequently corrected by two memoranda, dated 9-5-1952, but the third, a curious one, remains. It has been seen that by the first order passed on 29-4-1952, the Appellant was re-instated, as a clerk of the Park Street Sub-office with effect from 13-10-1950. If he was to be suspended again with effect from any subsequent date, he could be suspended only in the capacity and under the description of such clerk. Yet, the second order of 29-4-1952, purported to suspend him with effect from 16-1-1951, as 'Sub Post Master, Mission Row P. O., Calcutta.' On 16-1-1951, there was no Hemanta Kumar Bhattacharjee, Sub-Pest Msster, Mission Row, so that, strictly speaking, by suspending a Sub-Post Master of that name with effect from 16-1-1951, the second order of 29-4-1952 suspended nobody. The error, however, is of no importance, as the Appellant understood the order as made against him and moved this Court against it.

4. The Appellant applied to this Court under Article 226, Constitution of India on 28-5-1952 and, obtained a Rule against the Respondent, the Superintendent of Post Offices, South Calcutta Divison, calling upon him to show cause why an order in the nature of a Writ of Mandamus should not be made, requiring him to cancel the orders of 29-4-1952 and the subsequent orders forthwith and to forbear from giving any effect to them. Bose, J. who issued the Rule, heard it himself and after hearing the parties, discharged it.

The points taken before him were that the action of the Respondent in making the order of suspension after the previous order had been set aside, was mala fide, that it was also in excess of his powers in so far as it was made with retrospective effect and purported to keep the Appellant under suspension for more than fifteen days and, further, that it was bad, inasmuch as it reduced the Appellant in rank without giving him an opportunity to show cause aginst the action proposed to be taken against him. The la t point was not pressed after the learned Judge had pointed out that whether thrre had in fact been any reduction in rank, was not too clear and that the question could not be satisfactorily determined on affidavits in the proceedings before him. On the other two points, the learned Judge held against the Appellant and discharged the Rule, as already stated. Thereupon, the present appeal was preferred.

5. The only point urged in the appeal was that no order of suspension with retrospective effect could at all be made. The appellant did not seek to revive the point that he had been reduced in rank without being given an opportunity to show cause against reduction. The allegation of mala fide was also not repeated. The Respondent who suggested in a casual manner at one stage of the argument that no writ could lie at the instance of the Appellant in view of the provisions of Article 310(1) of the Constitution, quickly abandoned that point.

6. On the question as to whether an order of suspension, made with retrospective effect, was beyond the powers of the Respondent, Bose, J., held that there was nothing in the relevant regulations which imposed any restriction on the power of the authorities, competent to pass suspension orders. No question was raised before the learned Judge or before us to the effect that the Respondent was not the competent authority to pass an order of suspension in respect of the Appellant. The learned Judge appears to have thought that the power to suspend carried with it the power to suspend with effect from any date, past or present or future, and therefore in the absence of any specific limitation on the power, an authority, competent to suspend, could make an order of suspension with retrospective effect.

7. Before proceeding further, it may be useful to refer to the basis on which the order in the present case appears to have been male. The original order of 5-9-1950 was made with effect from the 2nd September on the basis that, on that date, the Appellant had been placed under arrest on charges of criminal offences and the case was still pending. On 13-10-1950, the ca'e terminated in an order of discharge. In dealing with the previous application of the Appellant, Bose, J., held on 13-3-1952, that after 13-10-1950, the first order of suspension could have no further effect, but he added that it was open to the respondents before him to place the Appellant again under suspension by a fresh order, if necessary.

The Appellant had in the meantime been resum-moned on 16-1-1951, to stand his trial on the old charges and therefore cause for a fresh order of suspension had arisen. On 29-4-1952, the fresh, order impugned in the present appeal, was made and it was directed to operate from the date on which a criminal proceeding against the Appellant had again commenced.

8. The criminal proceeding is still pending, because all that this Court quashed was the trial by the Special Judge. A retrial in accordance with law was expressly ordered and is still due to take place, although we were informed that no further steps for a retrial had so far been taken. It was accordingly conceded before us on behalf of the Appellant that no exception could be taken to the order of suspension in so far as it operated on and from 29-4-1952, when it was actually made. All that was contended was that no effect could be given to it from any earlier date.

9. The Appellant's reasoning was the converse of that adopted by Bose, J. Mr. Mukherjee, who appeared for him, submitted that no order of suspension could be made with retrospective effect unless there was an express power in the rules to do so, but since there was none in the present case, the order, so far as it purported to operate from 16-1-1951, was bad. Mr. Mitra who appeared for the Respondent, did not contend that a power to suspend with retrospective effect was implicit in the power of suspension, but claimed that such power had been expressly conferred by Rule 2 of Section 4 of Appendix 3 to the Fundamental Rules.

10. Before Bose, J., the question of the Government's powers under the rules does not seem, to have been fully or properly argued. The learned Judge was only referred to the Postal Regulations, particularly to Regulation 17 and Note I appended to Regulation 21 and the only contention of the Appellant was that those Regulations conferred no power on the Government to suspend an employee with retrospective effect or to keep him under suspension for more than 15 days while the Respondent's contention was that the Regulations did not limit the power of suspension in any manner. Before us, it was conceded that the Postal Regulations, so far as they did not reproduce the Fundamental Rules or the rules made thereunder by the Government of India, were only administrative instructions which had no force of law. Both sides agreed that the powers of the Government were to be ascertained from other provisions which were placed before us on behalf of the respondent.

11. Reference was first made to the Fundamental Rules made by the Secretary of State for India in Council under Section 96B, Government of India Act of 1915-19. They do not provide for the power to suspend, but merely deal with some of the consequences of an order of suspension such as the allowances admissible to a suspended officer and his rights as to leave and retirement. The only material rule is Rule 4 which provides that in respect of all Government servants, not under the administrative control of a local Government, the powers conferred by the Rules are to be exercised by the Governor-General in Council. Reference was next made to the Civil Services (Classification, Control and Appeal) Rules, made by the Secretary of State in Council under Section 96B(2) Of the same Government of India Act.

That section provided that the Secretary of State in Council might make rules for regulating the classification of civil services in India, the methods of their recruitment their conditions of service, pay and allowances, and discipline and conduct and further that the rules, so made, might delegate the power of making rules in regard to such matters as might be specified to the Governor-General in Council or local governments. The Respondent referred us to Rule 14 by which the public services in India had been classified into seven classes, of which the last two are the Central services, Class III and Central Services, Class IV, formerly combined under one class, compendiously called the 'Subordinate Services'. There is no dispute that the Appellant is a member of a subordinate service.

We were next referred to Rule 44 which delegates the power to make regarding, 'inter alia' conditions of service' in respect of the Central Services, Classes III and IV, to the Government under whose administrative control a particular service may be. The service to which the Appellant belongs is under the administrative control of the Government of India. The next rule referred to was Rule 54 which makes a similar delegation of the power to make rules, prescribing the penalties that may be imposed on members of the Central Services, Classes in and IV. It was then pointed out that in exercise of the powers conferred by Rules 44 and 54 of the Civil Service (Classification, Control and Appeal) Rules, the Governor-General in Council had framed rules 'relating to appointments, penalties and appeals of subordinate staff', as notified by the Home Department Notification, No. F-9-19/30, Ests. dated 27-2-1932 and amended from time to time and that Rule 3 of those rules, which related to penalties, provided by Clause (v) for 'suspension' which might be ordered for good and sufficient reason.

The rules which apply to all subordinate services under the administrative control of the Government of India, have been set out in Schedule 1-A of Volume III of the Posts and Telegraphs Manual, First Edition, and were placed before us from that publication. It was lastly pointed out that the Governor-General had made detailed rules regarding suspension of Government servants under his administrative control and those rules were to be found in Section IV of Appendix 3 to the Fundamental Rules, Vol. II--Appendices and Forms, Third Edition.

Rule 1 of Section IV, as amended in 1948, says that 'a servant of Government, against whom proceedings have been taken either for his arrest for debt or on a criminal charge, should be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment.'

Thus, in such cases, the suspension is automatic.

Rule 2 reads as follows :

'2. 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 Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude.'

In the Posts and Telegraphs Manual also, this rule has been included.

12. The charges laid against the Appellant are connected with his position as Sub-Post Master of the Post Office at Mission Row. They also Involve moral turpitude. The whole argument of Mr. Mitra was that Rule 2 applied to the Appellant and under that Rule, the Government had power to place him under suspension 'during the period' between 16-1-1951 and 29-4-1952, when certain criminal charges were pending against him but when he was not detained in custody or imprisoned. According to Mr. Mitra, since Rule 2 empowered the Government to place an employee under suspension 'during the period' mentioned in the rule, an order of suspension relating to such period could be made at any time and so long as the period covered by the order satisfied the requirements of the rule, its validity could not be affected even if it was made after the period had commenced. The power to suspend 'during the period' it was contended, had been given in general terms and it clearly covered the power to place an employee under suspension during a period of the specified kind by an order made with retrospective effect. (13) I find myself unable to accept that contention. The rule gives the Government only a power of suspension and nothing more. According to the Oxford Dictionary,

' 'Suspension' means 'action of debarring or state of being debarred, specially for a time, frorn a function or privilege : temporary deprivation of one's office or position'; or again, 'state of being temporarily kept from doing or deprived of something.'

Similarly, to

'suspend' means to 'debar usually for a time, from the exercise of a function or a privilege: specially to deprive (temporarily) of one's office'; or again, 'to interdict.''Suspended' means 'temporarily deprived of office, position or privilege'; or again, 'intermitted.'

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. If the suspending authority had the powers of a Legislature, he could undoubtedly have said that although an employee might have actually worked during an antecedent period, he would be deemed, not to have worked and to have been under suspension or although a person might have actually occupied a position in the past, he would be deemed not to have occupied it and to have been bereft of the privileges attaching thereto. But the Government of India not being a Legislature and having given itself by the rules no more power than a power to suspend, the ordinary meaning of 'suspension' must apply to the construction of the power. Any order made must be within thelimits of the power to suspend and those limits must be taken to be such as are possible under the meaning of the word 'suspension'. If so, an order of suspension with retrospective effect under the authority of Rule 2 is impossible in the nature of things.

It is true that the Rule empowers the Government 'to place an employee under suspension 'during the period' when a criminal, charge is pending against him and he is not being detained in custody or kept imprisoned. But the question whether an order of suspension can be made with retrospective effect is not answered by the Rule in the Government's favour. In view of the meaning of the word 'suspension', an order can effectively cover the whole of such period as is referred to in the Rule only when it is made before the period has commenced or at the time it commences. In other cases, it can be made and can operate only as respects that portion of the period which commences at its own date and lies after it.

14. In my reading of Rule 2, its framers took the same view. According to the Rule, in regard to the pay and allowances of an employee suspended under its provisions, the provisions of Rule 1 (called 'Para. 1') shall apply. Rule 1 debars a suspended employee from drawing, during the period of his suspension, any pay and allowances other than a subsistence allowance permissible under the Civil Service Regulations. Under Articles. 193 and 193-A of those Regulations, the subsistence allowance is limited to leave salary on the basis of leave on half-pay or half average pay during the first year of suspension and thereafter to three-quarters of such amount. It is thus considerably less than the full pay. Rule 1 further provides that when the matter which caused the suspension is finally decided, an adjustment of the allowances for the period of suspension shall be made and the full pay shall be given only when the officer has been acquitted of blame.

But there is no provision that if the officer was suspended with retrospective effect sometime after he had become liable to suspension and if he drew the full salary during the antecedent period, as he must have done, the excess drawal shall be adjusted against the subsistence allowance payable after the order or that if the matter is finally decided against the officer, he shall be liable to refund the excess amount drawn by him. There could not possibly have been such a provision, because the officer having actually worked during the antecedent period, he would have to be paid his lull salary for the work. In my opinion, the absence of any provision for the refund or adjustment of the excess amount drawn during an antecedent period, covered by an order of suspension, clearly indicates that the framers of Rule 2 did not contemplate a suspension order with retrospective effect.

15. I do not see any inappropriateness or practical objection to taking such a view of Rule 2 and the power of suspension given thereby. In the first place, suspension, although called a 'penalty', is not by itself a punishment or intended to be such. Indeed, no question of punishment can arise till the officer concerned is convicted or even if acquitted, is not acquitted honourably. In the case of an arrest for debt also, no question of punishment can arise till it is finally found that the indebtedness was not such as had arisen, from circumstances beyond the officer's control. When a criminal charge against an employee or the fact of a proceeding for his arrest for debt becomes known, he is suspended only or mainly because it Is not considered desirable or safe that he should be allowed to attend office and perform the duties of his post any further so long as he is under a-cloud and the qualities of his character remain in doubt. But if even after a criminal charge has been brought against an employee or a proceeding for his arrest for debt has been launched, the fact of such charge or proceeding remains unknown to the employer for some time and the employee actually works at his post during the period, there is no point in suspending him retrospectively for such period when the charge or proceeding becomes known. Such suspension can never take effect in a physical sense and for no practical purpose is it required.

How untenable is the view that an order of suspension can be made with retrospective effect will appear if certain possibilities are considered. If such an order can at all be made, it must be possible and legal to make it in all circumstances. Suppose a criminal charge is brought against an employee by a third party in respect of offences involving moral turpitude and he is ultimately sentenced to a fine or to a short period of imprisonment which he serves out when the office is closed for holidays without the employer coming to know of the proceeding during its pendency. If the employer comes to know of the proceeding years afterwards, it will be absurd to say that he can then pass an order of suspension with retrospective effect.

Only little less but still absurd and practically impossible is an order of suspension with retrospective effect when the employer comes to know of the proceeding after it has been pending for sometime. In both cases, it would mean wiping out work already done and treating as non-existent a period of actual service which may have-already been taken into account for various purposes such as leave and promotion.

16. It is true that the Appellant in the present case did not actually perform the duties of his office during the period between 16-1-1951 and 28-4-1952, both inclusive. But that, in my view, is only an accident for which the responsibility was the Respondent's and does not affect the legal position. Even after he had been discharged on 13-10-1950, he was wrongfully kept under suspension on the supposed strength of the order of 5-9-1950. On 13-3-1952, Bose J. declared the continuance of the suspension after 13-10-1950 to be unwarranted and invalid, although he added that in view of the resumption of the criminal proceeding, it would be open to the Government to place the Appellant again under suspension by a fresh order, if such a course was considered necessary,

The effect of the order of Bose 3, was to restore the Appellant to the post held by him and to place him on duty thereat with effect from 13-10-1950, as if, since that date, he had not been under suspension at all. The Respondent himself took that view when by his Memorandum, dated 29-4-1952, as modified by the Memorandum of the 9th May following, he stated that the Appellant would be treated as on duty and gst his usual pay and allowances for the period commencing on 13-10-1950. But acting on 29-4-1952 and by means of a 'fresh order' passed on that date, the Respondent also purported to place the Appellant again under suspension with effect from 16-1-1951, apparently on the basis that on that date the Appellant had been resummoned by the Chief. Presidency Magistrate.

Thus, out of the period during which the Appellant had been, in law and under the order of Bose J. already on duty, the Respondent purported to extinguish a portion by suspending the Appellant during the same by an order passed with retrospective effect. In my opinion, the Respondent had no power to pass any such order and as regards the period from 16-1-1951 upto 28-4-1952, the order passed by him is wholly invalid. Whether or not the Appellant had actually worked during that period, is not material to the position in law, besides that if the Appellant had not actually performed any duties, it was because the Respondent had wrongfully prevented him from doing so. The crucial fact, however, is that in law the Appellant had been on duty during the period and not under suspension and the period being already past, the Respondent could not place him under suspension during it retrospectively, for, to do so would be to suspend him, when the status from which he was intended to be suspended had already been held by him and when there was nothing except the future occupation of his office from which he could be suspended.

It is to be remembered that the mere institution and pendency of a criminal proceeding does not bring about an automatic suspension under Rule 2. The Officer concerned is required to be 'placed under suspension by the issue of specific orders' and it cannot therefore be said that the order of 29-4-1952 was only a formal order, incorporating and placing on record a consequence which had otherwise ensued under the law. Nor can it be said that the Respondent was only regularising his previous order, for, that order having caused to be of effect on 13-10-1950 and being incapable of affecting any period subsequent thereto, the Respondent could not retrospectively convert a subsequent period, during which the Appellant had been kept from his office, into a period of suspension merely by substituting a fresh order for the previous order, under the pretended authority of which he had acted or by giving it, as it were, a new name.

It is true that Bose J. had held that the Government would be at liberty to place the Appellant again under suspension by means of a fresh order, but to what extent the fresh order would be operative, would depend on the terms of Rule 2 and the scope and effect of an order of suspension. Suspension in the past is, as I have shown, an Impossible notion and Rule 2, as I have also shown, does not in fact contemplate such suspension. The result is that the order of suspension, made on 29-4-1952, 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 16-1-1951 upto 28-4-1952, it is unwarranted by law and wholly invalid. During that period, the Appellant was on duty and entitled to the usual salary and allowances and such status and rights could not be affected by the order passed on 29-4-1952 with retrospective effect.

17. For the reasons given above, this appeal is allowed in part. The judgment of Bose J., dated 2-1-1953, so far as it was held thereby that the Respondent's order of 29-4-1952 was valid even as regards the period prior to its date and the order of the learned Judge, dismissing the Appellant's application are set aside. The application of the Appellant is allowed in part and the Respondent is directed to cancel forthwith his orders, dated 29-4-1952 and 9-5-1952, so far as they purport to place the Appellant under suspension during the period between 16-1-1951 and 28-4-1952, both Inclusive, and to forbear from giving any effect to the said orders and from acting thereon or causing them to be acted upon, to the extent mentioned above, in any manner whatsoever.

18. As the Appellant questioned the entire order before the learned trial Judge and took several other points on which he failed, each party will bear its own costs in the trial Court. The Appellant will get from the Respondent his costs of this appeal. Certified for two Counsel.

Lahiri, J.

19. I agree.


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