1. The petitioner has come up before me for the second time. The facts are briefly as follows : He was appointed as a ticket checker in the Calcutta Canals Sub-Division under the Executive Engineer Canals Division, Irrigation Departmerit of the Government of Bengal. At the relevant moment he had been promoted to the post of a sub-divisional clerk. On 27-7-1949 he was placed under suspension. Thereafter a departmental enquiry was instituted and on 23-2-1953 he was discharged from service. On 3-8-1953 he made an application to this court under Art. 226 of the Constitution challenging the order of his discharge and a Rule was issued. That Rule was heard and decided by me on 10-5-1954. I ordered that the Rule was to be made absolute and the order of discharge dated 23-2-1953 passed by the Executive Engineer, Canals Division, was set aside and/or quashed and a writ in the nature of mandamus was issued directing the respondents to forbear from giving effect to it, I then proceeded to say as follows :
'The result is that the petitioner will be put in a position as if the order of discharge had not been made. The authorities will now proceed in accordance with law.'
2. This decision has been reported : - 'Pro-bodh Chandra v. Executive Engineer, Canals Division', : AIR1955Cal276 (A). On 1-7-1954 the Executive Engineer, Canals Division, informed the petitioner that 'He was under suspension and will be treated as under suspension from the date of discharge on 23-2-53 by High Court's order referred to in his petition dated 20-5-54'. Thereafter, a show cause notice was again served upon the petitioner and an order of dismissal has been subsequently made. This Rule was' issued on 22-12-1954 upon the opposite parties to show cause why a writ in the nature of Mandamus and/or Certiorari should not issue, directing them not to give effect to the order dated 1-7-1954 or 15-7-1954. The alleged order of 15-7-1954 is a communication by the Executive Engineer, Canals Division, to the S. D. O. Irrigation, Calcutta Canals Sub-Division. The operative portion is as follows:
'You are informed that Sri Probodh Chandra Ghose Dastidar, Sub-Divisional Clerk, Calcutta Canals Sub-Division, was under suspension before the order of his discharge was issued. As the order of discharge has been set aside, Sri Ghose Dastidar is now treated as remaining under suspension and he is entitled to get the subsistence allowance 'etc. from 23-2-53 which he drew just before' the order of his discharge.'
3. It will thus appear that in accordance with the order dated 1-7-1954 the petitioner was to be treated as under suspension from 23-2-1953 when he was originally discharged from service, which order of dismissal has subsequently been found to be illegal and set aside. In the communication dated 15-7-1954 the position is taken that the order of discharge having been set aside, the original order of suspension remained. Therefore, the short point is as to whether if an order imposing a penalty is set aside, then was it necessary to pass a further order of suspension, or whether the original order of suspension continues to be in operation. It is argued that an order which is found to be illegal is no order in the eye of law and therefore the original order of suspension, cannot be affected by such an illegal order. The point however has now been set at rest by a judgment of the Supreme Court. - 'Omprokash Gupta v. State of Uttar Pradesh', : (1956)ILLJ1SC (B). In that case, there were departmental proceedings and an order of suspension pending the proceedings. This was followed by an order of dismissal, wtoich was subsequently found to be Illegal and set aside. The question arose as to whether the original suspension order continued to existe. '''The learned Attorney-General advanced the very same argument that has been advanced before me now, namely, that in view of the decision that the dismissal was illegal, the order of dismissal must be regarded as a nullity and non-existent in the eye of law. Consequently, the order of suspension remained operative.
4. Imam J. said as follows :
'The order of suspension made against theappellant was clearly one made pending an enquiry. It certainly was not a penalty imposedafter an enquiry. As the result of the enquiryan order of dismissal by way of penalty had beenpassed against the appellant. With that order,the order of suspension, lapsed. The order of dismissal replaced the order of suspension which thenceased to exist. That clearly was the position between the Government of the United Provincesand the appellant. The subsequent declaration bya Civil Court that the order of dismissal wasillegal could not revive an order of suspensionwhich did not exist.'
5. This completely decides the point and is) binding upon me. The learned Additional Gov- eminent Pleader argues that there Is a distinction between 'Omprokash's case (B)', and the present one, inasmuch as, the order of suspension in that case was pending the departmental proceedings, whereas when the order of suspension was passed herein, the departmental enquiry had not been initiated. In my opinion there is no difference. If, an order of suspension is made by way of penalty that is one thing. But an order of suspension in contemplation of a departmental enquiry is not different from an order of suspension during a departmental enquiry. When the departmental enquiry has been initiated there is no longer any distinction. The positon therefore is that the order of suspension passed on 27-7-1949 had merged in the order of discharge passed on 23-2-1953, which order was set aside by me on 10-5-1954. In view of the Supreme Court decision it is no longer possible to rely on the original order of suspension, if the order dated 1-7-1954 be considered as a fresh order of suspension, it is bad because it seeks to give effect to it retrospectively. It has now been held by the court of appeal - 'Hemanta Kumar Bhatta- charjee v. S. N. Mukherjee', : AIR1954Cal340 (C), that no such order of suspension with, retrospective effect can be passed. Therefore, the orders dated 1-7-1954 and 15-7-1954, cannot be supported. This however does not in any way affect the dismissal order subsequently passed against the petitioner. The petitioner has not challenged that order. While therefore, that order remains, the orders of suspension contained in the communication dated 1-7-1954 and 15-7-1954 cannot remain and a writ in the nature of certiorari must issue quashing them and a writ in the nature of Mandamus is also issued directing the respondents not to give effect to them.
6. The Rule is accordingly made absolute tothe extent mentioned above. There will howeverbe no order as to costs.