1. This is an application under Article 226 of the Constitution for an appropriate writ directing the respondents to forbear from giving effect to an order of suspension dated 5-9-1950, and also for cancellation of the order.
2. The petitioner was a Sub-postmaster at Mission Row Post Office, Calcutta. On 2-9-1950, the petitioner along with some other clerks were arrested by the police in connection with an offence of using of used-up postage stamps while on duty at the said Post Office. On the same date the petitioner was relieved of his duties under an order of the Superintendent of Post Offices, South Calcutta Division, who is respondent 1 in this application. By a letter dated 5-9-1950, the petitioner was placed under suspension with effect from the afternoon of 2-9-1950, as he was arrested on charges under Sections 261, 262 and 420, I. P. C., Section 5 (2) of Act 2 of 1947, and for conspiracy under Section 120, I.P.C. This order of suspension as contained in this letter was served on the petitioner on 7-9-50.
3. The petitioner was thereafter sent up for trial on these charges before the Chief Presidency Magistrate, Calcutta. On 5-9-1950, the petitioner was produced before the Magistrate with the police report, but he was released on bail, and the case was adjourned till 19-9-1950; but as no report was received from the investigating officer on that date the matter was again adjourned till 13-10-1950. On 13-10-1950, there being no prayer for remand, the petitioner was discharged by the Chief Presidency Magistrate. On the very next day, that is, October 14, 1950, the petitioner made an application for return of a sum of Rs. 1,700/- cash and his postal savings bank pass-book which had been seized by the police on the day he was arrested, and the Chief Presidency Magistrate upon considering this application and the investigating officer's report thereon ordered the return of the said cash and the bank pass-book, and also discharged the petitioner from the bond which he had executed with regard to his furniture. But although the petitioner was discharged on 13-10-1950, he was still kept under suspension by virtue of the order which was made on 5-9-1950.
4. On or about 16-1-1951, the petitioner was, however, summoned by the Chief Presidency Magistrate on a complaint made by the police under Sections 262, 409, 120B and other sections of the Indian Penal Code. This case was ultimately allotted to the Special Judge's Court by a notification of the West Bengal Government issued on 1-2-1951. Thereupon the petitioner moved this Court challenging the order of allotment as illegal, and it appears that this Court has issued a rule in that application and the said matter is still pending disposal.
5. The petitioner challenges the order of suspension as illegal or at any rate as having ceased to be in force after 13-10-1950, when he was discharged by the Chief Presidency Magistrate.
6. The only point which has been urged by learned counsel for the petitioner is that the order of suspension dated 5-9-1950, has ceased to be in force after October 13, and the continuance of the petitioner under suspension since that date is illegal.
7. Regulation 17 of the General Regulations contained in Posts and Telegraphs Manual, Vol. II, is as follows:
'An employee whose conduct is undergoing investigation on a serious charge may be placed under suspension pending the result of enquiries into his alleged misconduct. It is very important that cases of this kind should be promptly disposed of.' Regulation 21 provides in Clause (e) thereof: 'No one should be suspended unless (i) he wilfully and obstinately refuses to carry out an order, (ii) during the course of an enquiry his retention in his appointment would hamper or frustrate such enquiry, (iii) he is in police custody or undergoing imprisonment, (iv) he is charged with an offence of a nature which, if proved against him, would ordinarily result in his dismissal.'
8. There are certain notes appended to thisRule 21 and the relevant note, being Note 3,may be set out hereunder:
'A servant of Government against whom acriminal charge or a proceeding for arrest fordebt is pending should also be placed undersuspension by the issue of a specific orderto this effect during periods when he is notactually detained in custody or imprisoned(as e.g. while released on bail), if the chargemade or proceeding taken against him isconnected with his position as a Governmentservant or is likely to embarrass him in thedischarge of his duties as such or involvesmoral turpitude.'
It has been contended by Mr. A. N. Roy, learned counsel appearing for the respondents, that as an investigation into the case of the petitioner was pending during the relevant period, the order of suspension which was made on 5-9-1950 has not spent its force and the petitioner has been kept validly under suspension fay virtue of the order which was passed on 5th September. He relies on Rule 17 in support of his contention.
9. The only material in support of the fact that an investigation was proceeding during the material period is to be found in the affidavit of Sailendra Nath Banerjee, Superintendent of Post Offices, South Calcutta Division. In para. 4 of the affidavit it is stated
'that the petitioner was produced before the Chief Presidency Magistrate on 13-10-1950 and it was not prayed by the police authorities that he should be remanded. The learned Chief Presidency Magistrate thereupon discharged the petitioner from custody. The case against the petitioner, however, continued to be under police investigation.'
This statement is, as appears from the verification clause, based - upon information received from the records of the deponent's office, but no records have been produced before this Court to show that this investigation was, as a matter of fact being carried on during the period between 13-10-1950 and 16-1-1951 when the fresh proceedings were initiated against the petitioner before the Chief Presidency Magistrate on identical charges for which he was arrested and sent up for trial on or about5-9-1950. Mr. Roy has placed before me a petition of the Superintendent of Police, one Mr. B. C. Dutt, which is affirmed on 21-11-1950 in which it is stated that an investigation is still proceeding. It does not appear, however, from that petition as to when such investigation, was started. The only thing that is clear from that petition is that some investigation was being carried on at or about the time when that petition was affirmed and for some time prior to that date. Therefore it appears to me that there are not sufficient materials to justify me in holding that an investigation was being conducted during the whole of the period between 13-10-1950 and 16-1-1951 when fresh proceedings against the petitioner were started in the Court of the Chief Presidency Magistrate.
10. It has been contended by Mr. K. K. Basu, learned counsel appearing for the petitioner that the investigation referred to in Rule 17 has reference only to departmental investigation. There is nothing in the Rule, however, to limit it to the case of only disciplinary or, departmental proceedings, and I do not think that I shall be justified in putting such a narrow construction as is contended for by Mr. Basu. It appears to me that the 'investigation' in that Rule embraces within its scope 'any investigation' whether it is being conducted in a Court or by the police 0r by the officers of the department concerned. It is clear, however, from the Rules which I have quoted above that it is only when an investigation is actually pending that the employee whose conduct is being investigated can be kept under suspension. The Regn. 17 specifically says that an employee may be placed under suspension only pending the result of the enquiries into his alleged misconduct. So it appears to me that the pendency of the enquiry is a condition precedent to the employee being kept under suspension.
11. There is no doubt that in the present case the foundation of the order of suspension, of the petitioner was the fact of his arrest, under the charges under several sections of the Indian Penal Code; in other words, the order of suspension was made on the basis of Rule 21 (e) (iii), and although in R, 21 there are several other grounds specified, upon which an employee can be suspended, the order of the 5th September makes it clear that no other ground was availed of for placing the petitioner under suspension.
12. That being so, it is clear, upon the construction of the relevant Rules in question, that the order of suspension dated 5-9-1950 spent its force the moment the petitioner was discharged on 13-10-1950. It is open to the respondents to place the petitioner again under suspension by a fresh order made for the purpose if such a course is necessary, but in the absence of any fresh order, I am of the view that the continuance of the petitioner under suspension since 13-10-1950 is not warranted. It is clear that no fresh order has yet been passed and the order of suspension having become exhausted, the contention of the petitioner that the opposite parties have no right to keep him under suspension since 13-10-1950 must be accepted.
13. In my view this petition should succeed in part and the Rule is made absolute to the extent that the respondents are directed 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.
14. I make no order as to costs.