B.N. Banerjee, J.
1. The petitioner, Benoy Kamar Moulik, was at first appointed as a temporary clerk in the General Post Office, Calcutta, and was later on made permanent. On 4 May 1959, respondent 2, Deputy Presidency Postmaster, Calcutta, suspended the petitioner, on the ground that a criminal offence, alleged to have been committed by the petitioner, was under Investigation, The order of suspension is herein below set out:
Whereas a case against Benoy Kumar Moulik, clerk, Treasury Department, Calcutta General Post Office, in respect of a criminal offence is under investigation;
Now, therefore, the undersigned, in exercise of the powers conferred by Sub-rule (1) of Rule 12 of the Central Civil (?) Services (Classification, Control and Appeal) Rules, 1967, hereby places the said Benoy Kumar Moulik under suspension with effect from the afternoon of 4 May 1959.
2. It appears from the order sheet of the Chief Presidency Magistrate, annexed to the petition, that the criminal case against the petitioner underwent a long and ineffective investigation and ultimately, on 5 March 1960 the learned Chief Presidency Magistrate discharged the accused-petitioner with the following observation:
Seen the police report. I remain un-convinced. In any event, it is not proper for me to hold the accused any more. Discharged.
Before the accused-petitioner was discharged by the learned Chief Presidency Magistrate, the respondent-Presidency Postmaster had caused service of a charge sheet on the petitioner, on 6 January 1960, for the purpose of starting disciplinary action against the petitioner, under the provisions of Rule 15 of the Central Civil Services (Classification. Control and Appeal) Rules, 1957. The charges of misconduct, as in the aforementioned charge-sheet, were more or less identical in character with the criminal charges for which the police was conducting investigation against the petitioner. There was little progress made in the departmental proceeding until the time when the petitioner was discharged by the criminal Court. It is however, stated in the affidavit-in-opposition that as a result of the disciplinary action, the petitioner was ultimately dismissed from service. I am not, however, concerned with the order of dismissal of the petitioner. if any has been made against him, because that order has not yet been challenged before this Court by the petitioner.
3. The grievance made by the petitioner in this rule, is that the order of suspension, made on 4 May 1959, came to an end with his discharge by the criminal Court, on 5 March 1960, and since the respondents did not suspend him afresh pending the departmental action, he should not have been kept under suspension but should have been allowed to resume his duties. The farther grievance made by the petitioner is that he is being paid the bare subsistence allowance on the theory that the order of suspension on him was still in operation. What was more, the petitioner alleged that by an order, dated 29 April 1960, there was a decrease of 25 per cent made on the subsistence allowance, originally sanctioned to the petitioner pending suspension.
4. Falling to induce the respondents to remove the ban of suspension on him, the petitioner moved this Court, under Article 226 of the Constitution, praying for a writ of certiorari for the quashing of the order of suspension and the order decreasing the subsistence allowance and also praying for a mandate on the respondents not to give effect to the two impugned orders and obtained this rule.
5. Before I go into the contention raised on behalf of the petitioner, It is necessary for me to refer to certain rules governing suspension of employees. Rule 12 of the Central Civil Services (Classification, Control and Appeal; Rules, 1957, provides as follows:
12. Suspension.-(1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the President in that behalf may place a Government servant under suspension:
(a) where a disciplinary proceeding against him is contemplated or is pending, or
(b) where a case against him in respect of any criminal offence is under investigation or trial:
Provided that except in the case of an order of suspension made by the Comptroller and Auditor-General in regard to a member of the Indian Audit and Accounts Service, where the order of suspension is made by An authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours, shall be deemed to have been suspended with effect from the date of detention, by an order of the appointing authority and shall remain under suspension until further orders.
(3) Where a penalty of dismissal, removal or compulsory retirement from service, imposed upon a Government servant under suspension, is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his, suspension shall be deemed to have continued in force on and from date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
(5) An order of suspension made or deemed to have been made under this rule may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
6. The other rules to which I need refer are Rules 17, 20 and 130 of the rules in Posts and Telegraphs Manual, Vol. II (3rd Edn.). The said rules read as follows:
17. 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.
20. Employees placed under suspension are permitted to draw full pay up to the date of being relieved but It is necessary that the immediate superior of such an employee should make arrangements for his relief at the same time as the suspension. Such relief must be conducted strictly in accordance with the rules regarding transfer of charge in the Posts and Telegraphs Manual, Vol. IV.
130. In cognizable cases, it should be remembered that, when information has once been given to the police under Section 154 of the Criminal Procedure Code, the action to be taken in the matter will be controlled by the police. The local officer of the department should, however, keep in the close personal touch with the progress of the enquiry and should render the police every possible assistance. There are however, cognizable cases, in which a prosecution may not be desirable and the orders of the Superintendents of Post Offices or Railway Mail Service, Presidency Postmasters, first-class Postmasters, Divisional Engineers, Telegraphs, Sub-divisional Officers, Telegraphs, or of officers of and above the rank of Deputy Superintendents in charge of departmental telegraph offices, as the case may be, should be obtained before information is laid against the offender except in cases of urgency where there is reason to believe that the offender will abscond or in which immediate action is necessary in order to secure evidence.
7. Regard being had to the language of the order of suspension, hereinbefore quoted, there is no doubt that the order of suspension of the petitioner had been made under the provisions of Rule 12(1)(6) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, pending investigation, or trial of criminal offence said to have been committed by the petitioner. That investigation came to a close when the petitioner was discharged by the learned Chief Presidency Magistrate, on 5 March 1960. At least, there was a curtain drawn, on the first chapter of the investigation, thereby. The order of suspension, which had been made on the petitioner, on 4 May 1959 spent Its force with the discharge of the petitioner by the learned Chief Presidency Magistrate, on 5 March 1960. Thereafter, the petitioner should not have been treated under suspension. This is the view which was taken by tills Court in the case of Hemanta Kumar v. N.N. Sen 56 C.W.N. 676, per Bose, J. (as the Chief Justice then was), and in Debdas Ganguly v. Director of Textiles 1963-I L.L.J. 135.
8. Mr. A.K. Bhattacharya, learned advocate for the respondents, however raised a twofold contention trying to distinguish the aforementioned two decisions in the facts and circumstances of this case. He contended in the first place, that before the petitioner was discharged by the learned Chief Presidency Magistrate, departmental punitive proceedings had been started against the petitioner and the wording of the order of suspension was such as would apply to suspension both under Rules 12(1)(a) and 12(1)(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. He contended, in the next place, that police investigation was still going on against the petitioner, notwithstanding the order of discharge, dated 5 March 1960, and the suspension order must be deemed to be continuing so long as the investigation was going on.
9. In my opinion, the first branch of the argument of Mr. Bhattacharya is unworthy of being sustained. It appears from the wording of the order of suspension, dated 4 May 1959, that petitioner had been suspended on the ground that investigation was going on against the petitioner, for an alleged criminal offence. A departmental disciplinary action is concerned not with criminal offence but with misconduct. Departmental authorities have no power to punish an employee on a criminal charge, although such authorities may penalize an employee for misconduct on identical facts. The right to punish a citizen for crime is vested in the State, the right to penalize an employee for misconduct is in the employer, because of the existence of relationship of master and servant and also because the rules so provide in certain cases. Since the petitioner was suspended pending investigation into a criminal offence, the order of suspension has no relation to the departmental proceedings which was subsequently started. Since the petitioner was not suspended pending the departmental proceeding, the authorities cannot, in the departmental proceeding, take advantage of the order of suspension made against the petitioner pending investigation into a criminal offence alleged to have been committed by the petitioner. In the view that I take, I have to overrule the first branch of the contention advanced by Mr. Bhattacharya.
10. The second branch of the contention, of Mr. Bhattacharya is equally unsustainable. It may be, as is alleged in the affidavit-in-opposition there is a second police investigation still going on against the petitioner. Pending that investigation it is competent for the respondents to suspend the petitioner again, but the order of suspension, which lost its force with the order of discharge of the petitioner by the learned Chief Presidency, Magistrate, cannot be deemed to have acquired a new lease of life when the second police investigation started. For the reason given above, I overrule the second contention advanced by Mr. Bhattacharya. I need, however, clarify one point. Rule 12(2) of the Central Civil Services (Classification, Control and Appeal) Rules contemplates that a civil servant, detained in custody for more than forty-eight hours, shall be deemed to have been suspended with effect from date of detention and shall remain under suspension until further orders. Whether in such case, the suspension will end with the discharge or the acquittal of the accused, I do not decide in this rule, because the petitioner did not become suspended under Rule 12(2).
11. I do not realize how much the petitioner gains by the reason of this rule being made absolute, if he had been dismissed from service during the pendency, of this rule or at any time prior to that. I cannot command the respondents to take him back in service or to allow him to resume his duties, because the order of dismissal of the petitioner, if any, has not been challenged before this Court. That order must stand unless set aside. Therefore, all that I need observe is that after the discharge of the petitioner by the learned Chief Presidency Magistrate, on 5 March 1960, the petitioner is no longer under suspension and if he has not otherwise become disentitled to resume his service, he should be allowed to resume his duties by the respondents unless, of course, the respondents again suspend him during the pendency of the departmental investigation if, that departmental investigation has not yet come to an end.
12. This rule, therefore, succeeds to this limited extent that if the petitioner is still in service and if the petitioner be not again suspended by the respondents, there will be a direction on the respondents to allow him to resume his duties, because nothing in the impugned order of suspension, which has spent its force, debars the petitioner from doing so.
13. Let a mandate issue on the respondents accordingly.
14. I make no order as to costs.