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HIGH COURT OF CALCUTTA
Sinha
HEMANTA KUMAR BHATTACHARJEE - Appellant
Versus
UNION OF INDIA - Respondent
Civil Revn. 2974 Of 1956
Decided On : SEPTEMBER 9, 1957
SUSPENSION - POSTAL DEPARTMENT EMPLOYEE - CRIMINAL CHARGES - JURISDICTION OF SPECIAL COURT - EXPIRY OF ORDINANCE - EFFECT ON SUSPENSION ORDER - WRIT OF MANDAMUS ISSUED TO FORBEAR FROM TREATING PETITIONER AS UNDER SUSPENSION AFTER EXPIRY OF ORDINANCE - [RULE 3, APPENDIX 3 OF THE FUNDAMENTAL RULES, VOLUME II]
Fact of the Case:
Petitioner, a Postal Department employee, was arrested on charges under Sections 261, 262, and 409 IPC read with Section 5(2) of the Prevention of Corruption Act. He was suspended on 5-9-1950 and discharged on 13-10-1950. On 16-1-1951, he was resummoned on the same charges. The case was allotted to a Special Court under the West Bengal Criminal Law Amendment Special Courts Act, 1949. The High Court quashed the proceedings in the Special Court, holding Section 4(1) of the Act ultra vires the Constitution. The petitioner was reinstated as a clerk with effect from 13-10-1950 and placed under suspension again with effect from 16-1-1951. On 9-4-1952, the West Bengal Government promulgated Ordinance VIII of 1952, amending the Special Courts Act. The petitioner's case was allotted to a Special Judge under the Ordinance. The Ordinance expired on 28-7-1952 and was replaced by Act XII of 1952, which did not contain a continuance clause. The High Court held that proceedings commenced under the Ordinance could not continue beyond 29-7-1952. The petitioner was discharged by the Special Judge on 22-2-1956, who held that he had no jurisdiction. The Chief Presidency Magistrate, Calcutta, directed the issuance of process against the petitioner, but the High Court quashed the proceedings, holding that the Chief Presidency Magistrate's Court had ceased to have jurisdiction.
Finding of the Court:
The High Court held that no criminal charge or proceedings based thereon were pending against the petitioner after 29-7-1952, either before the Chief Presidency Magistrate, Calcutta, or any Special Court. The suspension order dated 29-4-1952, which ordered retrospective reinstatement from 13-10-1950, was bad. Retrospective suspension and retrospective reinstatement are not permissible under the prevailing circumstances and rules.
Issues: 1. Whether any criminal charge or proceedings based thereon were pending against the petitioner after 29-7-1952? 2. Whether the suspension order dated 29-4-1952, which ordered retrospective reinstatement from 13-10-1950, was valid?
Ratio Decidendi: 1. The High Court held that the petitioner's case could not be allotted to either Mr. J. C. Lodh or Mr. B. C. Ghose, the Special Judges. The divisional bench judgment of Lahiri and Guha, JJ. dated 24-3-1953 in Rev. Case No. 591 of 1952, however, decided that Mr. J. C. Lodh had jurisdiction to try the case. But the Ordinance No. VIII of 1952, having expired on 29-7-1952 and there being no continuance Clause in Act XII of 1952, no proceeding commenced under that ordinance could be in force beyond 29-7-1952. Mr. B. C. Ghose held on 22-2-1956, that as the proceedings against the petitioner was pending in a Court other than a Special Court on 9-4-1952, the West Bengal Criminal Law Amendment Act of 1949 as amended had no application, and the matter was still pending before the Chief Presidency Magistrate, Calcutta and he had himself no jurisdiction. The divisional bench judgment of Das Gupta and Guha, JJ. dated 19-12-1956, in Cr. Rev. No. 38 of 1956, held that the judgment dated 24-3-53 in Rev. No. 591 of 1952 having decided that Mr. J. C. Lodh had jurisdiction at some point of time, it must be held that the Chief Presidency Magistrate's Court had ceased to have jurisdiction. Therefore, no proceeding can be said to be pending in a competent Court against the petitioner after 29-7-1952. 2. The High Court held that retrospective suspension and retrospective reinstatement are not permissible under the prevailing circumstances and rules. A post is held by him who actually holds it and works in it. There is no provision anywhere about any notional holding of posts.
Final Decision: The High Court issued a writ of mandamus directing the respondents to forbear from treating the petitioner as being under suspension after 29-7-1952 and set aside and quashed all orders of suspension to the contrary effect.
( 1 ) THE facts in this case are briefly as follows: The petitioner Hemanta Kumar Bhattacharjee, was employed in the Postal Department as Sub-Post Master of the Mission Row-Post Office. On 2-9-1950, he was arrested on a charge under Sections 261, 262 and 409 I. P. C. . read with Section 5 (2) of the Prevention of Corruption Act. On 5-9-1950, he was suspended, with effect from 2-9-1950. He was sent up tor trial before the Chief Presidency Magistrate, Calcutta who discharged him on 13-10-1950. On 16-1-1951 he was resummoned on the identical charges by the Chief Presidency Magistrate. By a notification of the West Bengal Government dated 1-2-1951, the case of the petitioner was allotted to the Court of a Special Judge, Mr. S. C. Dutta Gupta under West Bengal Act XXI of 1949. The petitioner thereupon moved the High Court in Criminal Misc. Revn. no. 283 of 1951 and on 4-4-1952, a special bench of this Court, quashed the proceedings in the Court of the Special Judge, being of the opinion that Section 4 (1) of West Bengal Act XXI of 1949, was ultra vires the Constitution, and directed that the accused was to be held as an under-trial prisoner. Next, the petitioner moved this Court against the order of suspension dated 5-9-1950 (matter No. 215 of 1951 ). On 13-3-1952 Bose, J. held that as soon as the petitioner was discharged on 13-10-1950, the suspension order had spent its force. The learned Judge made the rule absolute, directing the respondents, to forbear from giving effect to the order of suspension (Hemanta Kumar Bhattacharjee v. N. N. Sen Gupta ). Thereupon, on 29-4-1952, two separate memorandums were issued to the petitioner by the Superintendent of Post Offices, South Calcutta (Respondent No. 4 ).
( 2 ) BY one of them, the petitioner was released from suspension and re-instated as a clerk of the Park Street town Sub-office with effect from 13-10-1950. By the other, he was placed under suspension with effect from 16-1- 1951, pending investigation into his conduct. Subsequently on 9-5-1952 the memorandums were modified to certain extent as regards pay, allowances etc. On 9-4-1952 the Government of West Bengal promulgated Ordinance No. VIII of 1952, amending the West Bengal Criminal Law Amendment Special Courts Act, 1949. On 11-6-1952, Mr. J. C. Lodh to whom the petitioner's case had been allotted, issued summons under Ordinance VIII of 1952, On 30-7-1952 the ordinance was replaced by Act XII of 1952. The petitioner moved the High Court in C. Rev. No. 591 of 1952. This matter came up before a division bench presided over by Lahiri, J. On 24-3-1953, the learned Judges held that the ordinance expired on 28-7-1952, and the Act No. XII of 1952, did not contain any continuance clause. It was therefore held that proceedings commenced tinder the Ordinance could not continue beyond 29-7-1962. The proceedings be- fore Mr. J. C. Lodh, were accordingly quashed. The learned Judges stated that it was not necessary for them to express any opinion as to whether any fresh proceedings could be started against the petitioner.
( 3 ) MEANWHILE, the petitioner had made an application to this Court under Article 226 of the Constitution, against the orders contained in the memorandum dated 29/4/1952 (matter No. 72 of 1952 ). This rule was discharged by Bose, J. on 2/1/1953, against which the petitioner preferred an appeal, being F. M. A. No. 40/53. On 11/8/1953, a divisional bench of this Court, presided over by Chakravartti, C. J. allowed the appeal. It was held that there could not be any such thing as a retrospective order of suspension. The application was allowed in part, and the respondent was directed to cancel forthwith his orders dated 29/4/1952, and 9/5/1952, so far as they purported to place the appellant under suspension during the period between 16/1/1951 and 28-4-1952, both inclusive, and to forbear from giving effect thereto. This is a reported case, Hemanta Kumar Bhattacharjee v. S. N. Mukherjee.
( 4 ) ON 5-9-1953, an or
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