1953 Supreme(Cal) 175

HIGH COURT OF CALCUTTA
CHAKRABARTI, LAHIRI
HEMANTA KUMAR BHATTACHARJEE - Appellant
Versus
S. N. MUKHERJEE - Respondent
Matter 72  Of  1952
Decided On : AUGUST 11, 1953

An order of suspension with retrospective effect is beyond the powers of the Government.

Headnote:

SUSPENSION - CENTRAL GOVERNMENT EMPLOYEE - RETROSPECTIVE EFFECT - POWER OF GOVERNMENT - INTERPRETATION OF RULES - MEANING OF SUSPENSION - RULE 2 OF SECTION 4 OF APPENDIX 3 TO THE FUNDAMENTAL RULES - SCOPE AND EFFECT - ORDER OF SUSPENSION WITH RETROSPECTIVE EFFECT - VALIDITY.

Fact of the Case:

The Appellant, an employee in the Posts and Telegraphs Department of the Government of India, was arrested on charges under Sections 261, 262, 263 and 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.

Finding of the Court:

The Court held that an order of suspension with retrospective effect was beyond the powers of the Respondent. The Court further held that Rule 2 of Section 4 of Appendix 3 to the Fundamental Rules did not confer power on the Government to suspend an employee with retrospective effect. The Court also held that the order of suspension, made on 29-4-1952, was valid and effective as on and from that date, but as purporting to cover the period from 16-1-1951 upto 28-4-1952, it was unwarranted by law and wholly invalid.

Issues: 1. Whether the Central Government has power to suspend one of its employees, belonging to a subordinate service, with effect from a prior date? 2. Whether Rule 2 of Section 4 of Appendix 3 to the Fundamental Rules confers power on the Government to suspend an employee with retrospective effect?

Ratio Decidendi: 1. The power to suspend carries 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. 2. Rule 2 of Section 4 of Appendix 3 to the Fundamental Rules does not confer power on the Government to suspend an employee with retrospective effect.

Final Decision: The appeal was 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.