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2007 Supreme(Cal) 92
High Court Of Calcutta
Bhaskar Bhattacharya, ACJ. And Kishore Kumar Prasad, J.
AMIT BISWAS - Appellant
Versus
STATE OF WEST BENGAL - Respondent
WPST 701 Of 2006
Decided On : 02/14/2007
BISWARUP BISWAS, KALLOL BASU, KAMALESH BHATTACHARJI
Departmental proceedings can only be initiated against an employee for an offence that is related to the employee's service or involves moral turpitude. An employee cannot be kept under suspension indefinitely till the disposal of criminal proceedings.
Headnote:
SUSPENSION - PUBLIC SERVANT - SECTION 7 OF THE WEST BENGAL SERVICE (C. C. AND A.) RULES, 1971 - Whether the employer can keep the employee under suspension indefinitely till the disposal of criminal proceedings - Held, no.
Fact of the Case:
The employee was arrested in connection with a criminal case under section 498A of the Indian Penal Code and was released on bail. He was subsequently suspended from service with retrospective effect from the date of his arrest. The employee challenged the suspension order before the Tribunal, which directed the employer to initiate and complete departmental proceedings against the employee within a period of one year from the date of communication of the order. The Tribunal further directed that in case the departmental proceedings were not completed within one year, the order of suspension should stand quashed.
Finding of the Court:
The Tribunal erred in law in directing the employer to initiate departmental proceedings against the employee, as the offence alleged was not related to the employee's service. The Tribunal also erred in not considering whether there were exceptional reasons for keeping the employee under suspension till the disposal of the criminal proceedings.
Issues: 1. Whether the employer can initiate departmental proceedings against the employee for an offence that is not related to the employee's service? 2. Whether the employee can be kept under suspension indefinitely till the disposal of criminal proceedings?
Ratio Decidendi: 1. Departmental proceedings can only be initiated against an employee for an offence that is related to the employee's service or involves moral turpitude. 2. An employee cannot be kept under suspension indefinitely till the disposal of criminal proceedings. The employer must consider whether there are exceptional reasons for keeping the employee under suspension, such as the gravity of the offence alleged or the likelihood that the employee will interfere with the investigation or trial.
Final Decision: The order of the Tribunal directing the employer to initiate departmental proceedings against the employee is set aside. The employer is directed to reconsider whether the materials so far gathered prima facie make out a case involving moral turpitude and that it is a fit case where the employee should be kept under suspension. Such decision should be taken within one month from the date of communication of this order after giving the employee an opportunity of making submission on prima facie merit of the allegation.
( 2 ) BEING dissatisfied, the employee has come up before us with the present writ application.
( 3 ) THE following facts are not in dispute: the writ petitioner is an employee under the State Government and was arrested in connection with a criminal case under section 498a of the indian Penal Code on 26th December, 2004. He was, however, released on bail on 10th January, 2005 and subsequently, joined his duty on 22nd February, 2005 after filing an application for medical leave.
( 4 ) FROM 22nd February, 2005 till 4th April, 2005 the petitioner performed his official duty under the respondents, but on 4th April, 2005 he was served with an order of suspension on the ground that as the petitioner was arrested by police on 26th December, 2004 in Kotwali (Krishnagar. Nadia) Police Station case No. 588 of 2004 under section 498a read with section 34 of the Indian penal Code and was detained in jail custody after 10th January, 2005 as per report of the said police station, the petitioner should be put under suspension in terms of Rules 7 (l) (c) and 7 (3) of the West Bengal Service (C. C. and A.) Rules, 1971 with retrospective effect from 26th December, 2004 until further orders, pending the issue of final judgment from the Court of Law.
( 5 ) IN the past, the writ petitioner challenged the aforesaid order of suspension by filing another application under section 19 of the Act before the Tribunal and the Tribunal by order dated 4th October, 2005 disposed of the same by directing the employer to treat the said application together with all annexures as representation and to dispose of the same in accordance with law by passing a reasoned order within a period of three months from the date of communication of such order with further direction that after a decision is taken, the same should be communicated to the writ petitioner within three weeks thereafter.
( 6 ) PURSUANT to such order passed by the Tribunal, the employer by order dated 3rd January, 2006 decided that the action previously taken was strictly based on facts and circumstances of the case and in accordance with law and that there was no scope to consider the withdrawal of the order of suspension till the final decision of Kotwali Police Station Case No. 588 of 2004.
( 7 ) AFTER going through the entire order passed by the employer dated 3rd january, 2006, we find that the employer merely narrated the incident earlier occurred regarding arrest of the writ petitioner and subsequent application for medical leave and then came to the aforesaid conclusion.
( 8 ) HOWEVER, being dissatisfied with the aforesaid order dated 3rd January, 2006 passed by the employer, the writ petitioner filed another application under section 19 of the Act before the Tribunal and the Tribunal by order dated 10th March, 2006 disposed of such application by directing the employer to make review of the suspension order within a period of three months from the date of communication of that order with further direction that if there was any further reason to keep the writ petitioner under suspension any more in the changed situation, it should pass appropriate order in accordance with law after giving all admissible benefits to the writ petitione
