Point of Law: Rights of a suspended employee to life and to a speedy trial qua a DE balanced with obligations - While suspending appellant, DA took care to notice both aspects of deemed suspension following custodial detention arising out of criminal charge, as also such suspension being in aid of DE.

JUDGMENT :

Subrata Talukdar, J:

1. Under challenge in this appeal is the common judgment and order dated 20th December 2019 of the Hon’ble Single Bench or, the Hon’ble First Bench, finally deciding the two writ petitions filed by the appellant being WP 96 of 2019 (WP-I) and WP 203 of 2019 (WP-II).

2. The Hon’ble First Bench, inter alia, held that the appellant was charge-sheeted by the Howrah Municipal Corporation (HMC) to face a Departmental Enquiry (DE) pertaining to possession of assets disproportionate to his known sources of income. The Hon’ble First Bench held that such a charge under the Prevention of Corruption Act, 1988 (for short the PC Act) pre-supposes an act or omission in relation to his employment and hence the Howrah Municipal Corporation was wholly and completely justified in commencing departmental proceedings, inter alia, by issuing the charge-sheet in question.

3. The Hon’ble Single Bench was also of the view that the judgment and order of a Hon’ble Division Bench of this Court In Re: Amit Biswas Vs. State of West Bengal and others as reported in 2007 (2) LLN 852 does not apply to the facts connected to the appellant, since the criminal charge In Re: Amit Biswas (supra), arose out of a matrimonial dispute connected to Section 498A of the Indian Penal Code (IPC) whereas, the charge against the appellant is under the PC Act.

4. Therefore, the Hon’ble Single Bench came to the finding that in view of the distinct nature of the two charges(supra), the HMC was well within its rights as the employer to departmentally proceed against the appellant/ the writ petitioner.

WP-II stood thus dismissed.

5. In view of the dismissal of WP-II, the Hon’ble Single Bench also dismissed WP-I by directing the HMC to conclude the DE as expeditiously as possible but, not later than a period of six months from the date of communication of a copy of its order (dated the 20th of December, 2019).

6. While directing as above, the Hon’ble Single Bench recognized the accepted jurisprudence relating to Service Law that a delinquent (viz. the appellant) cannot be kept under suspension indefinitely. However, the Hon’ble Single Bench was of the view that since the rationale behind continuing and concluding the DE against the appellant was sustained by the judgment and order dismissing WP-II, the analogous writ petition challenging the suspension of the appellant/ the writ petitioner must yield to the requirement of concluding the DE.

7. The Hon’ble Single Bench took the further view that the prejudice complained of by the appellant/ the writ petitioner arising out of his continuous suspension from service stood partially ameliorated in view of the raise in his subsistence allowance from fifty to seventy percent by reason of the West Bengal Municipal Employees’ (Classification, Control, Appeal and Conduct) Rules, 2010 (for short the 2010 Rules).

8. Thus, WP-I stood also dismissed.

9. Mr. Pratik Dhar, Ld. Senior Counsel appearing for the appellant, argues purely on the point of the legality of continuing the appellant’s suspension for long without initiating a departmental proceeding, for consideration by this Appellate Bench. The crux of Mr. Dhar’s submissions center around the ratio of the Hon’ble Supreme Court’s Judgment In Re: Ajay Kumar Choudhary Vs. Union of India and another as reported in 2015 (7) SCC 291.

10. It is submitted by Ld. Senior Counsel that the law qua suspension is now trite that the subsistence of a suspension order shall not extend beyond three months of the date of its imposition, if, within this period the Memorandum of Charges/ Charge-Sheet (for short MOC/CS) is not served on the delinquent officer/ employee. However, in the event the MOC/CS has been served within the said period of three months, the suspension can only be extended by passing a reasoned order.

11. Ld. Senior Counsel submits that the appellant is facing a criminal proceeding in connection with Anti-Corruption Branch(ACB) Case No. 4 of 2015 dated the 14th of August 2