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HIGH COURT OF ORISSA
K. Ahmad, C. J. And R. K. Das, J.
SAILA BEHARI CHATTERJEE - Appellant
Versus
STATE OF ORISSA - Respondent
First Appeal 159 Of 1958
Decided On : SEPTEMBER 23, 1965
SUSPENSION - VALIDITY - ORDER OF SUSPENSION PASSED BY CHIEF SECRETARY - COMPETENCY - INTERIM SUSPENSION - DISTINCTION FROM SUSPENSION AS PENALTY - POWER TO PASS INTERIM SUSPENSION - RULES OF BUSINESS - PRESUMPTION UNDER SECTION 114(E) OF EVIDENCE ACT - TELEGRAPH MESSAGE - PRESUMPTION UNDER SECTION 88 OF EVIDENCE ACT - APPLICATION TO WIRELESS MESSAGE - DEPARTMENTAL PROCEEDINGS - POWER TO START DEPARTMENTAL PROCEEDINGS IRRESPECTIVE OF RESULT OF CRIMINAL CASE - ORDER OF SUSPENSION - OPERATION AND EFFECT - SUIT FOR DECLARATION OF INVALIDITY OF SUSPENSION ORDER - DISMISSAL.
Fact of the Case:
The appellant, a Deputy Collector, was placed under suspension on 28-7-49 by the State Government. A departmental enquiry was initiated against him on charges of corruption and other misconduct. The appellant was ultimately discharged from service on 27-2-54. He filed a suit challenging the validity of the order of suspension and seeking various reliefs, including reinstatement and payment of arrears of salary.
Finding of the Court:
The court held that the order of suspension was not ultra vires or invalid and that it remained in force from 28-7-49 till the date of discharge of the appellant on 27-2-54. The court also held that the suit of the appellant was not maintainable and dismissed the same.
Issues: 1. Whether the order of suspension passed on the appellant was valid and legal? 2. Whether the appellant was entitled to any relief on account of the order of suspension?
Ratio Decidendi: 1. The court held that the order of suspension was passed by the Chief Secretary, who was competent to pass an interim order of suspension. The court relied on the Rules of Business framed under Section 59(3) of the Government of India Act, 1935, which vested the Chief Secretary with general powers to pass an order of suspension on behalf of the Government as well as the Governor. 2. The court also held that the order of suspension was not ultra vires or invalid, as it was passed as an interim measure and not as a penalty. The court distinguished between suspension as a penalty and suspension as an interim measure, holding that the latter is not subject to the same restrictions as the former. 3. The court further held that the order of suspension did not lapse on the termination of the criminal proceedings against the appellant, as it was not solely related to the criminal case but also to the departmental proceedings. The court noted that the departmental proceedings were drawn up after the termination of the criminal proceedings and that the charges against the appellant in the departmental proceedings covered a number of items which were covered by the criminal case.
Final Decision: The court dismissed the appellant's suit, holding that the order of suspension was not ultra vires or invalid and that the appellant was not entitled to any relief on account of the order of suspension.
DAS, J.
( 1 ) THIS appeal has been remanded by the Supreme Court for hearing on the limited question whether the order of suspension passed on the appellant on 28-749 by the State Government is invalid and ultra vires and if the appellant is entitled to any relief on this count.
( 2 ) THE appellant was appointed as a Sub-Deputy Collector on 11-12-39 by the government of Orissa. He was promoted to the rank of a Deputy Collector on 8-246 and was posted as the Sub-Divisional Officer and Special Assistant Agent on 4-548 at Koraput. On 18-10-48 he was transferred to Sundargarh and held the post of a Sub-Divisional Officer. He was confirmed as Deputy Collector with effect from 1-1-1949.
( 3 ) A case under Section 406, I. P. C. was pending in his Court against one hitakrushna Sahu. It was alleged that the plaintiff officer demanded bribe from one Gopal Sahu, uncle of Hatakrushna. On 27-7-49, the Additional District magistrate, Sundargarh decided to lay a trap against the plaintiff and secured the assistance of Gopal Sahu for the purpose. Gopal was given two marked hundred-rupee currency notes to be delivered to the plaintiff. The trap was laid on the night of 27-7-49. As soon as the money was handed over by Gopal to the plaintiff, the additional District Magistrate and some police officers entered the house of the appellant and seized the two marked hundred-rupee notes along with a large sum of money found from different places in the house of the plaintiff. A sum of Rs. 1,074 was found from an open drawer in a room of the house and Rs. 6,600 in shape of currency notes were found in an almirah. Immediately thereafter the appellant was put under suspension on 28-7-49. A case under Section 161 I. P. C. (C. R. Case No. 1/268/115 of 1949) was started against the appellant and the appellant was arrested on 29-7-49. In the said C. R. Case the appellant was convicted by the trial court, but on appeal, the learned Sessions Judge by his judgment dated 24-5-50 acquitted the appellant holding that
"the evidence adduced by the prosecution did not completely exclude the possibility of the theory of planting, though there was enough room for suspicion against the conduct of the appellant. "
( 4 ) ANOTHER case under Section 5 (2) of the Prevention of Corruption Act (II of 1947) was also started against the appellant mainly on the basis of the recovery of a cash of Rs. 7,671 from the house of the plaintiff, but for insufficient evidence final report was submitted by the Police on 9-6-1950 and ultimately this sum was returned to the plaintiff. After termination of the aforesaid two cases, the government started departmental proceedings (Ext. 12) on 6-12-1950 with eight charges framed against him. The charges included, amongst others, acceptance of illegal gratification as also recovery of large sums of money amounting to Rs. 7,674 made on search of the house of the appellant on 27-9-1949. The plaintiff submitted his explanation. The Government directed the District Magistrate, sundargarh, to make a departmental enquiry in respect of the various charges levelled against the officer. In the said departmental enquiry, some witnesses were examined, cross-examined and the officer was also assisted by some lawyers. On 5-12-62 the District Magistrate submitted his findings on all the charges. Government though differed from the Dt. Magistrate in respect of his findings on some of the charges, they tentatively decided to dismiss the plaintiff from Government Service, Accordingly on 19-2-53 the Government served a notice on him under Article 311 (2) of the Constitution calling upon him to show cause why he would not be dismissed from service. The plaintiff submitted his explanation which was not accepted by the Government. After consultation with the Public Service Commission, the Government discharged the plaintiff from service on 27-2-54. Thereafter the plaintiff made an appeal to the Governor but the same was rejected on 3-1-55. Thereafter the plaintiff-
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