Mihir Kumar Das vs State of West Bengal and Others

Chittatosh Mookerjee, J.—The petitioner was originally appointed temporarily until further orders as a Fourth G-ade Correspondence Clerk, Haringhata Diary Farm, under orders of the project Administrator and Co-crdinator and Ex-Officio Joint Secretary to the Govt. of West Bengal, Department of Animal Husbandary and Veterinary Services, (Project office). Subsequently his service was placed at the disposal of the Executive Engineer, Planning and Design Division, Public Works Department, Calcutta. The petitioner in this Rule has, inter alia, challenged the order No. 4143 ADMN/WFP/2E. 27/73-11 dated 1st December, 1975 of the Project Administrator, respondent No. 2, terminating his service with immediate effect in pursuance of the provisions of sub-rule (2) of Rule 34 (B) of the West Bengal Service Rules, Pt. 1.

The respondents have appeared in the matter but they have not filed any affidavit in opposition controverting the statements made in the writ petition.

Before I deal with the submissions made on behalf of the parties I may briefly refer to certain facts leading to the termination of the petitioner''s service by the impugned order. On 19th September, 1973 the petitioner along with others had been arrested at Saktinagar by the inspector in charge, P. S. Kotwali, Krishnagar. The petitioner continued to remain in detention till the time mentioned hereinafter. Since 20th Sept., 1973 he did not attend the office of the Executive Engineer, Planning and Design Division, Public Works Deptt., Calcutta. The Executive Engineer by a letter dated 18th October, 1973 had directed the petitioner to report for duty immediately. The petitioner''s father by a letter dated 31st October, 1973 had informed the Executive Engineer, Planning and Design Division that the petitioner was under detention in connection with a criminal case.

On 21st December, 1973 the project Administrator respondent no. 2 terminated the petitioner''s, service with immediate effect on the ground of his continued absence without reporting o the office ''his whereabouts''. The petitioner had obtained C.R. 598 (W) of 1974 against the said termination order dated 21st December, 1973. On 21st May, 1975 A. K. Mookerji, J. made the said Rule absolute and the order of termination dated 21st December, 1973 was quashed. A. K. Mookerji, J. in his judgment, inter alia, held that in terms of Rule 7 (3) of the West Bengal Services (Classification Control and Appeal) Rules, 1971 the petitioner must be deemed to have been suspended. Therefore, without any disciplinary proceeding his service could not be terminated. The learned Judge further held that Rule 34(3) of West Bengal Service Rules, Pt. 1 had no application to the facts and circumstances of the case.

On 3rd June 1975 the learned Chief Judicial Magistrate, Nadia delivered his judgment acquitting the petitioners and others of the charges under secs. 25 and 27 of the Arms ACT, 1959. The learned Chief Judicial Magistrate directed that the accused persons including the petitioner be set at liberty forthwith and discharged from their bail bonds.

The petitioner in his writ petition has claimed that he had attempted to join his duties but he was not allowed by the respondents. The respondents, as already stated, have not filed any affidavit denying the said allegations. On 1st December, 1975 the Project Administrator, respondent No. 2, simultaneously passed four orders including the impugned order for terminating the petitioner''s service in exercise of his powers under Rule 34B(2) of the West Bengal Service Rules, Pt. 1. The respondent No. 2 by his order No. 4140/ADMN/WF-2E-27/7311 dated 1st December, 1975 reinstated the petitioner in service with effect from the 21st December, 1973. The respondent No. 2 himself stated that the said order dated 21st Dec. 1973 had been quashed by this court in C.R. 596(W) of 1974. Therefore, the respondent No. 2 by making the said reinstatement order really carried out the aforesaid judgment of A. K. Mookerji, J. quashing the order terminating the petitioner''s service. The respondent No. 2 by his order No. 4141/ADMN/WFP/2E-27/73-11 dt. 1st December, 1975 in exercise of the power conferred by sub-rule (3) of rule 7 cf the West Bengal Services (Classification, Control and Appeal) Rules, 1971 directed that the petitioner shall be deemed to have been suspended with effect from the afternoon of 19th September, 1973, the date of his arrest and detention. The respondent no. 2 by the same order passed appropriate orders regarding payment of subsistence allowance to the petitioner for the period of suspension under Rule 71 of the West Bengal Service Rules Pt. 1.

Mr. Maitra, learned Advocate for the petitioner, has rightly submitted that in the instant case the petitioner had been detained in custody for a period exceeding 48 hours on a criminal charge. Therefore, under sub-rule (3) of rule 7 his suspension with effect from the date of detention was automatic and even if no formal order of suspension was made the petitioner must be deemed to be in suspension from the said dare. The respondent no. 2 by his order No. 4141-ADMN/WFP/2E-27/7311 dt. lst Dec, 1975 had merely clarified the legal consequences of quashing of the petitioner''s termination of service by this court in the previous Rule and also the effect of his detention for more than 48 hours. If another view be taken about the effect of the said order No. 4141 then the said order would be a retrospective order of suspension. Mr. Maitra has also rightly submitted that as soon as a Government servant is detained in custody for a period exceeding 48 hours under Rule 7 (3) he is ipso facto placed under suspension. His said suspension does not stand revoked as soon as he is released from custody or acquitted of the criminal charge. Rule 7 (3) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 clearly lays down that a suspension order under Rule 7 (3) shall remain ''until further orders''. In other words, the appointing authority is required to make an order revoking the suspension which has occurred under Rule 7 (3). Mr. Maitra has pointed out that the Supreme Court in the case of Balvantray Ratilal Patel Vs. The State of Maharashtra, with reference to Rules 151, 152, 153, 156 of the Bombay Civil Service -Rules had inter alia held that a person who had been suspended pending a criminal case cannot claim that the said order of suspension was automatically terminated after his acquittal. The Supreme Court laid down.

Until therefore a further order of the State Government was made terminating the suspension the appellant had no right to be reinstated to service.

I respectfully apply the same reasonings and hold that in the instant case the appointing authority of the petitioner did not make any order revoking his suspension and reinstating him in service. The order No. 4140/ ADMN/WFP/2E-27/7311 dated 1-12-75 was not made under Rule 7(3) of the West Bengal Services (Classification, Control and Appeal) Rules. But as already stated, the same gives effect to the decision of A. K. Mookerji, J. in C. R. 596 (W) of 1974. There was neither any express or implied order by the respondents terminating the petitioner''s suspension on the ground that he had been acquitted in the aforesaid criminal case against him. Therefore, no further orders as contemplated un-der Rule 7 (3) was made against the petitioner. I hold that the petitioner on the 1st December, 1975 was still under suspension in terms of Rule 7(3) of the West Bengal Services (Classification, Control and Appeal) Rules.

The respondent no. 2 by his or-der No. 4142/ADMN/WFP/2E-27/7311 dated 1st Dec. 1976 had purported to direct that the petitioner shall be paid for the period of his suspension his pay and other admissible allowances in full less the amounts of subsistence grant and all allowances sanctioned to him for the suspension period. The said order was made under Rule 72 (b) of the West Bengal Service Rules, Pt, 1. I am unable to accept the submission of Mr. S.C Roy, learned Advocate for the respondents, that the said order under Rule 72 (b) of the West Bengal Service Rules by implication revoked the petitioner''s suspension made under Rule 7 (3) of the West Bengal Services (Classification, Control and Appeal) Rules. There is no scope for such submission in view of the clearecital in the order No. 4142 to the effect that whereas the said Mihir Kumar Das has been reinstated in service by order No. 4140/ADMN/WFP dt. 1st Dec. 1975. In other words, the order No. 4142 above of the respondent No. 2 was consequential to the petitioner''s reinstatement made in pursuance of A.K. Mo-okerji, J''s Judgment in C.R. 596 (W) of 1974. The respondents also have not filed any affidavit claiming that either expressly or by implication the petitioner''s suspension under Rule 7 (3) had been revoked and he had been reinstated in service. I have already found that the petitioner was still continuing in suspension until further orders contemplated under the said Rule 7(3). Therefore, I reject the contention that the petitioner''s suspension under Rule 7(3) was revoked.

Mr. Moitra, the learned Advocate for the petitioner has submitted that since the petitioner was still continuing under suspension the respondent No. 2 had acted illegelly by terminating his service under Rule 34 (B) (2) of the West Bengal Service Rules, Part T Mr. Maitra has further submitted that the respondents have not traversed the averments made in the writ petition that the impugned termination order was not bonafide and ''the same was imposed by way of punishment. My attention has been drawn in particular to paragraphs 10 and 11 of the Writ petition. The petitioner in paragraph 10 has, inter alia, asserted that he could not have been dismissed without initiating disciplinary proceedings against him and that the advantage had been taken illegally and wrongfully of the petitioner''s temporary status in order to by-pass the direction given in C.R. 596 (W) of 1974 and the provisions of West Bengal Services (Classification, Control and Appeal) Rules, 1971. The petitioner in paragraph 11 has again claimed that the termination order was malafide and in the background of the facts the said order was colourable, arbitrary and capricious. It has been also submitted on behalf of the petitioner that on 1st December, 1975 four successive orders were passed against the petitioner would indicate that the petitioner was re-instated only to be removed from service on the same date. It is unnecessary to set out in detail the various averments made in the writ petition impugning the bonafide of the termination orders and also contending that the same was passed by way of punishment and to by-pass and evade the order made by this court in the earlier Rule. The respondents have not traversed these allegations as already mentioned above. In the above view on this ground also this Rule is bound to succeed and the termination order should be set aside.

Mr. Maitra also submitted before that in the instant case the respondent no. 2 purported to terminate the petitioner''s service with immediate effect, but did not pay the petitioner''s one month''s salary in lieu of notice as required under sub-Rule (2) of Rule 34 (B) of the West Bengal Service Rules. The respondents have not denied the averments made in the writ petition that the petitioner has not been paid either his subsistance allowance or one month''s salary in lieu of notice. Therefore, in any case the respondents have not complied with even the requirements of sub-rule (2) of Rule 34 (B). On the basis of the uncontroverted facts and also in the light of the facts and circumstances placed before me, I hold that the termination of the petitioner''s service was penal in nature and the same was passed at the date the petitioner was still continuing under suspension in terms of Rule 7(3) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971. Therefore the said termination order should be quashed. I accordingly, make this Rule absolute and quash the order No. 4143 ADMN/WFP/2E-27/73-II dated (the 1st December 1975 terminating the petitioner''s service with immediate effect. Liberty is given to the respondents to proceed afresh in accordance with law. In case any portion of the petitioner''s subsistence allowance remains outstanding he should be paid the said amount within a period of four months from this date.

There will be no order as to costs

Let the operation of this order be stayed for four weeks.