Judgment The subject matter of challenge in this application under Article 226 of the Constitution is the order of suspension dated 25th February 1979 passed against the petitioner. The said order which was issued by the Secretary, Home Department, Government of West Bengal addressed to the petitioner is as follows:- "In Police West Bengal Originator's No. 650 per/GA-I dated 23.2.79 you wore directed to make over charge as S.P., Midnapore forthwith to Shri S. Agarwal, Addl. S.P., Kharagpore and proceed on transfer to join as A.I.G. West Bengal. This was followed by police West Bengal Originator No. 657 per/GA-I dated 24.2.79 in which you were asked to handover charge by 18.00 hra. on 24.2.79 Secretary, Home Department also directed you in Originator's No. 441 PAR(P) dated 24.2.79 to handover charge 18.00 hrs. on 242.79. In your message bearing Originator's No. 614 dated 24.2.79 from Camp Howrah you have admitted having received the two messages dated 24.2.79 at 16.45 hrs. on 24.2.79. You have not made any effort to carry out the orders contained in the messages quoted above. It appears from DIG Traffic & Railways West Bengal Memo. No. 66-C dated 24.2.79 that the message contained in Originator's No. 650 per/GA-I dated 23.2.79 was communicated to you by the DIG personally. It further appears that when the said massage No. 650-per/GA-I dated 23.2.79 was sent to you through O/C Control Room Howrah as you were staying at Circuit House, Howrah, you refused to accept the message. The fact of your refusal to accept the message has been diarised vide entry No. 298 dated 23.2.79 of the General Diary of the Howrah Control Room. In the circumstances stated and having regard to your denial as to the receipt of message No. 650 per/GA-I dated 23.2.79 the contents of which was personally communicated to you by DIG Traffic & Railways, Govt. is of opinion that your explanation of being sick is an after thought to avoid carrying out the order of transfer and handing over of charge despite two messages from Police West Bengal and one message from Home Secretary. Your conduct therefore amounts to wilful disobedience of orders passed as communicated to you in these messages. In the circumstances Govt. contemplates drawing up disciplinary proceedings against you under Rule 3(1)(a) of the All India Services (Discipline & Appeal) Rules, 1969. Pending completion of disciplinary proceedings Govt. Your conduct therefore amounts to wilful disobedience of orders passed as communicated to you in these messages. In the circumstances Govt. contemplates drawing up disciplinary proceedings against you under Rule 3(1)(a) of the All India Services (Discipline & Appeal) Rules, 1969. Pending completion of disciplinary proceedings Govt. is satisfied that it is necessary to place you under suspension. I am therefore directed by order of the Governor to state that you are placed under suspension with immediate effect under rule 3(1)(a) of the A.I.S. (Discipline & Appeal) Rules, 1969. You will be entitled to usual subsistence allowance etc. as enumerated in the said rules. A copy of this order is being lent to Shri S. Agarwal, IPS Addl. S.P. Kharagpore directing him to assume charge of the office of the S.P. Midnapore with immediate effect and to continue to do so till Shri R.K. Nigam, IPS who has already been posted as S.P. Midnapore takes over from Shri S. Agarwal, IPS." 2. In order to appreciate the challenge, it would be necessary to refer to certain facts. The petitioner joined the Indian Police Service through direct recruitment in 1960 and was confirmed in 1962 in the Indian Police Service. In 1963, he took charge as Sub-divisional Police Officer, Bengaon in the district of 24-Parganas, West Bengal. Thereafter, he served as Sub-divisional Police Officer in several other districts and in 1965 was promoted to the senior scale of the Indian Police Service and posted as Additional Superintendent of Police, Darjeeling. I need not go through the other details and particulars of the petitioner's career and so far as this application is concerned the next important relevant date is the petitioner's taking charge on or about 31st July, 1976 as the Superintendent of Police, Midnapore district. The petitioner states in his petition that B.D.O. Sabong and 25 employees of his office were assaulted in the office by the supporters of a particular political party and as a result whereof Sabong P.S. Case No. 4 dated 7th November, 1978 under Secs. 147/149/488/307/32 of the Indian Penal Code was instituted and 28 accused persons belonging to a particular political party were arrested in the case, which the petitioner states, was at the instance of the petitioner. The petitioner further states that on 20th December, 1978 S.I., B.K. Mondal of Bhagabanpur P.S. went to Bahadurpur in the district of Midnapore with a posse of constables. The petitioner further states that on 20th December, 1978 S.I., B.K. Mondal of Bhagabanpur P.S. went to Bahadurpur in the district of Midnapore with a posse of constables. The police party was, according to the petitioner assaulted, attacked and kept confined throughout the whole night by the supporters of a particular political party. Over the incident, Bhagawanpur P.S. No. 17 dated 21st December, 1978 under Secs. 148/147/186/342/332 was instituted. The petitioner supervised investigation of the case locally and ordered the S.D.P.O. Contai to secure arrest of the criminals responsible. Then on the 27th December, 1978 a police party that went to the village Bahadurpur P.S. Bhagabanpur to investigate some easel and to make arrests, according to the petitioner, in a lawful manner was attacked by about 500 strong supporters of a particular political party. The petitioner further asserts that these attackers were armed with lathis, spears and other lethal weapons and some police men were assaulted by the rowdies and one of the arrested persons was snatched away from the lawful custody of the police. The petitioner further states that in self defence the police had to open fire killing two persons and over this incident, Bhagabanpur P.S. Case No. 19 dated 27th December, 1978 under Sec. 147/148/149/332/353/325/307 IPC was instituted. The petitioner supervised the investigation of the case locally on 27th December, 1978. On 28th December 1978 there was an order of Executive Enquiry by the District Magistrate. This was in compliance with regulation 157 of the Police Regulations Bengal, 1943 and it may not be inappropriate to set out the provisions of the said Regulations which read as follows: "157. (a) Whenever the police have used firearms, a full executive enquiry to ascertain whether the firing was justified and whether these regulations were obeyed, shall be held as soon as it can possibly be arranged- (i) by the Commissioner, if a District Magistrate, an Additional District Magistrate, a Superintendent, an Additional Superintendent or the Commandant, Eastern Frontier Rifles was concerned in firing; (ii) by the District Magistrate or an Additional District Magistrate, if a Sub-divisional Magistrate, an Assistant Superintendent or Deputy Superintendent or an Assistant Commandant, Eastern Frontier Rifles, was so concerned, and otherwise; (iii) by the District Magistrate, Additional District Magistrate Sub-divisional Magistrate or Magistrate selected by the District Magistrate. (b) If a District Magistrate or a Commissioner so directs or if a Range Deputy Inspector General or the Superintendent of the district concerned so desires a police officer of rank superior to that of the Police Officer concerned in the occurrence and not below the rank of Inspector shall be associated with the enquiry. Such Officer shall have the right to examine witnesses and his opinion on the case shall be submitted together with the Magistrate's or Commissioner's report. The Police Officer attending the enquiry should write out his report immediately after the enquiry is over. (c) The executive enquiry shall be independent of any enquiries made by the police or by a Magistrate under the Code of Criminal Procedure but evidence recorded in such enquiries may be used. (d) The report prescribed in regulation 156 shall be laid before the officer holding the enquiry. (e) The representation of parties by legal practitioners shall not be allowed at the enquiry; but any police Officer whole conduct is at issue shall be allowed to examine and cross-examine witnesses and to make statements orally or in writing. (f) On completion of the enquiry, the Officer who has held it shall at once send a report to the Provisional Government through that usual channel and make over a copy to the Superintendent or the Deputy Inspector-General of the Range, as the case may be, for submission to the Inspector-General." 3. The petitioner, further, states that on the 11th January 1979, there were certain publications in one of the newspapers in Calcutta, viz. The Statesman, regarding certain reshuffling in the Police Department and in that publication there was some indication of the transfer of the Superintendent of Police, Midnapore. On the 15th January, 1979, the petitioner made a representation to the Additional Inspector General or Police, West Bengal against the proposed transfer. The said representation is set out in Annexure C to the petition. It is not necessary to set out in extense the said representation. It appears that the said representation was in respect of the petitioner's proposed transfer from the Midnapore district. The said representation is set out in Annexure C to the petition. It is not necessary to set out in extense the said representation. It appears that the said representation was in respect of the petitioner's proposed transfer from the Midnapore district. In the said representation the petitioner stated that he had come to learn from a news item recently published in a Calcutta daily that he would be shortly transferred from Midnapore district and posted assistant Inspector-General of Police and though he had not yet received any transfer order the information appeared to have some basis as the report was alleged to have been collected by the official spokesman. He, therefore, stated to the Additional Inspector-General of Police that he hastened to make a representation because, according to him, his transfer at that stage would cause serious difficulties in the matter of his children's education. The petitioner stated that his elder son would appear in the Higher Secondary Education Examination that year from Midnapore College. His collage test for that examination had not been held so far because of she continuing strike by the teaching and non-teaching staff of the College though the same was held in other school and colleges throughout the State within December last. The petitioner further states that after the test was held in the College it would be followed by intensive practical classes in the science subjects. The final Higher Secondary Examination would be held by the Board in the mouth of Mayor June next. So, it would not be possible for the petitioner to leave the district on transfer before the Higher Secondary Examination of 1979 was held or completed. The petitioner further mentioned the difficulties which he had to face in 1976-77 as a result of the transfer to this district from the previous posting in July, 1976. His elder son was then preparing for the Secondary Examination and his test was to be held in December, 1976, and he with the kind permission of the Additional Inspector General of Police had retained his Jadavpur quarters till December but he had to pay rent for both the quarters. According to the petitioner, if he was transferred before May, 1979 he would be subjected to the same trouble, mental anxiety and financial hardship and irreparable damage would be caused to his son’s education. According to the petitioner, if he was transferred before May, 1979 he would be subjected to the same trouble, mental anxiety and financial hardship and irreparable damage would be caused to his son’s education. He, therefore, requested the Inspector-General of Police to keep the order of transfer in abeyance till the end of 1979. On the 17th January, 1979 the petitioner received a telex message regarding his transfer from the post of Superintendent of Police, Midnapore, to the post of Assistant Inspector-General of Police, Writers' Buildings, Calcutta. On the 18th January, 1979, a formal written transfers order was issued by the Government. On the 19th January, 1979, the petitioner made a representation to the Chief Secretary with a Copy to Home Secondary against the impugned order of transfer. In the said representation the petitioner again reiterated his difficulties on the ground of his son's Higher Secondary Examination and requested the Chief Secretary to keep the order of transfer in abeyance till June, 1979. On the 22nd January, 1979 another telex message wall communicated from the Police Directorate regarding the transfer of Sri A.K. Addya, C.I. Contai. on 48 hours notice. There was also the transfer of S.I., B.K. Mondal of Bhagabanpur P.S. These allegations or these facts have been mentioned in the petition for the purpose of suggesting that the petitioner's transfer was motivated by certain incidents of the Bhagabanpur P.S. firing as indicated before. I am indicating these facts, as these have been alleged in the petition. But I do not see any relevance of these allegations in the context of controversy that I have to adjudicate in this case, as I shall presently indicate. I may also mention that it appears to me that these allegations were made by the petitioner only on certain amount of misapprehension, which also I shall indicate from certain other facts, presently. On the 29th January, 1979 there was a letter from the Additional Inspector-General of Police rejecting the petitioner's representation dated 15th January, 1979. In the said communication the Additional Inspector-General of Police indicated that the test examination of the petitioner's son would be over by the middle of February and after the test examination was over, perhaps the petitioner's son would not be required to attend any classes. In the said communication the Additional Inspector-General of Police indicated that the test examination of the petitioner's son would be over by the middle of February and after the test examination was over, perhaps the petitioner's son would not be required to attend any classes. It was further stated that one Sri R.K. Nigam of the Indian Police Service, who was to take over charge from the petitioner had 'withdrawn' his children from the Calcutta Schools on getting the order of posting as Superintendent of Police, Midnapore and had also made arrangement for their admission in the schools at Kharagpur. According to him, Sri Nigam would be put to extreme difficulties regarding the education of his Children. The petitioner sought to argue from certain subsequent letters that there was no question of Sri Nigam's withdrawing his children from the Calcutta Schools because, according to Sri Nigam's own version he had not got his son and daughter admitted to the Calcutta Schools from the beginning of the session on the around that he was being transferred. This discrepancy, if it be called as such again, in my opinion, is not of much significance or relevance for my present purpose. I however make a note of this contention as certain submissions were urged before me on this aspect. The Additional Inspector General of Police, further, staled in his communication dated the 29th January, 1979 that it was not possible for him to accede to the request of the petitioner to keep the order of his transfer in abeyance till the end of June, 1979. He, therefore directed the petitioner that he should make over charge to Sari Nigam when he arrived on being relieved from his post in the Government of India in the first week of February, 1979. The Additional Inspector-General of Police, further, intimated that if the petitioner retained the quarters of the Superintendent of Police till the end of February by mutual arrangement with Shri Nigam, for keeping his family, the Additional Inspector-General of Police had no objection. On the 30th January 1979, there was another letter by the petitioner to the Additional Inspector-General of Police in reply to the communication dated the 29th January, 1979. On the 30th January 1979, there was another letter by the petitioner to the Additional Inspector-General of Police in reply to the communication dated the 29th January, 1979. In that letter the petitioner indicated that after the Test examination there would be intensive practical as well as tutorial classed for the petitioner's son as there was previously a strike and the students could not complete their course. The petitioner also made certain observations about the concern shown by the Additional Inspector-General of Police for Sri Nigam's children and observed. "I would have been glad if the same concern was felt and expressed in respect of the education of my children also". Though this is not relevant, as at present advised, I should have thought it was highly improper for the petitioner to make this kind of observation in a representation to a superior officer. A job in a transferable service has many hazards and one of the hazards in the frequent transfers hampering the education of the children. This is unfortunate, specially when the education of the children has become such difficult proposition in India of today. Yet who are members of the administration should, to my way of thinking, realize that administration exists and exists primarily for the service of the cause of the administration and not for the convenience or inconvenience of the members who man those services. If the need of the administration is possible to reconcile with adjusting certain convenience or inconvenience of the persons who man those services, it is all the more better, but I do not think that a superior officer is concerned so much in ordering a transfer as to the relative convenience of inconveniences of the respective incumbents or of their children’s education, as I said if the convenience of all concerned could be synchronized with the need of the administration it would be an ideal solution. But that is not a ground and cannot and should not ever be a ground for an official representation. Therefore whether consideration of the same nature had been shown for Sri Nigam's children which should have been shown to the petitioners children, in my opinion, is wholly irrelevant as I said before and I think it is necessary to repeat again that these aspects, though addressed in great detail before me are not of much significance in deciding the legal issued posed before me. 4. In order to continue with the narration of events the petitioner in this representation dated the 30th January, 1979 narrated certain hardships that he had to undergo on the occasion of his previous transfer. He had also mentioned about the difficulties that his second son would be put to if he was transferred in the middle of the session. According to him further it was not difficult for a Superintendent of Police to get his children educated in a rural place but it would be extremely difficult for admission in a Calcutta School in the middle of the session. The petitioner, further, observed, "as a disciplined officer of the department, I may ultimately have to obey instructions given from above, but my children will never forgive such an act which is likely to stunt their growth as educated and cultured human beings." As at present advised, I fail to see the relevance of this statement in a representation by a Superintendent of Police to his superior officer. I need not on this aspect say very much more because I do not in this judgment propose to travel beyond the issues, lest it would prejudice the cause of any of the parties in any future proceedings about which I shall presently indicate. On the 31st January, 1979 there was a Telex message from the Home Secretary to the petitioner rejecting the representation of the petitioner dated the 19th January 1979. Then on the 31st January, 1979 that is, on the same date, there was a fresh representation to the Inspector-General of Police, West Bengal with a copy to the Home Secretary explaining the Background of the transfer. In the said representation for the first time the petitioner mentioned about the Bhagabanpur firing and the police case instituted in connection therewith and the transfer of Sri A.K. Addya and Shri B.K. Mondal. The said representation was characterized by the petitioner as "a representation against utterly unjust and malicious order of transfer." In the said representation the petitioner alleged that from the facts that he narrated as indicated before it would be evident that the transfer was for the purpose of pleasing some political parties and the Inspector-General of Police was acting with the sole object of "pleading some political parties in order to fulfil your personal interests at the costs of innocent police officers. I am convinced that you have procured my transfer as AIG in order to oblige some political leaders in your own narrow self-interest. He, thereafter, mentioned about the executive enquiry and observed that there was no other police officer in the district except himself who knew about the entire chain of events and it would shake the morale of the police officers if during the continuance of the executive enquiry he was transferred. He, farther, went on to observe that when the petitioner personally went to make representation on the 19th January 1979, the Inspector of Police threatened him saying that he should meekly accept the transfer order and leave the District immediately if he wanted to continue in service further. Thus, the petitioner stated was another proof that the said Inspector-General of Police was trying to please some political leaders by removing him from the district in accordance with the wishes of those persons. The petitioner, therefore, referred to Rule 877 of the Police Regulation Bengal which stipulates that an order of transfer shall not be passed as a punishment. The petitioner thereupon observed that the petitioner was not expected to carry out such an order of transfer. The petitioner, therefore, called upon the Inspector-General of Police to cancel the transfer order immediately and communicate the order to the petitioner. On the 5th February, 1979 the petitioner moved this Hon'ble High Court under Article 226 of the Constitution and though no Rule was issued by an order passed in the Civil Order the status quo was directed to be maintained for two weeks. 5. On the 6th February, 1979 the petitioner sent a Telex message to DIG, T. & R. about the petitioner's sickness at Haldia on the 4th February, 1979 and praying for one day's casual leave. On the 15th February, 1979 the petitioner sent a Telex message to the said D.I.G., T. & R. for one day's Casual leave, that is for the 16th for treatment at Calcutta. The petitioner states that the petitioner attended the SSKM Hospital, Calcutta and he produced before me a card of the SSKM Hospital which indicated that the petitioner was attended by Dr. A. Chowdhury, F.R.C.S., at SSKM Hospital who had prescribed certain medicines for him and had advised him to come for review after a week. The petitioner states that the petitioner attended the SSKM Hospital, Calcutta and he produced before me a card of the SSKM Hospital which indicated that the petitioner was attended by Dr. A. Chowdhury, F.R.C.S., at SSKM Hospital who had prescribed certain medicines for him and had advised him to come for review after a week. The petitioner states that on the 19th February, 1979 the petitioner fell sick at Baliachak in the district of Midnapore during official tour and was attended by a local physician and on the 21st February, 1979 the petitioner came to Howrah officially to attend a Range Board meeting at Shibpur Police Lines which was scheduled to be held on the 22nd and 23rd February, 1979. It was also expected to be continued till 24th February, 1979, as it appears from the subsequent statements in the affidavit on behalf of the respondents. The petitioner attended the said Range Board meeting at Shibpur Police Lines on the 23rd February, 1979 along with other Superintendents of Police and was there, according to the petitioner and which is not seriously disputed on behalf of the respondents, from 10 O'clock in the morning till 6 O'clock in the afternoon and the said meeting was presided over by Sri A.K. Dutt, D.I.G., T & R and the petitioner and other Superintendents of Police were invited by the said D.I.G. at his residence for dinner on that night. But the petitioner states that after attending the said Board meeting the petitioner attended his physician at SSKM Hospital in the evening as per previous advice on the 16th February, 1979 and he was advised rest and avoidance of journey for ten days by Dr. Choudhury. An endorsement to that effect appears in the card of the SSKM Hospital, the original of which was produced before me at the time of hearing of this application. The petitioner states that the petitioner sent intimation to the D.I.G., T & R through one Sri S.K. Mukherjee, IPS, S.P., Howrah, to the effect that he would not be able to attend the dinner. 6. On the 23rd February, 1979, the writ application was disposed of by Mr. Justice A.K. Mookerji and his Lordship was pleased to dismiss that application at or about 4 O’clock in the afternoon and refused to grant any interim stay. 7. 6. On the 23rd February, 1979, the writ application was disposed of by Mr. Justice A.K. Mookerji and his Lordship was pleased to dismiss that application at or about 4 O’clock in the afternoon and refused to grant any interim stay. 7. It is necessary to refer to certain events that took place on the 23rd and 24th February, 1979. Though again as to what took place actually on 23rd and 24th February, 1979 there is good deal of controversy and perhaps it would be inappropriate for me to deal in detail as to the merit of the respective contentions as to what happened on the 23rd and 24th February, 1979. I may shortly indicate the rival contention of the parties. It appears that according to the respondent on 23rd February 1979 Originator No. 650 was issued. By the said order the petitioner was directed to make over charge forthwith to one S. Agarwal, Additional Superintendent of Police, Kharagpur, and proceed on transfer to join as Assistant Inspector General, West Bengal and Shri Nigam was directed to take charge of the office of the Superintendent of Police, Midnapore, forthwith. I may incidentally mention that previous thereto, Shri Nigam had written to the petitioner intimating the petitioner that he would assume charge on the 5th of February, 1979 or on the 6th February according to the convenience of the petitioner. It is the case of the respondent Government authorities, that this order which is contained in the Originator No. 650 was communicated personally over telephone by the Lalbazar to the Deputy Inspector-General of Police, who was presiding over the Range Board Meeting at Shibpore line and according to their version the Deputy Inspector General of Police communicated the contents of this originator to the petitioner at the Board Meeting and directed him to proceed forthwith. It was also stated that thereafter the D.I.G. had issued a communication or direction that the petitioner might hand over charge at 12 O'clock on the 24th February and in order to facilitate that the Range Board Meeting scheduled to be held on 24th February 1979 was cancelled. This version is strenuously disputed by the petitioner. The petitioner states that the petitioner was not communicated of any such message. On the other hand the D.I.G. Shri Amal Kr. This version is strenuously disputed by the petitioner. The petitioner states that the petitioner was not communicated of any such message. On the other hand the D.I.G. Shri Amal Kr. Dutta has affirmed an affidavit in this proceeding before me on the 22nd March 1979 wherein he has stated that on 23rd February, 1979 he had received instructions on telephone at Shibpur Police Lines, Howrah, while the Range Board meeting was attended by other Superintendents of Police including the petitioner and he received such communication from the Additional Inspector General of Police that the Hon'ble High Court had dismissed the application of the petitioner against his order of transfer dated 12th January, 1979. The Additional Inspector General of Police, according to Shri Amal Dutta, had asked him to communicate the petitioner that he should move on transfer by 12.00 hours on 24.2.79 Shri Dutta states that he duly communicated the order. He also requested the petitioner to attend the dinner, for which the petitioner alongwith other Superintendents of Police had been invited, scheduled to be held at his house that evening and Shri Dutta suggested, according to him, that the petitioner could go back to Midnapore either on the same night or in the early morning on 24th February 1979. Shri Dutta has also stated that on the 23rd February 1979 after the message was received by him, a copy of the said Originator No. 650 was sent to the petitioner through the Officer-in-Charge, Control Room, Howrah District Police as the petitioner was then staying in the Circuit House at Howrah. Shri Dutta asserts the petitioner refused to accept the said message. The said facts were reported by him to the Addl. Inspector-General of Police in his Memo. dated 24th February, 1979. He also reported the said facts to the Deputy Inspector General of Police, Headquarters. Shri Dutta admits that Shri S.K. Mukherjee informed him that the petitioner was unable to attend the dinner, but Shri Dutta states that Shri Mukherjee did not mention about the petitioner being unwell or his inability to attend the dinner was due to the medical advice. Shri Dutta, further states that at no point of time prior to the petitioner having sent a message being Originator No. 614 dated 24th February 1979 the petitioner ever told him in person or over telephone or by any other communication that the petitioner was sick. Shri Dutta, further states that at no point of time prior to the petitioner having sent a message being Originator No. 614 dated 24th February 1979 the petitioner ever told him in person or over telephone or by any other communication that the petitioner was sick. But on 24th February, 1979 the Originator No. 614 was received by Shri Dutta in which the petitioner stated that the petitioner was ill and he was undergoing treatment. The other allegation made by the petitioner about the non-receipt of the Originator No. 650 have been denied by Shri Dutta. Shri Ashok Chakraborty, who is the Additional Inspector-General of Police and one of the respondents herein, has also filed an affidavit in which he has stated about the respective merits and demerits of the claims of the petitioner and Shri Nigam, about children’s education and has narrated the history of transfer and the communication thereof and has further tried to corroborate the version of Shri Dutta. Learned Advocate for the petitioner sought to argue that the version of Shri Dutta was not fully corroborated by the affidavit of Shri Chakraborty. It is not necessary in my opinion, to decide to embark on this question as any observation on this aspect, in my opinion, would prejudice the claim of the parries in the disciplinary proceedings which are pending and about which I shall presently refer. The other allegation of malafide made against the Additional Inspector General of Police has also been denied by Shri Chakraborty to which again I need not refer. He has set out in paragraph 22 of the affidavit about general diary of the Howrah Control Room, why the Originator was sent, when it was sought to be served, how it was refused and other incidental facts. I do not think in the view I have taken that it would be necessary for me to set out in detail the said facts. Incidentally, on 31st January 1979 there is a communication dated 31st January, 1979 issued by the Government where the petitioner was directed to hand over charge to Shri Nigam immediately. In Annexure 'D' to the affidavit he has annexed a communication from Shri Dutta where he has corroborated his version given in the affidavit; as I have indicated before. Incidentally, on 31st January 1979 there is a communication dated 31st January, 1979 issued by the Government where the petitioner was directed to hand over charge to Shri Nigam immediately. In Annexure 'D' to the affidavit he has annexed a communication from Shri Dutta where he has corroborated his version given in the affidavit; as I have indicated before. The Originator 650 is to the following effect:- "Shri P.P. Biswas is directed to make over charge forthwith to Shri S. Agarwal, Additional Superintendent of Police, Kharagpur, and proceed on transfer to join as A.I.G., West Bengal. Shri Nigam will take charge of the office of the Superintendent of Police, Midnapore, forthwith." 8. On the other hand, the petitioner states that the petitioner received two messages at Howrah Circuit House at 16.45 hrs, from Home Secretary on 24th February, 1979 and the Police Directorate to make over charge of the Office of S.P., Midnapore, by 18.00 hrs. to Shri S. Agarwal, Addl. Superintendent of Police. The petitioner further states that on that date the petitioner sent a reply through a telephone message to the Home Secretary, Police Directorate at 17.00 hrs. that he was ill, undergoing treatment and he would make over charge soon after recovery. Then on 26th February, 1978 the petitioner received a message from Shri S.C. Agarwal that he assumed charge as S.P. Midnapore on 25th February 1979 at 21.40 hrs. a Sunday. Then on 27th February 1973 the petitioner sent a telephone message from a private phone to the Home Secretary, Police Directorate and others about the suspension order. Earlier the Control Rooms of Howrah District and Howrah G.R.P., refused, according to the petitioner, to accept the message for transmission under the order of D.I.G., T & R as confirmed by S.P. Howrah and S.R.P., Howrah. The petitioner states that the petitioner received the suspension order on 27th February, 1979 dated 25th February, 1979 which I have set out hereinbefore. 9. The petitioner on 28th February, 1979 submitted representation dated 27.2.79 along with the copy of the Medical Report to the Home Secretary demanding justice and thereafter moved this court and obtained rule nisi from me on 15th March 1979. The petitioner collected a copy of Police message Originator No. 650 from the Midnapore Control Room. According to the petitioner, the said message indicates that it was originated from the Writers' Buildings at 19.00 hrs. The petitioner collected a copy of Police message Originator No. 650 from the Midnapore Control Room. According to the petitioner, the said message indicates that it was originated from the Writers' Buildings at 19.00 hrs. on 23rd February, 1979. The attempt of learned advocate appearing on behalf of the petitioner through the various documents was to establish before me that as the message originated round about 19 hrs. it could not have been communicated to the petitioner during the Board Meeting which ended at 6 O'clock on the 23rd February 1979. On the other hand, the respondents have produced before me copies of the actual telex messages and the entries in the telephone record indicating time, when the message went out from the Writers' Buildings and other necessary details. It is not necessary for me to go into the question whether, the rival contentions about the receipt or non-receipt of the communication, Originator No. 650 on the 23rd February, 1979 and the order of 24th February 1979 were correct or not. I may incidentally, however, point out the Board Meeting which was due to be continued on 24th February 1979 was cancelled on 23rd February, 1979 and the petitioner was aware of the same, that is the version of the respondent and this version is not disputed by the petitioner. The petitioner has never stated that the petitioner was not aware about the non-cancellation of the Board Meeting of the 24th February, 1979. Yet the petitioner did not go to attend the range Board meeting on the 24th February, 1979. It may, therefore be presumed that the petitioner was aware of the cancellation of the Range Board meeting on the 24th February, 1979. Be that as it may, it is not relevant for my present purpose to go into the question as to, whether the petitioner was communicated the order to comply with the order directing him to hand over charge to Sri Nigam or to Shri S.K. Agarwal as directed by originator No. 650 or not. The petitioner states that the respondent authorities dealing with this matter were aware of the petitioner's illness. The petitioner states that the respondent authorities dealing with this matter were aware of the petitioner's illness. It must, however, be put on record that there is no letter prior to 24th February, 1979 indicating any official communication to the respondent authorities about the petitioner's illness in Calcutta at the time when the petitioner was attending the range Board meeting on 22nd February and 23rd February, 1979 or that he had been advised on medical ground not to travel for a certain period of time. In his communication to the Home Secretary on 24th February 1979, the petitioner had stated that the petitioner was unwell and would join as soon as the petitioner was well. The petitioner, however, had not given to the Home Secretary, even in that communication any indications as to how soon it was expected that the petitioner would become well and would be able either to join or hand over the charge to the respondents. It was stressed on behalf of the petitioner that the respondent authorities did not find it necessary to enquire what was the nature of illness of the petitioner and whether the petitioner wall willing to hand over charge to Shri Nigam or Shri S.K. Agarwala at the Circuit House at Howrah where he was staying, if he was not able to undertake the long journey. That is true. It is also true that there is no letter received from the petitioner indicating that the petitioner was unable to travel but he was willing to hand over charge at Calcutta either at Writers' Buildings or at Circuit House in Howrah or requesting either Sri Nigam or Sri Agarwala to assume charge from him around Calcutta because of his illness. This fact I am recording, as certain amount of submissions on behalf of rival parties have been made but as I shall presently indicate, that way as I look at it, these contentions are not quite relevant in deciding the controversy before me. 10. On the factual aspect, however it appears to me that the petitioner's transfer had been decided long prior to December 1978. Before me at the time of hearing, an extract of the order of the Home Department File No. 3P-112/78 regarding posting of police officers was produced. 10. On the factual aspect, however it appears to me that the petitioner's transfer had been decided long prior to December 1978. Before me at the time of hearing, an extract of the order of the Home Department File No. 3P-112/78 regarding posting of police officers was produced. In that file the notes and orders read as follows: "In the proposals at Flag-A it was desired that Shri R.K. Nigam on reversion from the Government of India, should go as S.P., Midnapora vice Shri P.P. Biswas, S.P., Midnapore who should join as AIG and Shri Madan Gopal DC Port should go to Government of India in place or Shri R.K. Nigam. It may not be desirable to disturb the S.P. Midnapore at this stage since that district has been badly affected by floods among other Districts. These change may not be considered till the end or December, 1978. It is true that Shri Madan Gopal is not too well but he is not willing to go on leave now as reported by the CP. So far as his posting to Government of India is concerned, we will write to G/I that Shri Madan Gopal can be released towards the end of the year. 11. The proposals as set out above may kindly be approved. From (1) overleaf to (x) above-x Sd : R.N. Sengupta. 20.10.78 Sd: A.K. Sen. 10.11.78 Sd : Jyoti Basu. 30.10.78 It appears, as indicated before, the signature of the Chief Minister was obtained on 1st November, 1978. It appears that even before that date Sri Nigam, who was of a Bengal cadre and was on deputation for three years to Central Government had asked for reverting back to his parent cadre and the Central Government was insisting on the West Bengal Government to take back Sri Nigam and to depute another officer in place of Sri Nigam to perform the duties which Sri Nigam wall performing on deputation to Central Government. It appears that on the 27 the November, 1978, there was another order, which is set out from the extract produced at the time of hearing, indicated before: "I.G.P. has now proposed that posting orders involving Shri R.K. Nigam, Madan Gopal and P.P. Biswas may is me towards the end of December, 1978. Regarding these officers, IGP's proposal is as follows:- 1. Regarding these officers, IGP's proposal is as follows:- 1. Shri R.K. Nigam IPS on his reversion from the post of Principal CDTS, Government of India may be posted as SP, Midnapore vice Shri P.P. Biswas, IPS 2. Shri P.P. Biswas, IPS, SP, Midnapore (since 31.7.76) be posted as AIG. 3. Shri Madan Gopal, IPS, D.C. Port (since March 1978) be sent on deputation to the post of Principal, CDTS, Government of India vice Shri R.K. Nigam, IPS. An arrangement is required to be made in the post of D.C. Port. IGP however suggested that Shri V.K. Mehta, IPS, Addl. S.P. (Wireless) since 12.9.77 be posted as D.C. Calcutta Police (vide Cor. S item iv) CP's views in the matter may be necessary. It is also suggested that para 2 of C.M.'s order may be shown to IGP/CP for information and necessary action in due course. Sd/- S.K. Bose 27.11.78 (A) This may be put up by the middle of next month. Meanwhile, we may inform Govt. of India that Shri Nigam will be released by the end of December, 1978. (B) Y may be referred to CP Sd/- R.N. Sengupta 27.11.78 It was signed by the Home Secretary on the 27th November, 1978. Then there was an extract of the Order in the Departmental File dated 6th January, 1979 which was to the following effect: "Shri R.K. Nigam, IPS (1962) has been holding the post of Principal, CDTS, Government of India. He is being reverted to the State Govt. on the expiry of his deputation. IGP has suggested that he may join as S.P. Midnapore. Shri Madan Gopal, IPS (1964) acting as D.C. Port, since March 1978 has been selected as the Principal, CDTS, G/I, in succession to Shri R.K Nigam, IPS. We had earlier intimated to the Government of India that Shri Nigam would be released in January 78. We may now agree to release Shri Nigam. The services of Shri V.K. Mehta, IPS (1971) acting as Addl. SP Wireless from 12.9.72 may be placed at the disposed of C.P. in the vacancy caused by the departure of Shri Madan Gopal. Shri Mehta's actual place of posting will be settled in consultation with C.P. Shri P.P. Biswas, IPS, now acting as SP, Midnapore may be transferred as AIG in the vacancy caused by the promotion of Shri A. Dutt, as DIG (Railway & Traffic). Shri Mehta's actual place of posting will be settled in consultation with C.P. Shri P.P. Biswas, IPS, now acting as SP, Midnapore may be transferred as AIG in the vacancy caused by the promotion of Shri A. Dutt, as DIG (Railway & Traffic). Sd : R.N. Sengupta 6.1.79 Sd : A.K. Sen 8.1.79 Sd : Jyoti Basu 9.1.79 It appears that the Chief Minister signed the note on the 9th January, 1979, as indicated above. In the last few lines of the said note it is stated as follows: "Shri P.P. Biswas, IPS, now acting as SP, Midnapore, may be transferred as AIG in the vacancy caused by the promotion of Shri A. Dutt as DIG (Railways & Traffic)." 12. This portion is handwritten as would be apparent from the original file which was produced before me by the learned Government Pleader at the time of hearing of this application. An argument was sought to be based on the fact that this hand-written portion, which is set out hereinbefore, was not in the original file when the Chief Minister was supposed to have signed the final order of transfer of the petitioner. On the other hand, Shri R.N. Sengupta, Home Secretary Government of West Bengal, who is a respondent in this application has affirmed an affidavit stating that this portion was written by him prior to placement of the file before the Chief Secretary and subsequently before the Chief Minister. I find from the affidavit of Shri Sunil Chandra Chowdhury, who is the Inspector-General of Police. That he has annexed a short history relating to the transfer of the petitioner. I find from the affidavit of Shri Sunil Chandra Chowdhury, who is the Inspector-General of Police. That he has annexed a short history relating to the transfer of the petitioner. In paragraph 5 of his affidavit, he has, inter alia, stated as follows: "(i) In or about September, 1978 the Government of India agreed to the repatriation of Shri R.K. Nigam, I.P.S., Principal Central Detective Training School, Calcutta, under the Government of India, to the State Government and placing in his place Sri Madan Gopal, IPS who was then the Deputy Commissioner of Police, Port Division, Calcutta; (ii) Consequent upon the proposed repatriation of Sri Nigam to the State Government I gave a proposal to the State Government in consultation with the Commissioner of Police, Calcutta, on or about October 13, 1978, for transfer and posting of a large number of I.P.S. Officers; (iii) According to the said proposal, which was approved by the State Government for posting of a chain of I.P.S. Officer inter alia, the petitioner was to be posted as Assistant Inspector General of Police, West Bengal, at Calcutta, in an existing vacancy, vice Shri A.K. Dutta, I.P.S., since promoted as D.I.G and the said Sri R.K. Nigam was to be posted as Superintendent of Police, Midnapore; (iv) However, in view of the devastating floods in West Bengal and in particulars in the district of Midnapore, this part of my proposal was decided by the State Government not to be given effect to till the end of December, 1978; (v) Ultimately, as decided earlier by the State Government, the proposal for transfers, appointment and posting of the said I.P.S. Officers, since held up, was finally given effect to and orders were issued accordingly by the State Government on or about January 12, 1979; (vi) In the chain of transfers and postings thus ordered by the State Government, Inter alia, the petitioner was appointed as Assistant Inspector-General of Police, West Bengal, and Sri R.K. Nigam, as Superintendent of Police, Midnapore, in place of the petitioner as originally proposed as back as October, 1978 in a routine manner. I say that the routine transfers and postings of I.P.S. officers usually take place between 2½ years and 3 years; 6(a) With reference to the allegations contained in paragraph 58 of the said petition, I deny and dispute each and every allegation or contentions or submission except what are matters of admitted record. In particular, I deny that the personal communication or direction by the Deputy Inspector General of Police, Traffic & Railways, West Bengal to the petitioner on 23.2.1979 concerning his immediate transfer was down right false as alleged or at all. (b) I say that the respondent No. 9 Shri A.K. Dutta, D.I.G. Traffic & Railways had personally read over and communicated to the petitioner the message contained in Originator No. 650 Per/GA-1 dated February 23, 1979. The said message was further, sent to the petitioner through O/C, Control Room, Howrah as the petitioner was staying at Circuit House, Howrah and that the petitioner had refused to accept the said message. I also say that the fact of the petitioner's refusal to accept the message had been duly diarised as per Entry No. 298 dated February 23, 1978 of the General Diary of the Howrah Control Room. I crave leave to refer to and rely upon the same and I further undertake to produce the same at the hearing if so called upon by this Hon'ble Court. (c) I further say that the respondent No. 9 had communicated to the D.I.G. of Police, headquarters, as well as to the Additional I.G. of Police, the respondent No. 7, regarding the transfer of the petitioner as per Memo. No. 66/C dated February 24, 1979, wherefrom it would transpire that the respondent No. 9, of the DIG Traffic & Railways had personally communicated the contents of Originator No. 650-Per/GA-1 dated 23.2.1979 asking the petitioner to make over charge by 12.00 hrs. on February 24, 1979. The said respondent No. 9, further, told the petitioner that the petitioner might attend the dinner at his house and could go back to Midnapore by night. Further, if it was inconvenient for him (the petitioner) to travel by night the petitioner could as back in the early morning on February 14, 1979 and could make over charge by 12.00 hrs. Further, if it was inconvenient for him (the petitioner) to travel by night the petitioner could as back in the early morning on February 14, 1979 and could make over charge by 12.00 hrs. It would further appear from the laid memo, that the said Originator No. 650-Per/GA-1 dated 23.2.1979 was also sent, as aforesaid, to the petitioner through the O/C, Control Room, Howrah on 23.2.1979, immediately after the said message was received by his office. The petitioner had refused to accept the said massage as stated in the last proceeding paragraph 6(b) I also crave leave to refer to and rely upon the said memo. No. 66/C dated 24.2.1979 at the time of hearing, if necessary." Read in the context of the documents of the Central Government, it appears to me that it corroborates the version of the note of the Inspector General of Police which was prepared about the posting in consultation with the Commissioner of Police. That note was also produced, in original, before me at the time of bearing. That note reads as follows: "I suggest the following posting in consultation with the Commissioner of Police, Calcutta: (i) Shri R.K. Nigam, IPS (1962) may be posted as S.P. Midnapore. (ii) Shri P.P. Biswas, IPS (1960), at present S.P. Midnapore, may be posted as Asstt. Inspector-General of Police, West Bengal, in an existing vacancy, vice Shri A.K. Dutta, IPS promoted. (iii) Shri Madan Gopal, IPS (1964) may be released on deputation to Government of India for posting as Principal, CDTS, Calcutta. (iv) Shri V.K. Mehta, IPS (1971), at present Addl. S.P. Wireless West Bengal may be posted as Deputy Commissioner of Police, Calcutta Police. The Commissioner of Police, Calcutta may indicate the exact place of postings of Shri Mehta. Early issue of Govt. orders will be highly appreciated. Sd/-S.C. Choudhury 13.10.78 Inspector-General of Police West Bengal." Read in the context of other documents of the Government, it appears to me that the decision relating to transfer of the petitioner from the post of Superintendent of Police, Midnapore and bring him down to Calcutta and place Shri R.K. Nigam as Superintendent of Police, Midnapore in order to facilitate Sri Madan Gopal to be released on deputation to Government of India in place of Sri Nigam was taken long prior to Bhagabanpur firing. But this decision was kept in abeyance due to devastating flood in September-October last year in West Bengal and Midnapore being one of the worst affected areas as a result of the flood. Be that as it may, the petitioner has challenged the order of transfer as malafide. The order of transfer was subject matter of challenge in a Writ application which was disposed of by the decision of Mr. Justice Amiya Kr. Mookerji on 23rd February, 1979 wherein his Lordship was pleased to dismiss that application and vacate the interim order. I understand that an appeal has been preferred from the said decision and that is now pending. Therefore, it is not proper for me to go into the question whether the order of transfer was passed malafide or not because that is not the subject matter of challenge or adjudication before me in this proceedings. 13. In order to complete the narration of events, I must say, subsequent to the order of suspension, the petitioner has been charge sheeted under the All India Services (Discipline & Appeal) Rules, 1969 and the said Articles of charges, read as follows: “Article of charge That on 12.1.79, the said Shri P.P. Biswas, I.P.S., while functioning as the Superintendent of Police, Midnapore, was transferred and appointed as A.I.G. of Police, West Bengal in terms of Notification No. 107-P&AR (P) dated 12.1.79 and after consideration of his representation dated 15.1.79 to the Additional I.G. of Police, West Bengal and his representation dated 19.1.79 to the Chief Secretary, Govt. of West Bengal was ordered to start movement without delay by No. 299-P&AR(P) dated 31.1.79 and Org. No. 275-Per(GAL) dated 31.1.79 and after dismissal of his writ petition by the Hon'ble High Court on 23.2.79 was ordered on 23.2.79 by the Additional I.G. of Police West Bengal to hand over charge forthwith to Addl. S.P. Kharagpur and proceed on transfer to join as A.I.G. of Police, West Bengal by radiogram message No. 650-Per-GAY dated 23.2.79 and was also informed on 23.2.79 the contents of the message No. 650-PER-GAI dated 23.2.79 by Shri A. Dutta, D.I.G. (T & R) personally but did not obey the orders of the Government contained in Notification No. 107-P&AR(P) dated 12.1.79 and Govt.'s No. 299-P&AR(P) dated 31.1.79 and lignified his intention to disobey Govt. orders by his letter No. 131/SP dated 31.1.79 addressed to Inspector General of Police, West Bengal and also referred to accept on 23.2.79 the message No. 650-PER/GA dated 23.2.59. Such conduct amounts to wilful disobedience of Government orders and is highly unbecoming of a member in the service and shows his lack of devotion to duty and is violation of Rule 3 of the All India Services (Conduct). Rules, 1968" The second Article of charge reads as follows: “Article of Charge Shri P.P. Biswas, IPS Superintendent of Police, Midnapore, was transferred and appointed as A.I.G. of Police, West Bengal by Govt. Notification No. 107-P&AR(P) dated 12.1.79. The said Govt. Notification was communicated to him under Memo. No. 241(3)-PEP(GAI) dated 16.1.79 Shri Biswas submitted a representation to IG of Police, West Bengal to keep the order of his transfer as AIG of Police, West Bengal in abeyance till the end of June, 1979 by his Memo. No. 90/SP dated 15.1.79 which was considered and rejected and the orders were communicated to him vide Memo. No. 423-PER (GAI) dated 29.1.79. Shri Biswas also sent a representation addressed to the Chief Secretary, Govt. of West Bengal to keep his order of transfer in abeyance by his Memo. No. 97/SP dated 19.1.79. Government rejected his prayer for keeping his order of transfer in abeyance, vide Home (P&AR) Deptt's. No. 299-P&AR(P) dated 31.1.79 and he was informed with reference to Govt. order rejecting his prayer that movement should start without delay, vide Org. No. 275-PER (GAI 31.1.79.) He signified his intention to disobey the Govt. orders by his letter No. 131/SP dated 31.1.79 addressed to I.G. of Police, West Bengal and he then moved the Hon'ble High Court and got interim order to maintain status quo on 5.2.79. Writ application filed on behalf of Shri Biswas against the transfer orders was dismissed by the Hon'ble High Court on 23.2.79. Following orders were thus issued directing Shri Biswas to make over charge to Addl. S.P. Kharagpur forthwith and proceed on transfer to join as AIG of Police, West Bengal, vide Org. No. 650-PER/GA dated 23.2.79 and copy of the above message was sent to S.P. Howrah for service on Shri Biswas, vide Memo. No. 1599-CR dated 23.2.79. The message contained in Originator's No. 650-PER/GAI dated 23.2.79 was communicated to him by DIG (T&R) personally, as reported by the DIG (T&R) in his Memo. No. 650-PER/GA dated 23.2.79 and copy of the above message was sent to S.P. Howrah for service on Shri Biswas, vide Memo. No. 1599-CR dated 23.2.79. The message contained in Originator's No. 650-PER/GAI dated 23.2.79 was communicated to him by DIG (T&R) personally, as reported by the DIG (T&R) in his Memo. No. 66-C dated 24.2.79. When the said massage No. 650 PER/CAL dated 23.2.79 was sent to Shri Biswas through O/C. Control Room, Howrah as he was then staying at the Circuit House, Howrah he refused to accept the message. The fact of his refusal to accept the message had been diarised in entry No. 298 dated 23.2.79 of the General Diary of the Howrah Control Room. The above conduct of Shri Biswas amounts to wilful disobedience of Government orders and shows his lack of devotion to duty. Hence the charge." 14. I must also make it clear that the disciplinary proceedings initiated by the said charge sheets is also not the subject matter of challenge before me. The petitioner has been charged, in substance for wilful disobedience of the Government order of transfer and non-compliance thereof being guilty of conduct unbecoming of a member of the Indian Police Service. Learned Advocate for the petitioner drew my attention to the second annexure to the Article of charge wherein certain reference has been made to the proceedings taken in this High Court challenging the transfer order. It was sought to be urged that by this reference the petitioner was being victimized for having taken recourse to this Court for redress of his grievance on the order of transfer. Whether that order, is proper or not, again is not for me to decide, as I have mentioned before the proceeding taken against the petitioner, as such, is not the subject matter of challenge before me. The subject matter of challenge, before me, is the order of suspension dated 25th February 1979 which I have set out hereinbefore. 15. The said order has been challenged on two broad grounds, mainly that the order was passed malafide. It was alleged that taking the backgrounds and the facts of this case, the order was passed malafide in order to prevent the petitioner from moving the Division Bench of this Court against the order passed by Mr. Justice Amiya Kr. Mookerji and that was the hurry or the so-called emergent situation which necessitated the transfer. It was alleged that taking the backgrounds and the facts of this case, the order was passed malafide in order to prevent the petitioner from moving the Division Bench of this Court against the order passed by Mr. Justice Amiya Kr. Mookerji and that was the hurry or the so-called emergent situation which necessitated the transfer. It was, secondly sought to be urged that having regard to the background and the facts of the case, as indicated in the petition by the petitioner regarding Bhagabanpur Police firing and the publication in the newspapers, the petitioner was being suspended on the pressure of certain political party and other forces and this order of suspension was not passed bonafide for the purpose which it was intended. It was, then, urged that the order of suspension was contrary to the provisions of Rule (3) of the appropriate Rules. It was urged that the consent of the Central Government was necessary. Of course, learned advocate for the petitioner in his fairness did not press this aspect of the matter but sought to concentrate on the ground that there was no ground for placing the petitioner under suspension in the facts and circumstances of this case. In the view I have taken, it is not necessary for me to go into the question of malafide. I do not propose to go into the question of malafide for this reason because this will also involve adjudication of certain facts which are connected with the order of transfer and which are connected with the validity of the question whether the petitioner was guilty of in subordination or wilful disobedience of the order of the Government. Any observation or adjudication on this aspect, in my opinion, will prejudice the disciplinary proceedings which have been taken and which are pending. In my opinion, it would be inappropriate to express any views on this aspect of the matter and that will be gone into in the disciplinary proceedings. 16. Relevant portion of Rule 3, at the relevant time, as it stood of the All India Services (Discipline and Appeal) Rules 1969 was as follows : "3. In my opinion, it would be inappropriate to express any views on this aspect of the matter and that will be gone into in the disciplinary proceedings. 16. Relevant portion of Rule 3, at the relevant time, as it stood of the All India Services (Discipline and Appeal) Rules 1969 was as follows : "3. Suspension during disciplinary proceedings – (1) If, having regard to the nature of the charges and the circumstances in any case, the Government which initiates any disciplinary proceedings is satisfied that it is necessary or desirable to place under suspension the member of the Service against whom such proceedings are started, that Government may – (a) if the member of the Service is serving under it, pass an order placing him under suspension, or (b) if the member of the service is serving under another Government, request that Government to place him under suspension, pending the conclusion of the inquiry and the passing of the final order in the case; Provided that in cases where there is difference of opinion between two State Governments, the matter shall be referred to the Central Government for its decision. (7)(a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so. (b) Where a member of the Service is suspended or is deemed to have been suspended, whether in connection with any disciplinary proceeding or otherwise, and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to police him under suspension may, for reasons to be recorded by him in writing, direct that the member of the Service shall continue to be under suspension with the termination of all or any of such proceedings; (c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order." 17. I am not concerned in this application with the other portion of the said rule. I am not concerned in this application with the other portion of the said rule. The rule enjoins that having regard to the circumstance in any case, and where Articles of charges have been framed, the nature of the charges, if the Government is satisfied, that it is necessary or desirable to place under suspension a member of the Service against whom the disciplinary proceedings are either contemplated or pending, that member may be put under suspension. As I see the rule, in my opinion, it is clear that it is necessary for the Government to be satisfied and that is the first condition. The satisfaction must be that it is necessary or desirable to place the Government servant under suspension against whom either the disciplinary proceeding is pending or is contemplated. In this case, the disciplinary proceeding when the suspension order was passed, was not pending but was contemplated. Therefore, this condition, in my opinion, is satisfied. The Home Secretary, in his affidavit on behalf of the respondent Government, has asserted this position and I must accept that assertion that the Government was also satisfied, that is to say, the Government had the satisfaction on this aspect. Now the question is whether in this case as charges had not been framed when the suspension order was passed, the satisfaction had been 'having regard to the circumstances of the case'. In my opinion, in the case where disciplinary proceedings are pending or contemplated, suspension does not follow automatically. It must be dependant either where the charges have been framed 'having regard to the charges' or where the charges have not yet been framed 'having regard to the circumstances of the case'. In my opinion, the circumstances of the cue may be such that for the conduct of the disciplinary proceedings it is necessary to place the Government officer concerned under suspension. That this is the purpose may be inferred from certain observations of the Supreme Court in the case of (1) P.P. Nayak v. Union of India reported in AIR 1972 SC 554 upon which the learned Government Pleader relied very heavily. I must, however, observe that was a decision at the time suspension was permitted only when disciplinary proceeding was actually pending and not contemplated. I must, however, observe that was a decision at the time suspension was permitted only when disciplinary proceeding was actually pending and not contemplated. In that context, the majority of the Justice of the Supreme Court, held that suspension order should not be passed in a case where disciplinary proceeding was contemplated. Minority decision of Mr. Justice A.N. Ray, as his Lordship then was and Mr. Justice G.K. Mitter, was, otherwise and they were of the opinion that in a contemplated case of disciplinary proceedings, suspension order could be passed. But, in the said decision, in paragraphs 61, 64, 66 to 68 the Supreme Court has indicated the purpose behind the right to suspend a Government servant pending completion of the Disciplinary action or proceedings. The purpose in the words of the Supreme Court was to prevent anything which would impede the very investigation and which would permit misuse of power by the person concerned against whom investigation was sought and which would facilitate investigation or which would be a step in aid of investigation. Therefore anybody who is in the custody, power and possession of evidence that evidence should not be kept in the position from where he could impede the very investigation. That, in my opinion is a correct view of the purpose of the right of the Government to suspend a Government servant against whom investigation is pending. It is not appropriate to say that in every case where disciplinary proceedings are pending, suspension must follow automatically, it depends upon the nature of the evidence in respect of which disciplinary proceedings are pending and the person against whom the order is made. 18. In this case the Home Secretary, Sri Rathindra Nath Sen Gupta, in his affidavit affirmed on the 22nd March, 1979 has given certain grounds. According to him, in paragraph 20 of the said affidavit-in-opposition, the petitioner was refusing or neglecting or failing to hand over charge on some pretext or other, as he was directed to hand over charge forthwith as he interim and emergent measure by way of stop-gap arrangement to Sri S.C. Agarwal, until Sri R.K. Nigam was in a position to join as a Superintendent of Police and further that the petitioner had disobeyed the order of the Government and was trying to avoid service. Therefore, it was not possible to keep the position in a vacuum for a long time and as such the suspension order was passed in contemplation of the disciplinary proceedings and the Government was satisfied that it was against the interest of the administration to keep the posting of a Superintendent of Police or a big district like Midnapore in a state of suspense. Therefore, it is manifest from the averments of the Home Secretary that as the Government thought on the materials before it that the petitioner was avoiding to hand over charge and was neglecting to obey the government orders and as it was undesirable to keep the office of the Superintendent of Police of a big district like Midnapore, in a vacuum for a long time, suspension was the only course open to the Govt. Now, when a power is given to an executive authority to be exercised on certain conditions, it is well-settled that power must be exercised on the fulfilment of those conditional and a satisfaction irrespective of or independent of those conditions is a satisfaction which is of no force in a Court of law. Where powers are conferred on public authorities to exercise the same when "they are satisfaction or when "it appears to them" a certain state of affairs exists, or when powers enable public authorities to take such action as they think fit in relation to a subject matter. The court, will not readily defer to the conclusiveness of executive authority’s as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated. Administrative decisions must be made on relevant consideration (2) Sk. M.A. Rasheed v. State of Kerala A.I.R. (1974) S.C. 2249. This position is well-settled and has been reiterated in several decisions. Reviewing some of these decisions I had occasion to discuss this aspect in the case (3) State of West Bengal v. Narendra Narayan Dass, 1977 (1) CLJ, page 374, a decision upon which the learned Government Pleader, and I had observed that scope of judicial review in respect of administrative or executive order is well settled. The court is to examine whether the opinion or satisfaction in question was formed bonafide. I will assume for the present purpose that satisfaction was there of the Government. The court is to examine whether the opinion or satisfaction in question was formed bonafide. I will assume for the present purpose that satisfaction was there of the Government. I will assume further for the purpose of this application that the satisfaction was arrived bonafide. But I had observed further in that decision that the Courts must examine whether there are materials relative or germane to the question at issue. The court is, however, not concerned with sufficiency of the materials or with the question whether on the materials available the court would have formed the opinion or come to the same decision. It has been emphasised that there must be factual basis for the decision taken or the satisfaction arrived at. There must be some materials and the materials must have rational nexus with the satisfaction entered into. This position has also been summarised in Wade's Administrative Law, Fourth Edition, page 340, where the learned Author has observed as follows: "The common theme of all the passages quoted is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is concerned as it were upon trust, not absolutely that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal line is to be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act. The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish. He may act out of malice or spirit of revenge, but in law this does not affect this exercise of his power. In the same way a private person has an absolute power to release a debtor, or where the law permits, to evict a tenant regardless of his motives. This is unfettered discretion. He may act out of malice or spirit of revenge, but in law this does not affect this exercise of his power. In the same way a private person has an absolute power to release a debtor, or where the law permits, to evict a tenant regardless of his motives. This is unfettered discretion. But it is wholly inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good, and within the true policy of the statute. There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed. Nor is this principle an oddity of British Law. Nor is it special restriction which fetters only local authorities: it applies no less to ministers of Crown. Nor is it confined to the sphere of administration: it operates wherever discretion is given for some public purpose for example where a judge has a discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion is absolute. Plainly this can have no application in public law. For the same reasons it makes no sense to ask whether there may be unreviewable administrative action. Unreviewable administrative action is just as much a contradiction, in terms as is unfettered discretion at any rate in the case of statutory powers. The question which has to be asked is what is the scope of judicial review. But that there are legal limits to every power is axiomatic." 19. Judged in that background the learned Government Pleader had sought to urge that in this case the petitioner was obstructing handing over the charge of the district of Midnapore and such a position could not be permitted to continua. I am inclined to agree that such a position should not be allowed to continue and if the government on certain materials was prima facie satisfied that the petitioner was not handing over charge deliberately, the petitioner was guilty of insubordination and wilful disobedience of the government order. The government was justified in those circumstances to make appropriate arrangement for taking over charge of the district in an appropriate manner. The government was justified in those circumstances to make appropriate arrangement for taking over charge of the district in an appropriate manner. The Government is equally perhaps justified in initiating proceeding for investigations to whether the officer concerned in guilty of insubordination and wilful disobedience of the Government order and that the Government has done that as I have indicated before. But the question, is, whether the Government had to resort legally to the order of suspension to take over charge from the petitioner, even assuming that the petitioner was not handing over charge wilfully. In this connection Regulation 839 of Police Regulations Bengal may be relevant, which is as follows: "839(a) The charge of any office, station or post shall be made over and taken over by the relieved and relieving officers personally in each other's presence at the headquarters of the former, except when special permission has been given by the Inspector-General or the Provincial Government, as the case may be for the transfer of charge to be effected otherwise (Sec. S.R. 11 of the Fundamental Rules and Rule 28 of the Bengal Service Rules). (b) When an officer assumes charge as Superintendent, Additional Superintendent, Assistant or Deputy Superintendent, he shall sign a charge certificate in duplicate in Bengal Form No. 2403 and forward one copy to the Inspector-General and one to the Accountant-General. The relieving Officer shall also report his assumption of office to the District Magistrate and the Deputy Inspector-General of the Range (see regulation 1069)." 20. In my opinion, the expression "except when the special permission has been given by the Inspector-General or the Provincial Government" amply covers a situation of this nature. The Government, in my opinion, is not powerless or important in a situation of this nature where an incumbent refuses or is unable to hand over charge of an office if the exigencies of the public service so demand. I asked the learned Government Pleader, supposing a person was too ill physically or mentally to hand over document or sign document of charge, was the Government not in a position to take over charge of that office? To this the learned Government Pleader said that this was but a way of voluntarily handing over charge and such a situation might be covered. To this the learned Government Pleader said that this was but a way of voluntarily handing over charge and such a situation might be covered. But I do not find any limitation as to voluntary or involuntary assumption of charge in Rule 839 of the Regulations. Quite apart from Rule 839, in my opinion all powers in the executive authority, even if there be no express powers, must be so read as to imply in them such a power which will be effective and effective for the purpose. Therefore, if in a situation the Government wants to assume charge from either a recalcitrant or unwilling or unable officer the Government, in my opinion, is not incompetent or powerless to assume charge. Suspension which is only when a disciplinary proceeding is either contemplated or pending and where the circumstances of the case or the article have been drawn up in view of the nature of the charges can be made, and in my opinion, suspension is not the means by which the Government can only assume charge. Even assuming that was the purpose then that suspension must be for a temporary period of a day for assumption of office. The suspension may not be for the pendency of the disciplinary proceedings. In this case the learned Government Pleader submitted that the petitioner, if be is placed in the high position, would perhaps interfere with the disciplinary proceedings and if he is allowed to continue, the discipline and morale or the police force might be undermined and it would be embarrassing for the Government as well as the petitioner to be in office. There was no guarantee, according to the learned Government pleader, that the petitioner would not again disobey the Government order, and misuse his power. There are certain difficulties in accepting this contention. First, the satisfaction must be of the State Government on certain materials. Now, that satisfaction on these materials were arrived at, there is no necessary averment. Even if I try to infer from the facts of the case that these facts must have been at the back of the Government when it sought to pan the impugned order, even then, in my opinion, these are not germane to the order in question. I will indicate the reason why. Even if I try to infer from the facts of the case that these facts must have been at the back of the Government when it sought to pan the impugned order, even then, in my opinion, these are not germane to the order in question. I will indicate the reason why. It appears to me that the charge against the petitioner is that he wilfully disobeyed the order of the Government. Now, on this aspect the list of witnesses have been annexed. The list indicates Inspector-General of Police, the Home Secretary, The Chief Secretary, the D.I.G. Traffic and Range and perhaps other high ranking police officers who communicated this order or who were present at the time of the communication of the order at the meeting of the Superintendents of Police at the Range Board meeting. It is inconceivable that a Superintendent of Police would be in a position or the persons in such high position in the Police rank would in anyway be influenced by anything that the petitioner does from his office and holding an office similar to the senior rank to which the petitioners had been entitled on transfer. The petitioner is no longer in the district of Midnapore. The petitioner cannot impede any investigation. Indeed for the purpose of this investigation of course nothing very much happened at Midnapore. So even the presence of the petitioner at Midnapore would not in any way interfere with the conduct of the proceedings for which suspension has been ordered. The learned Government Pleader stressed on the point that discipline in police force is very important. I entirely agree with this submission that discipline in police force is of vital concern and without embraking on any examination as to who is responsible for the widespread indiscipline in all spheres of our life, I think the Government Pleader could not be more right when he stressed that the court should at least do nothing to encourage indiscipline among the Government servants or among the members of the police force. But discipline really generates from a sense of justice based on confidence. But discipline really generates from a sense of justice based on confidence. If a Government servant feels that before his case is heard he is put under suspension unnecessarily then, in my opinion, the morale is more shaken and indiscipline more engineered than by creating an atmosphere that the government servants are given to understand that while the government will not permitinsubordination and disobedience of the government order but the penalty will be visited only after due process of law and without victimisation. If that sense can be created and that confidence generated, in my opinion, then the true basis and foundation of discipline would be laid within the administration who will be in charge of the maintenance of the law and order, therefore, the very fact that the petitioner was being charged with insubordination and yet allowed to continue in the service pending the enquiry in my opinion, would generate more confidence in the administration and create more sense of discipline among the police force who, as I said, must be maintained in a highly disciplined manner if law and order in this country has to be maintained. Judged in this context, in my opinion, the materials so far disclosed, either in the affidavit of the Home Secretary or in the background of the facts and circumstances as I have narrated before and in the light of the charges subsequently framed, it cannot be said that the suspension order was for materials "having regard to the circumstances of the case" or "having regard to the nature of the Charges". Therefore, even if the Government had reached the satisfaction bonafide, in fact the satisfaction was on extraneous materials and cannot therefore sustained in law. There are several decisions which were cited from the Bar. I will make a note of them. They only reiterate that administrative decision affecting rights of the parties must be arrived at fairly. The learned Government Pleader stressed the point that suspension pending disciplinary proceedings is not a punishment. He is right. But suspension does entail certain consequences detrimental or disadvantageous to the person concerned. Therefore, such consequences must be arrived at strictly upon the fulfilment of the conditions upon which such consequences can be visited under the rules as embodied in Rule 3. 21. He is right. But suspension does entail certain consequences detrimental or disadvantageous to the person concerned. Therefore, such consequences must be arrived at strictly upon the fulfilment of the conditions upon which such consequences can be visited under the rules as embodied in Rule 3. 21. The next aspect which was stressed by the learned Government Pleader was that under rule 16 of the All India Services (Discipline & Appeal) Rules, 1969 an appeal was provided to the Central Government against any decision of suspension made under Rule 3 of the said Rules. Therefore, the learned Government Pleader submitted that under the amended Article 226 of the Constitution, the petitioner having an alternative remedy was not entitled to take recourse to Article 226 of the Constitution. Now, Article 226 of the Constitution as amended, in so far as it restricts report to a Court on certain circumstances, must be strictly construed because it involves curtailment of the jurisdiction of the Court. If the order is passed on a matter extraneous to Rule 3, then the order of suspension is not under Rule 3 and Rule 16 of All India Services (Discipline & Appeal) Rules provides for an appeal from an order of suspension made or deemed to have been made under Rule 3. Strictly speaking, it does not cover an order purported to be made under Rule 3. Such a strict construction is permissible specially in case of ouster of jurisdiction of the court, which is to be inferred. But quite apart from this, in my opinion, the remedy, as I have held before and as it is now well-settled by several other decisions of this Court, must be for the injury complained of. Now, an appeal to the Central Government from the order of suspension will not be a remedy of the immediate grievance or the injury suffered by man placed under suspension and faced with the consequence of suspension. Therefore, in my opinion, Rule 16 of the said Rules is no bar to the exercise of jurisdiction of this Court. 22. As I have indicated before, there were several decisions referred to. I will note the decisions. But as I said, these reiterate the principle that administrative decisions must be arrived at fairly. Some cases emphasis that the principle of natural justice are to be followed. 22. As I have indicated before, there were several decisions referred to. I will note the decisions. But as I said, these reiterate the principle that administrative decisions must be arrived at fairly. Some cases emphasis that the principle of natural justice are to be followed. But suspension pending disciplinary proceedings, in my opinion, need net be upon notice to the person concerned, because he will get his chance in the disciplinary proceedings. The learned advocate for the petitioner drew my attention to the decisions in the cases of: (4) Breen v. Amalgamated Engineering Union & Ors. (1971) 2 Q.B. 175 at p. 190; (5) James Leslia Williams v. Haines Thomas Giddy (1911) A.C. 381 at p. 385 (6) Roberts v. Hepood (1925) A.C. 578 at p. 613; (7) Jaisinghani v. Union of India, AIR 1967 SC 1427 ; (8) S.R. Venkataraman v. Union of India, AIR 1979 SC 49 ; (9) Raman Kutty v. State of Kerala, 1973 (1) SLR 408 ; (10) Gurcharan Dass v. State of Rajasthan AIR 1966 SC 1418 ; (11) Chapman v. Honig, (1963) 2 All ER 513; (12) C.E. Eranimose, Inspector v. State of Kerala, 1970 SLR 520; (13) Chandrashwari Prasad v. State of Bihar AIR 1956 Patna 104; (14) T. Narsaiah v. P. Bhadraiah AIR 1973 AP 75 ; (15) Maneka Gandhi v. Union of India, AIR 1978 SC 597 ; (16) Dharam Chand v. State of Bihar, AIR 1976 SC 1433 ; and (17) G.P. Reddy v. State, AIR 1979 Karnataka 63. 23. It is not necessary in the view I have taken in the facts and circumstances of the case to discuss those aforesaid decisions on in any further detail because the principles, as I said, which are applicable to this case are well settled. 24. In the view I have taken, therefore, (i) I set aside the order dated the 25th February 1979, which is annexure 'M' to the petition and quash the same and restrain the respondents from giving effect to the same. (ii) I, however, make it quite clear that I am not interferring with the order by which Sri S.C. Agarwal has assumed charge as the Superintendent of Police temporarily and had thereafter handed over charge to Shri R.K. Nigam as the Superintendent of Police, Midnapore. (ii) I, however, make it quite clear that I am not interferring with the order by which Sri S.C. Agarwal has assumed charge as the Superintendent of Police temporarily and had thereafter handed over charge to Shri R.K. Nigam as the Superintendent of Police, Midnapore. I am making it unequivocally clear that the petitioner will not continue until express order of the Government again, as Superintendent of Police, Midnapore. (iii) The petitioner will pursuant to the order of transfer be entitled to join the position as Assistant Inspector-General of Police, West Bengal, if that position has not been occupied by any other incumbent, than the State Government should place the petitioner in an appropriate position in any other place commensurate with his rank and position in service that the State Government thinks fit and proper. (iv) By the interim order passed by me on the 15th March, 1979, the petitioner has been paid a sum or Rs.2,000/-. The learned Government Pleader has stated that this payment had been made over and above the subsistence allowance. In any case, whatever payments have been made to the petitioner including the sum of the Rs.2,000/- must be adjusted against any salary receivable by the petitioner in accordance with law. (v) By the said interim order I had also directed that the arrangement of stay in the quarters by the petitioner's family will continue in the meantime. The petitioner or the members of hill family must vacate if they are still in occupation of the quarters of the Superintendent of Police, Midnapore, by the 15th of May, 1979, positively. If thereafter the petitioner's son his to stay in Midnapore and if the petitioner can make arrangement for such stay there with Shri R.K. Nigam then this Court is not concerned. If such arrangement could not be made, then the petitioner would be, at liberty to make private arrangement for such stay. (vi) The petitioner should forthwith within a week from this date communicate to the Government him willingness to assume charge as Assistant Inspector-General of Police and the respondent authorities should give him such assignment if that position is free and has not been occupied by anybody else, and if it has been occupied, then such other position as the State Government thinks fit and proper. The Rule is made absolute to the extent indicated above. The Rule is made absolute to the extent indicated above. There will, however, be no order as to costs.