Dhiraj Kumar Roy Chowdhury v. State — 1989 DIGILAW 338 (CAL)

Judgment 1. THIS Writ petition is directed against an order of suspension passed by the Superintendent of Police, Burdwan, against the petitioner by an order dated14th May, 1989. By the aforesaid order the petitioner, a Sub-Inspector of Police, has been placed under suspension with retrospective effect from the 15th April, 1989 when he was arrested by the police in connection with Chinsurah Police Station Case No. 80 dated 14th April, 1989 under sections 498 and 114 of the Indian Penal Code. 2. THE learned Counsel for the State has informed the court that on receiving a complaint that the petitioner used to frequently assault the wife of a teacher in Hooghly Don Bosco School, the aforesaid police station case was started against the petitioner and he was placed under arrest. The allegation is that the petitioner was a friend of the husband of the said school teacher. The Husband and the petitioner and his wife frequently assaulted the wife of the school teacher. After coming to know of such incident the father of the said wife of the school teacher lodged a complaint and the said police case was smarted. 3. THE learned Counsel for the petitioner has contended that the said criminal case is pending wherein the correctness of the allegation will be gone into and appropriate decision be made against the petitioner who is an accused by there was no reason for the superintendent of Police, Burdwan, to place the petitioner under suspension, the attention of the Court has been drawn to Regulation 880 of the police Regulations of Bengal, 1943. The provision of Regulation 880 is set out herein below:- "Suspension is not to be considered a specific punishment, and is only authorised in cases where the continuance in an (office of an officer pending enquiry into his conduct is prejudicial to public interest. When the enquiry is completed, some definite order of acquittal or punishment shall be recorded." 4. THE learned Counsel has contended that for a police personnel who is governed by -the said police regulation, the order of suspension can only be passed if on consideration of the relevant facts the Disciplinary Authority comes to the finding that continuance in an office by a delinquent officer pending enquiry into his conduct will be prejudicial to public interest. THE learned Counsel has contended that for a police personnel who is governed by -the said police regulation, the order of suspension can only be passed if on consideration of the relevant facts the Disciplinary Authority comes to the finding that continuance in an office by a delinquent officer pending enquiry into his conduct will be prejudicial to public interest. The learned Counsels has contended that the petitioner is a Sub-Inspector of Police now attached to Computer Cell in Burdwan and for an alleged incident of assault to the wife of his friend at Chinsurah there cannot be any occasion for placing him under suspension on the ground that continuance of the petitioner in office will be prejudicial to public interests during the enquiry proceeding. The learned Counsel for the petitioner has contended that the Regulation 880 envisages an enquiry into the disciplinary proceeding and not an enquiry in a criminal case instituted against the accused. He therefore submits that in the facts of the' case the Regulation 880 is not also attracted and even if the Regulation 880 is applicable there cannot be any occasion for suspending the petitioner whose involvement in the alleged assault on his friend's wife at Chinsurah cannot be detrimental to his continuance in office in the Computer Cell at Burdwan; the learned Counsel has also contended that the Superintendent of police has not only passed the said order of suspension illegally and without jurisdiction but there has been total non-application of mind which will be apparent from the order of suspension. He has submitted that the order of suspension has been sought to be passed by giving it a retrospective effect from date of the arrest of the petitioner sometime in April. He has contended that such retrospective order of suspension is not permissible under any existing rule governing the service conditions of the petitioner who is a Sub-Inspector of Police. He has contended that under the West Bengal Services (Classification, control and Appeal) Rules, 1971 if a delinquent officer is kept under detention for more than 48 hours toe should be deemed to be under suspension. But the said West Bengal Services (Classification, Control and Appeal) Rules, 1971 are not applicable to police personnel and as such the question of passing the order of suspension retrospectively from the date of his arrest is wholly illegal and without jurisdiction. But the said West Bengal Services (Classification, Control and Appeal) Rules, 1971 are not applicable to police personnel and as such the question of passing the order of suspension retrospectively from the date of his arrest is wholly illegal and without jurisdiction. He has therefore submitted that the order of suspension should be quashed by this Court. The learned Counsel, appearing on behalf of the State respondents, has however contended that the power of suspending an employee is within the inherent right of the employer and in exercise of such inherent right an employer can place an employee under suspension and for this purpose reference has been made to the decision of the Supreme Court made in the case of Balvantrai Ratilal patel v. The State of Maharashtra, reported in AIR 1968 SC 800 and Prodyot kumar Bose v. The Hon'ble the Chief Justice, Calcutta High Court, reported in AIR 1956 SC 285 . The learned Counsel for the State respondents has also contended that under Rule 71 of the West Bengal service Rules, Part I, a Government employee under suspension or deemed to have been placed under suspension by an order of the appointing authority will be entitled to a subsistence allowance at an amount equal to the leave salary which the Government employee would have drawn if he had been on half-pay. Hinder the proviso to the said rule the amount of subsistence allowance will be increased if the suspension continues for a longer period as indicated in the proviso. The learned counsel has contended that under Regulation 774 of the Police Regulations of Bengal, 1943 general conditions of the services of the members of subordinate ranks of the Bengal Police have been indicated and the various rules governing the service conditions of Government employees as referred to in Regulation 774 have been made applicable to he members of the West Bengal Police Force. The learned Counsel has therefore contended that the West Bengal Services (Classification, control and Appeal) Rules 1971 have also been made applicable in view of the Regulation 774 of the Police Regulations of Bengal, 1943. The learned Counsel has contended that on an allegation of a serious misconduct on the part of the police officer the aforesaid criminal case had been instituted and the suspending authority thought it fit to keep the officer under suspension. The learned Counsel has contended that on an allegation of a serious misconduct on the part of the police officer the aforesaid criminal case had been instituted and the suspending authority thought it fit to keep the officer under suspension. Accordingly, it cannot be held that the said order is without jurisdiction or improper and against the order of suspension an interference by this Writ Court is called for. In reply to the said contention of the learned Counsel for the state respondents, the learned Counsel for the petitioner has contended that when the Regulation 880 expressly deals with the case of suspension of the police officer the alleged inherent power of the employer cannot be exercised without reference to Regulation 880. He has also submitted that the suspension is not matter of course in a pending disciplinary proceeding and with extreme care and caution an order of suspension should be passed by the appointing authority. For the aforesaid purpose reference has been made to a decision of the Kerala High Court made in the case of Subramaniam v. State of Kerala and Ors., reported in 1973 (1) SLR 521 and a decision of this. Court made in the case of P. P. Biswas v. The State of West Bengal, reported in 1981 (i) CLJ 149. 5. AFTER considering the respective contentions of the learned Counsel appearing for the parities, it appears to me that a although an employer has an. inherent power to place an employee under suspension but in public employment such power cannot be exercised on mere liking of the employer or capriciously. It should be in mind that if an employee is kept under suspension, he will be entitled to get subsistence allowance and without rendering any services such amount is payable to him. If without any cogent reason merely on the liking of the employer by exercising an inherent right an employee of Government or Public undertaking is kept under suspension and by that process the suspension allowance goes to the employee, not only such action will be arbitrary thereby offending Article 14 of the Constitution but the same will also amount to a loss of public exchequer by not getting any service from the concerned Government employee without any just cause. That apart, in the instant case, when the Regulation 880 of the Police Regulations, Bengal specifically deals with the question of suspension. That apart, in the instant case, when the Regulation 880 of the Police Regulations, Bengal specifically deals with the question of suspension. In my view, the inherent power of suspension of an employer must be held to have been circumscribed by the provisions of Regulation 880 and no order of suspension can be passed if the same does not justify an action of suspension as warranted under regulation 880. In my view, it has been very rightly held by the Kerala high Court in the aforesaid decision [1973 (1) SLR 521] that suspension order should not be lightly passed and it is mandatory for the authority to apply its mind and come to a bona fide conclusion that it was not desirable to keep the delinquent officer in service either in interest of purity and probity of administration or his counting in service of the delinquent employee will render the investigation embarrassing. Mr. Justice Sabyasachi Mukherjee (as His Lordship then was) in the other decision of the Calcutta High Court 1981 (1) CLJ 149 has also indicated that the suspension does not follow automatically whenever disciplinary proceeding is pending or contemplated against a delinquent employee. It also appears to me that Regulation 774 does not make the West Bengal Civil Services (Classification, Control and Appeal)Rules, 1971 applicable to Government employees. The attention of the Court could not have been drawn to any specific provision which applies to a subordinate police personnel in the West Bengal Police force by which retrospective order of suspension can be passed. Normally an order of suspension must be deemed to be prospective because this is a positive action taken by the employer against the employee on consideration of the relevant facts. But in some cases under statutory provision an employee is sometimes deemed to have been placed under suspension and such provision of deemed suspension appears in the west Bengal Services (Classification, Control and Appeal) Rules. But as the said rule does not apply in terms to the petitioner, the question of placing him under suspension with retrospective effect is per se illegal and cannot be sustained. But as the said rule does not apply in terms to the petitioner, the question of placing him under suspension with retrospective effect is per se illegal and cannot be sustained. In my view, there is enough force in the submission's of the learned Counsel for the petitioner that the petitioner is a Sub-Inspector of Police attached to the Computer Cell at Burdwan and for the alleged offence of assulting his friend's wife at Chinsurh, his presence in the office at Burdwan does not appear to have caused any problem for causing an investigation by the local police in the district of Hooghly where the alleged incident of assault had taken place. It appears to me that the Superintended of Police has not adverted to Regulation 880 and only mechanically passed the order of suspension by placing the petitioner under suspension with retrospective effect without taking into consideration the relevant facts for which, in an appropriate case, the police officer can be placed under suspension. 6. IN the aforesaid circumstances, this Writ petition succeeds and the impugned order of suspension is set aside. The respondents are directed to pay to the petitioner all arrear salaries, which would be due to the petitioner had the impugned order of suspension not been passed against him, as early as possible, preferably within a period of four weeks from today. With abundant caution it is made clear that this order will not prevent the respondents from passing any order of suspension in accordance with taw if in the facts and circumstances of the case such order of suspension is warranted in future.