Research › Browse › Judgment

Calcutta High Court · body

1998 DIGILAW 11 (CAL)

Danabendra Roy v. State of West Bengal

1998-01-12

KALYAN JYOTI SENGUPTA

body1998
Judgment Leave is given to file affidavit-in-opposition and affidavit-in-reply which are made ready. 2. This writ petition is directed against an impugned order of suspension which was issued admittedly in contemplated disciplinary proceedings as far back as on 11th February, 1993. The petitioner is an employee of Mahishbathani Gram Panchayat. He until the impugned order was passed, have been holding the post of Secretary of the above Panchayat. In the impugned suspension order it has been mentioned as follows:- "Whereas the Block Development Officer, Old Malda has lodged F.I.R. with the Maida Police Station against the delinquent Secretary, Ex-Pradhan, Dealer for making such allegations; and Whereas the District Magistrate, Maida on being satisfied with the aforesaid enquiry reports into such allegations, has instructed the appropriate authority to take necessary action; and Whereas for the reasons as stated above, a departmental proceeding is contemplated against him; Accordingly in terms of power conferred upon the undersigned under Rule 32 of the W.B.P. (G.P. Admn.) Rules. 81 it is hereby ordered that Sri Danabendranath Roy, Secretary to Mahishbathani Gram Panchayat within said Block in the same District is placed under suspension with effect from 11.02.1993." 3. It is stated in the writ petition that since the date of issuance of the said impugned suspension order no disciplinary proceeding has been commenced till today. In the affidavit-in-opposition such fact has also been admitted. In the affidavit-in-opposition in Paragraph 17 it is specifically stated :- "I specifically say that since a departmental proceedings contemplated on the ground of alleged involvement in a criminal case the suspension order has been issued fro the sake of the investigation of the criminal case and framing of charge sheet. The petitioner may have influenced the process of criminal investigation by using his official capacity if the suspension order was not issued. Suspension is not punishment but a part of departmental proceedings and it is an administrative measure and hence the writ Court should not, interfere with the administrative function of the statutory authorities." 4. The learned Lawyer appearing for the State-respondents submits that a Memo has been issued from the District Panchayat Officer being Memo dated 10th March, 1997. From that Memo it has been recorded that no departmental proceeding has been started under the suspension order issued against him. It is further recorded that F.I.R. has been lodged by the Block Development Officer, Old Maida. From that Memo it has been recorded that no departmental proceeding has been started under the suspension order issued against him. It is further recorded that F.I.R. has been lodged by the Block Development Officer, Old Maida. Therefore it is admitted position that as on today there is no disciplinary, proceeding. 5. The learned Lawyer Mr. Dhole appearing for the writ petitioner submits that according to the settled law in contemplation of a disciplinary proceeding order of suspension it cannot be allowed to be continued without initiating such disciplinary proceeding. If that is allowed to be continued to be done then if such tantamounts to punishment without initiating any disciplinary proceedings. In support of his submissions be cites one of the decision of this Court reported in (1) 1992 (1) CHN 398 . 6. I have beard the respective submissions of the learned Lawyers. I am of the view that this impugned order is, nothing but an order of punishment, because initially the impugned suspension order was issued in contemplation of the disciplinary proceeding whatsoever may be the grounds of the proceedings, but this disciplinary proceeding has not seen the light of the day till today. Even in a document dated 10th March, 1997 speaks as on that date there was no attempt to initiate such proceedings. Therefore this petitioner cannot be kept under suspended animation indefinitely. Accordingly, I set aside and quash this impugned order of suspension and the petitioner shall be reinstated in his services. The petitioner shall also be paid all the subsistence allowance till the date of his joining if not paid already. All the increments should also be granted to the petitioner as the law does not authorize to withhold increment during the suspended period and this law has been settled in a decision reported in (2) 1971 SLR 523 as cited by Mr. Dhole. Withholding of the increment, in my view, tantamounts to one mode of punishment and if this is done without giving any opportunity of being beard or without serving any notice as provided in the Service Rules and such action cannot be said to be valid and lawful. 7. Accordingly, I direct the respondent authorities to grant his usual increment during the suspended period. The writ petitioner shall be reinstated as directed above within a week from the date of communication of this order. 7. Accordingly, I direct the respondent authorities to grant his usual increment during the suspended period. The writ petitioner shall be reinstated as directed above within a week from the date of communication of this order. This order of reinstatement will not however, prevent and prejudice to proceed against the writ petitioner in departmental proceedings in accordance with law. 8. This writ petition is disposed of accordingly. 9. Having regard to the facts and circumstances of this case, there will be no order as to costs. 10. Let the Memo No. 221/P dated 10.3.97 filed in Court be kept with the record. Let a plain copy of the operative portion of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Counsel for the petitioner on usual undertaking.