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2000 DIGILAW 151 (CAL)

State of West Bengal v. Hari Ramalu

2000-03-28

MAHEMMAD HABEEB SHAMS ANSARI, S.B.Sinha

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Judgment S.B. Sinha, J. This writ application at the instance of the State of West Bengal is directed against an order dated 14.5.99 passed by the Central Administrative Tribunal, Calcutta Bench, in O.A. No. 92 of 1998 whereby and whereunder the original application filed by the respondent No.1 herein was allowed. The basic fact of the matter is not in dispute. 2. The respondent No.1 herein was placed under suspension by an order dated 9.9.94. He was a member of the Indian Administrative Service. A police case bearing No. 58 of 1994 of Durgachak Police Station, District Midnapore was started against him on the basis of a first information report lodged on 28.8.94, whereupon investigation of a criminal case being in progress against the respondent No.1, the aforementioned order of suspension was passed. Admittedly, upon completion of investigation, a charge sheet was submitted which led to a trial of the respondent No.1 herein by the 6th Additional Sessions Judge, Midnapore, in S.T.R. Case No. VIII of February 1996 on a charge framed under sections 302 and 201 of the Indian Penal Code. The trial ended in acquittal. 3. An appeal has been filed against the said order of acquittal in terms of sub-section (1) of section 378 of the Code of Criminal Procedure by the appellants herein. 4. The only question which arises for consideration is as to whether in view of pendency of the aforementioned appeal, sub-rule (3) of Rule 3 of All India Services (Discipline and Appeal) Rules, 1969, shall be applicable in the instant case. Sub-rule (3) of Rule 3 of the said Rules reads thus: "(3) A member of the Service in respect of, or against, whom an investigation, inquiry or trial relating to a criminal charge is pending may, at the discretion of the Government be placed under suspension until the termination of all proceedings relating to that charge if the charge is connected with his position as a member of the Service or is likely to embarrass him in the discharge of his duties or involves moral turpitude." 5. Rule 3 of 1969 Rules provides for suspension. Sub-rule (1) envisages an order of suspension against a person when a disciplinary proceedings are contemplated or are pending. Rule 3 of 1969 Rules provides for suspension. Sub-rule (1) envisages an order of suspension against a person when a disciplinary proceedings are contemplated or are pending. Sub-rule (2) of Rule 3 envisages a situation where a deemed order of suspension is passed when an employee concerned is detained in official custody whether on a criminal charge or otherwise for a period longer than forty-eight hours. Sub-rule (4) of Rule 3 provides that a member of Service shall be deemed to have been suspended with effect from the date of conviction for a criminal offence. 6. The words "inquiry" and "investigation" have been defined in sections 2(g) and 2(h) of the Code of Criminal Procedure thus: '(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; (h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;' 7. So far as a trial is concerned, in our opinion, the same comes to an end as soon as a judgment is pronounced interns of section 353 of the Code of Criminal Procedure. An appeal against a judgment of acquittal cannot be said to be a continuation of trial within the meaning of sub-rule (3) of Rule 3 of the said Rules. 8. Mr. Nigam Chakraborty, learned counsel appearing on behalf of the petitioners, however, submits that having regard to the fact that the respondent No.1 is a member of All India Service, his continuation of the office is likely to embarrass him in the discharge of his duties. Learned counsel further submits that an order of suspension would continue until the termination of all proceedings relating to the charge. 9. An order of suspension can be passed or deemed to have been passed only if the conditions laid down in the relevant provisions of the statute are satisfied. Although suspension is not a punishment, but by reason thereof, a concerned employee would only be entitled to the amount of subsistence allowance in place and stead of his salary. It is now a well settled principles of law that a person cannot be placed under suspension unless there exists a statutory provision therefor. Although suspension is not a punishment, but by reason thereof, a concerned employee would only be entitled to the amount of subsistence allowance in place and stead of his salary. It is now a well settled principles of law that a person cannot be placed under suspension unless there exists a statutory provision therefor. Of course, an employer may have an inherent right to suspend an employee by not taking any work from him, but in that event, he will have to pay the entire salary to the employee concerned. It may be noticed that where a person is placed under suspension, a civil or evil consequence ensue, inasmuch as, during the period of suspension the concerned employee would be entitled only to the subsistence allowance. In this view of the matter, we are of the opinion that sub-rule (3) of Rule 3 must be construed strictly, and thus, as a person can be kept under suspension only during pendency of enquiry, investigation or trial, as soon as the same comes to an end, the order of suspension also comes to an end therewith. 10. The submission of Mr. Chakraborty to the effect that pendency of the appeal against acquittal will amount to continuation of the proceedings; cannot be accepted. Continuation of the proceedings must relate to investigation, enquiry or trial, and such investigation, enquiry or trial, if any, have come to an end with the judgment of acquittal. The same being continuing in the instant case, is misconceived, only on the ground that an appeal there against is pending. If the respondent No.1 is convicted by the Appeal Court for commission of a criminal offence, sub-rule (4) of Rule 3 of the said Rules would be attracted. Keeping in view the fact that different sub-rules of Rule 3 operate in different fields, we are of the opinion that sub-rule (3) of Rule 3 be held to be operative only in the case namely, when an investigation, enquiry or trial remains pending and not or when the employee person is acquitted. The situations obtaining under different sub-rule being absolutely different, in our opinion, sub-rule (3) of Rule 3 must be given a restrictive interpretation. 11. For the reasons aforementioned, we are of the opinion that the learned Tribunal was correct in passing the impugned order. The situations obtaining under different sub-rule being absolutely different, in our opinion, sub-rule (3) of Rule 3 must be given a restrictive interpretation. 11. For the reasons aforementioned, we are of the opinion that the learned Tribunal was correct in passing the impugned order. There is no merit in this writ application, which is accordingly dismissed, but in the facts and circumstances, there will be no order as to costs. 12. Prayer for stay of the operation of the order is considered and refused. 13. Xerox certified copy of the order be supplied on priority basis. M.H.S. Ansari, J.: I agree. Writ application dismissed.