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2005 DIGILAW 390 (CAL)

GOPAL CHAKRABORTY v. STATE OF WEST BENGAL

2005-06-22

P.K.BISWAS, S.K.CHAKRAVARTY

body2005
BISWAS, J. ( 1 ) THIS is an application under Section 19 of the Administrative tribunals Act, 1985 filed at the instance of one Gopal Chakraborty, petitioner herein, praying for quashing/revoking/setting aside of the impugned order of suspension passed against him by the respondent authority, specially by the respondent No. 2 with a further prayer directing the aforesaid respondent to pay to the applicant all the available service benefit during the period of suspension and to re-compute the subsistence allowance and/or allow him to join his duties as Librarian at Barasat Peary Charan Sarkar Govt. High School. ( 2 ) THE short facts leading to the filing of this application are as under :-The applicant joined at the Barasat Peary Charan Sarkar Govt. High school as a Librarian and was confirmed to the said post w. e. f. 3. 12. 1985. On 9. 11. 1994, wife of the applicant lodged a false complaint against the applicant and his parents at Metiabruz Police Station for allegedly torturing her both physically and mentally and also instigating her to commit suicide. On the basis of the aforesaid complaint, Metiabruz Police arrested the applicant on 16. 11. 1994 and took him into police custody and a police Case was started against the applicant being Metiabruz P. S. case No. 306 dated 9. 11. 1994 under Section 498a/406, I. P. C. and under Section 307 of I. RC. The applicant as accused was detained in the judicial custody till 23. 11. 1994. By an order dated 1. 2. 1995, issued by the Director of Public Instruction through its Memo No. 266 (1/5)A dated 1. 2. 1995, the applicant was placed under suspension w. e. f. 17. 11. 1994 pending disciplinary action against him and until further orders for being detained in judicial custody for more than 48 hours interims of Rule 7 (3) of West Bengal Services (Classification, Control and Appeal) Rules 1971 (in short C. C. A. Rules, 1971) and it was also directed that the applicant should get subsistence allowance during the suspension period to the tune of half of his basic pay plus other allowances which were drawn by him prior to his date of suspension. It has further been contended that although the suspension order was issued against the applicant way back on 1. 2. It has further been contended that although the suspension order was issued against the applicant way back on 1. 2. 1995, yet, the concerned authorities have not initiated any departmental proceeding against him and no charge-sheet has also been submitted against him as yet. The applicant therefore, on 17. 12. 1996 submitted a representation to the Head Master, Barasat Govt. High School with a request that he may be paid the enhanced subsistence allowance since he is under suspension for 2 years and the applicant wrote to the D. P. I, for revision of his pay scale and to allow 75% of his new revised pay as his subsistence allowance, but nothing has been done so far by the concerned authorities. It has further been alleged by the applicant that an order of the appropriate Court it was established against him that no prima facie case under Section 307 of I. PC. has been proved against the applicant and his parents, and the complaint under Section 406 of I. P. C. was also earlier withdrawn by his wife. But the learned Court was of the prima facie opinion that the applicant and his parents have committed offences punishable under section 498a of I. P. C. and the said case is still pending for trial and in the mean time the applicant has secured the decree for divorce against his wife from the competent Court in Mat suit No. 48/96 and after that he again submitted another representation to the respondent No. 2 on 11. 10. 1999 to consider his order of suspension and allow him to resume his duties for public interest. Lastly, it has been contended on behalf of the petitioner that since the respondent has not taken any steps to initiate a departmental proceeding against him, there is no reason for continuance of the suspension order against him and it has been contended on behalf of the petitioner that at the present moment, the aforesaid suspension order which may be otherwise good in its inception, yet, for its undue prolongation, this has assumed the character of a panel order and as such the same should not be allowed to be continued. ( 3 ) HENCE, this prayer as mentioned at the outset. ( 3 ) HENCE, this prayer as mentioned at the outset. ( 4 ) THIS application, however, has been opposed by the State respondents by filing a written reply denying therein all the material allegations of the petitioner. ( 5 ) IT has, inter alia, been contended on behalf of the respondent authorities that since the petitioner was detained in judicial custody on and from 17. 11. 1994 to 24. 11. 1994, he was placed under suspension w. e. f. 17. 11. 1994 in terms of provision of the C. C. A. Rules, 1971 and he was allowed to get subsistence allowance and the other allowances during his suspension period. ( 6 ) IT has also been contended on their behalf that the applicant cannot be allowed to join/resume his duties until the case of 498a of i. P. C. is disposed of against him and he is honourably acquitted. With this, they pray for dismissal of this application. ( 7 ) WE have heard learned Counsels appearing for the parties in the connected matter. We have also perused the materials available before us with meticulous care. ( 8 ) IN the instant matter, the petitioner has challenged the formal order of suspension order dated 1. 2. 1995 because of his involvement in a criminal case and for being detained in custody exceeding 48 hours in terms of the provision of 7 (3) of CCA Rules, 1971. ( 9 ) FROM the side of the petitioner, however, it was forcefully contended that although in the suspension order, which was passed way back on 1. 2. 1995 on the aforesaid grounds with clear indication that the petitioner is hereby deemed to have been suspended w. e. f. 17. 11. 1994 pending disciplinary action against him and until further orders, yet, after lapse of almost 10 years, no disciplinary proceeding has been initiated against him and the criminal trial has not also been concluded against him. 2. 1995 on the aforesaid grounds with clear indication that the petitioner is hereby deemed to have been suspended w. e. f. 17. 11. 1994 pending disciplinary action against him and until further orders, yet, after lapse of almost 10 years, no disciplinary proceeding has been initiated against him and the criminal trial has not also been concluded against him. In such view of the fact, it has been contended on behalf of the petitioner that even assuming without admitting the same however that even though the order of suspension might have been good order at its inception, yet, for its undue prolongation it cannot be justified specially, in the circumstances when the authorities concerned have virtually abandoned the idea of initiating/continuing the disciplinary proceeding against the petitioner and it has also been contended on their behalf that it is not un-common, however, that the conclusion of the criminal trial takes a quite long time. ( 10 ) SO, in a situation like this, when there is no specific rule that during the pendency of criminal proceeding which clearly takes a long period, an employee should be kept under suspension for indefinite period, it has been submitted on their behalf that the suspension order by reason for its undue prolongation has assumed the character of a penal order and in any event the same should not be allowed to stand inasmuch as it is quite certain that keeping an employee under suspension beyond a reasonable period of time entails huge financial loss of money inasmuch as the Govt. has to spend the subsistence allowance without getting any work from the employee concerned. ( 11 ) SO, it has been submitted on their behalf that the suspension order should be quashed and the petitioner should be allowed to join forthwith and the available benefits may be granted to him with immediate effect. ( 12 ) THE learned Counsel appearing for the respondent authority, however, in course of his submission has contended that in terms of rule 7 (3)of C. C. A. Rules, 1971 when an employee is detained in custody beyond 48 hours in connection with any criminal case, the authority concerned is under obligation to place him under suspension pending disciplinary action against him and until further orders. But in fact the disciplinary proceeding in the connected matter has not started as yet since the connected criminal trial has not yet been concluded. In such a situation, the petitioner may be directed to pray for review of the suspension order before the authority concerned when necessary order may be passed. ( 13 ) WE have given our anxious consideration with regard to the submissions made by the respective parties before us. ( 14 ) TRUE it is that the formal order of suspension w. e. f. 17. 11. 1994 has been passed against the petitioner because of his involvement in a criminal case and for being detained in custody for a period executing 48 hours in terms of Rule 7 (3) of CCA Rules, 1971 and such order, in our opinion, might have been a good order at its inception, yet, for its undue prolongation the same cannot at all be justified specially for the reason when even after lapse of 10 years or more, the authorities concerned have virtually abandoned the idea for initiating the disciplinary proceeding against the present petitioner. ( 15 ) THERE is also no indication in the pleading of the respondent authorities that they are likely re-commence the disciplinary proceeding in near future and it is also any body's guess as to the fact when the criminal case will be finally concluded. ( 16 ) MOREOVER, by keeping the petitioner under suspension undue mental strain has been put on the petitioner and also payment of a large amount of money from the State Exchequer is also being made without getting any service from the petitioner and further more, in our opinion, the petitioner cannot escape the punishment even from the departmental authority if the result of the criminal case goes against him as after his punishment in the criminal case, the authority concerned can take appropriate action as per service laws. ( 17 ) SO, upon assessing the present case in hand on the basis of the existing settled principle of law, we are of the clear view that the continuation of suspension order further against the petitioner is not at all necessary and accordingly, we are inclined to quash and/or withdraw the same. ( 17 ) SO, upon assessing the present case in hand on the basis of the existing settled principle of law, we are of the clear view that the continuation of suspension order further against the petitioner is not at all necessary and accordingly, we are inclined to quash and/or withdraw the same. ( 18 ) ACCORDINGLY, the suspension order passed against the petitioner is hereby quashed with a direction upon the respondent authorities to allow the petitioner to resume his duties forthwith upon communication of this order. ( 19 ) RESPONDENT authorities are further directed to pay all arrear salaries upto date minus the suspension allowance, if any, already paid to him leaving it open to the authority concerned to consider the feasibility of taking any other action departmentally, if any, when the criminal case is concluded against the petitioner. ( 20 ) WITH this, we dispose of this application. ( 21 ) ACCORDINGLY, the application be and the same is hereby allowed on contest but without costs in the circumstances of the case.