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2009 DIGILAW 777 (CAL)

Debasish Mahato v. State of W. B.

2009-09-23

KISHORE KUMAR PRASAD, PRANAB KUMAR CHATTOPADHYAY

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JUDGMENT Re: CAN 7786 of 2009. 1. This application has been filed in connection with the appeal preferred from the order dated 24th February, 2009 passed by a learned Judge of this Court whereby and whereunder the said learned Judge dismissed the writ petition on merits. 2. In the present case, the appellant herein was placed under suspension under Rule 52 sub-rule (8)(a)(ii) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 since the said appellant was detained in custody for a period exceeding 48 hours as a result of a proceeding on a criminal charge in reference to the Joypur PS Case No. 60 of 2008 dated 23rd September, 2008. 3. Suspension order is generally issued either in contemplation of or during the pendency of the disciplinary proceeding against an employee. Admittedly, in this case, no disciplinary proceeding has been initiated against the appellant on the basis of any chargesheet issued by the competent authority. As a matter of fact, the appellant herein was detained in custody on and from 30th September, 2008 to 31st October, 2008 in connection with a criminal case and long thereafter the respondent No.5 placed him under suspension on and from 21st November, 2008 when he was admittedly enlarged on bail pursuant to the order passed by a competent Criminal Court. The aforesaid order issued by the Block Development Officer, Joypur Development Block (respondent No.5 herein) is set out hereunder: "ORDER Whereas it appears from the deposition made by Sri Debasish Mahato, Executive Assistant, Ghagra Gram Panchayat on the 3rd of November, 2008 to the Pradhan, Ghagra Gram Panchayat as well as affirmation of the same by the report, dtd. 21st November, 2008 from the IO and OC, Baglata I.C. as well as the Inspector-in-Charge, Joypur Police Station in this regard that Sri Debasish Mahata had been placed under judicial custody by the order of the Court of the ld. CJM, Sadar Court, Purulia on and from the 30th September, 2008 to the 31st of October, 2008 and whereby it appears that Sri Debasish Mahata has been detained in custody for a period exceeding 48 (forty eight) hours as a result of a proceeding on a criminal charge in reference to the Joypur Police Station Case No. 60/08, dtd. CJM, Sadar Court, Purulia on and from the 30th September, 2008 to the 31st of October, 2008 and whereby it appears that Sri Debasish Mahata has been detained in custody for a period exceeding 48 (forty eight) hours as a result of a proceeding on a criminal charge in reference to the Joypur Police Station Case No. 60/08, dtd. 23rd of September, 2008 under section 147/148/149/320/326/307/506 of the IPC as well as under sections 25 & 27 of the Arms Act, hence it is hereby ordered to place Sri Debasish Mahata, Executive Assistant of Ghagra Gram Panchayat which is under the jurisdiction of the Joypur Panchayat Samity; under suspension, under Rule 52, sub-Rule (8)(a)(ii) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004. This order of Suspension of Sri Debasish Mahato, Executive Assistant, Ghagra Gram Panchayat takes immediate effect on and from Friday, the 21st of November, 2008 until further order in this regard. Sd/-Illegible Block Development Officer Joypur Development Block & Ex-Officio Executive Officer Joypur Panchayat Samite." 4. In the present case, it has not even been alleged that the appellant herein has committed any offence in the capacity of his official position and undisputedly, the pending criminal case against the appellant has no relation with his employment. 5. The appellant herein was placed under suspension by the Executive Officer, Joypur Panchayat Samiti who invoked his authority under Rule 52 sub-rule (8)(a)(ii) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004. The aforesaid Rule 52 sub-rule 8(a)(ii) is quoted hereunder: "52. (8) (a) The Executive Officer of the Panchayat Samiti, either in pursuance of the recommendation of the Gram Panchayat in terms of clause (c) of sub-rule (1) of Rule 44 or on the basis of any finding obtained otherwise, may place an employee of the Gram Panchayat within his jurisdiction under suspension when- (i).................................. . (ii) he has been detained in custody for a period exceeding forty-eight hours under any law providing for preventive detention or as a result if an proceeding either on a criminal charge or otherwise; or......” 6. In terms of the aforesaid Rule 52 sub-rule (8)(a)(ii) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004, Executive Officer of the concerned Panchayat Samiti may place an employee of the Gram Panchayat within his jurisdiction under suspension. 7. In terms of the aforesaid Rule 52 sub-rule (8)(a)(ii) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004, Executive Officer of the concerned Panchayat Samiti may place an employee of the Gram Panchayat within his jurisdiction under suspension. 7. Therefore, it is not mandatory on the part of the said Executive Officer to place an employee of the Gram Panchayat within his jurisdiction under suspension when the said employee has been detained in custody for a period exceeding 48 hours as a result of a proceeding on a criminal charge. 8. In this case, the employee concerned, viz., the appellant herein has already been enlarged on bail although the criminal case is still pending for final adjudication. The Executive Officer, Joypur Panchayat Samiti, viz., the respondent No.5 herein issued the order of suspension while the said appellant was not actually detained in custody and furthermore, the order of suspension was issued almost a month after release of the said appellant on bail pursuant to an order passed by a competent Criminal Court. 9. Rule 52, sub-rule 8(a)(ii) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 does not contemplate that an employee of a Gram Panchayat in the event of his detention in the custody for a period exceeding 48 hours in connection with a criminal case must be placed under suspension till the disposal of the said criminal case. 10. The learned Single Judge failed to appreciate that the Executive Officer, Joypur Panchayat Samiti, viz, the respondent No.5 herein had no authority and/or jurisdiction to pass the order of suspension in respect of the appellant by taking recourse to Rule 52, sub-rule (8)(a)(ii) of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 on the day when the said appellant was actually not detained in custody and enlarged on bail pursuant to the order passed by the competent Criminal Court. 11. There is no provision either in the West Bengal Panchayat Act, 1973 or in the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004 which authorises an Executive Officer' of a Panchayat Samiti to place an employee of the Gram Panchayat under suspension till the final disposal of a criminal case in relation whereof the said employee was detained earlier in the custody for a period exceeding 48 hours. 12. 12. The identical issue was considered by another Division Bench of this Court in the case of Amit Biswas vs. State of West Bengal & Ors., reported in 2007(2) CRN Pg. 9, wherein it has been held: ''................In this case, as indicated earlier, the employer proceeded, merely because he was in jail custody for more than forty-eight hours, as if it is the law that he should be under suspension till the end of the judicial proceedings......" 13. This Hon'ble Court in various earlier decisions repeatedly held that the moment employee concerned is released from the custody, the concerned authority is bound to take the said employee back in service unless any disciplinary proceeding was initiated on proper ground. 14. In the present case also, no disciplinary proceeding has been initiated against the appellant even after lapse of a considerable period and the impugned suspension order was issued as the appellant was detained in custody on a criminal charge for a period exceeding 48 hours. 15. In the case of Basudev Malik vs. State of West Bengal & Ors., reported in 2004 (1) CHN Pg. 33, this Court while considering the identical issue specifically held that mere pendency of investigation against an employee on a criminal charge is not sufficient for suspending him. The moment the employee concerned will be released from detention by the competent Criminal Court, the suspension will come to an end and the employee concerned should be permitted to join his duty subject to final decision in the criminal case. 16. In the present case, undisputedly, the appellant herein was released on bail on 31st October, 2008 by the competent Criminal Court and, therefore, the said respondent No.5 had no authority and/or jurisdiction to issue the impugned suspension order on 21st November, 2008 after release of the appellant on bail by the competent Criminal Court. 17. For the aforementioned reasons we are of the opinion that the respondent-Executive Officer, Joypur Panchayat Samiti, viz., the respondent No.5 was not justified in issuing the order of suspension to the appellant herein by invoking power under Rule 52 sub-rule (8)(a)(ii) of the West Bengal Panchayat (Gram Panchayat Administration), Rules, 2004 after his enlargement on bail pursuant to the order passed by the competent Criminal Court. 18. 18. For the reasons discussed hereinabove, the impugned order of suspension issued by the respondent No.5 under memo dated 21st November, 2008 cannot be sustained and the same is accordingly quashed. 19. In the aforesaid circumstances, for the identical reasons the order under appeal passed by the learned Single Judge also cannot be sustained and the same is, therefore set aside. 20. The respondent authorities particularly the respondent Nos. 5 and 7 herein are directed to allow the appellant herein to resume his duties forthwith and pay admissible salary and allowances regularly including the back wages for the period during which he was under suspension i.e. on and from 21st November, 2008 till the date of his joining to the post in terms of this order after adjusting the subsistence allowance already paid to the said appellant. The aforesaid back wages is, however, to be paid to the appellant within six weeks from date. 21. This application thus stands allowed. 22. In view of the aforesaid order, no purpose will be served in keeping the appeal pending. 23. Therefore, the appeal is also treated as on day's list and disposed of accordingly. 24. In the facts of the present case, there will be no order as to costs. Pranab Kumar Chattopadhyay & Kishore Kumar Prasad, JJ.: Appeal allowed.