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2011 DIGILAW 323 (CAL)

Mithun Saha v. The State of West Bengal

2011-03-07

HARISH TANDAN

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JUDGMENT: HARISH TANDON, J. A short but interesting question of law is involved in this writ application. The point involved herein is whether an order of suspension under Rule 7(2) of the West Bengal Primary Education (Conduct of Service of Teachers of Primary Schools) Rules 2001 (hereinafter referred as 2001 Rule) is liable to be recalled the moment the employee is enlarged on bail. Before dealing with the question as stated the brief fact of this writ application, as emerges is that the petitioner was appointed as the primary school teacher. The petitioner was arrested on the basis of a complaint lodged by his wife under section 498A of the Indian Penal Code 1860 and was detained in custody for more than a month. Rule 7(2) of the said rules of 2001 postulates a deemed suspension to be operative until further orders. The writ petitioner has challenged the said order of suspension issued by invoking the said rule on the ground that a criminal case leading to arrest of the writ petitioner does not relate to the course of his official duty or his place of work and is not relateble thereto and as such is liable to be quashed. Mr. Sabir Ahamed, learned Advocate appearing for the petitioner submits that rule 7(2) of the said Rule of 2001 relates to a deemed suspension in the event an employee is detained in prison for more than 48 hours and such order of suspension has a life until further orders. He further submits that the meaning of word “until further orders”, came up for consideration before this court in case of Basudev Malik Vs. State of WB & Ors. reported in 2004 (1) CHN 32 , where it has been held that the moment an employee is enlarged on bail, the deemed suspension comes to an end and the employee should be permitted to join his duty subject to the final decision in the criminal case. State of WB & Ors. reported in 2004 (1) CHN 32 , where it has been held that the moment an employee is enlarged on bail, the deemed suspension comes to an end and the employee should be permitted to join his duty subject to the final decision in the criminal case. He further submits that if the criminal case initiated on the basis of a charge-sheet leveled against the employee does not relate to an offence against a person or property of an employer, co-employee, in course of employment, at the place of employment or in connection with the employment of the employee, the employee cannot be put under the suspension and reliance was placed upon the Division Bench judgment of this court in case of Amit Biswas Vs. State of WB & Ors. reported in 2007 (2) CHN 9 . Mr. Amalesh Roy, learned Advocate appearing for the respondent council submits that the order of deemed suspension cannot be revoked, quashed or set aside on the employee being enlarged on bail. He further submits that the judgment of Basudev Malik (supra) was considered in case of Birbhum District Primary School Council & Ors. Vs. Md. Mokhtar Hossain reported in 2009 (1) CHN 76 and the Division Bench after considering the various judgments of this court as well as of the Supreme Court has rendered the decision of the Basudev Malik being contrary to law. He further argues that after the employee being put under suspension there must be either a departmental proceeding initiated or must be contemplated even if there is a criminal case pending before the court and relies upon a judgment of this court in case of Mr. Bibhas Chandra Paria Vs. The State of WB & Ors., reported in (2006) 3 CLT 490 (HC). Mr. Roy further relies upon a judgment of the Supreme Court in case of Union of India Vs. Rajiv Kumar reported in AIR 2003 SC 2917 to the principle that if the provision contains that the order of deemed suspension would be operative “until further orders” the same does not lead to an inference that it would come to an end the moment the employee is enlarged on bail but requires a fresh deliberation by an employer either to put the employee under suspension or to set aside and/or quash the order of suspension. Having considered the submission made by the learned Advocates, it is undisputed that the petitioner was detained in custody on the basis of a complaint made by his wife under section 498A of the IPC. The criminal case has been started and have not been decided finally as yet. Rule 7(2) of the 2001 Rule envisaged that the moment an employee is detained in custody for more than 48 hours in connection the criminal charges, he shall be deemed to have been suspended with effect from the date of his detention until further orders. The word “until further orders” has been interpreted by the Supreme Court in case of Rajiv Kumar (supra) to mean that the order of suspension shall remain in force until the same is revoked or modified or continued. The judgment rendered by the apex court in case of Rajiv Kumar (supra) was considered in case of Birbhum District Primary School Council supra) where the Division Bench observed : “17. The substance of the relevant provision in the Rajiv Kumar case is akin, if not identical, to Rule 7(2) of the 2001 Rules. The suspension that comes into effect by the legal fiction of the deeming provision under such sub-rule continues unabated till a further order in that regard is made. That further order is an order to be made by the appointing authority and not any order that may be passed in connection with the criminal proceedings or the order of detention. The appointing authority may choose not to issue any further order, which would imply that the order of suspension would continue, or the appointing authority may modify the order of suspension; or altogether revoke the same. The appointing authority can take any of the three courses of action and the rule recognises the same. The inaction or action on the part of the appointing authority may, however, fall for scrutiny or judicial review.” Thus the first contention that the order of deemed suspension shall automatically come to an end, the moment the person is enlarged on bail, is not correct. There is another argument which has been advanced that after the order of deemed suspension the authorities have not initiated or contemplated any disciplinary proceeding as yet. There is another argument which has been advanced that after the order of deemed suspension the authorities have not initiated or contemplated any disciplinary proceeding as yet. Thus the challenge is made to the order of suspension on the ground that an employee cannot be put under suspension for an indefinite period or in other words, the order of suspension cannot be prolonged for all time to come. There is substance in such submission. It is no doubt true that the order of deemed suspension like the other suspension order passed on making an enquiry on detention in prison for more than 48 hours, is liable to be reviewed and/or reconsidered by the authority. The deemed suspension cannot be prolonged for an indefinite period by the authority concerned as the employee is being deprived of his full salary but are provided a subsistence allowance which is a lesser amount to what he is entitled to. There is another aspect which should be considered by an employer while continuing the order of suspension – a nature of criminal offence. As has been held in case of Amit Biswas (supra) that the charges must relate to the place of employment, in connection with the employment or relating to a moral turpitude if the charges which does not satisfy either of the situations and unconnected with employment the same cannot be a ground to put the employee under suspension for a prolonged period. On the basis of the discussion made above, the authorities are statutorily bound to take decision whether to continue the order of suspension or to revoke or modify the same and cannot keep the writ petitioner under suspension for an indefinite period. The writ petitioner is directed to make an application to the concerned authority for consideration as to whether the order of suspension should be stretched any further or be revoked or set aside. It is however made clear that the authority shall be free to take a decision in accordance with law without being influenced by any of the observations made in this appeal. Such application be made within two weeks from date. The authority shall dispose of the same within 6 weeks therefrom and shall communicate the decision within a week therefrom to the writ petitioner. The writ application is disposed of. However, there shall be no order as to costs.