SISIR KUMAR CHATTOPADHAYA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN these two Rules the petitioners have challenged an order bearing reference No. D. O. D. 215 dated the 21st march 1972 passed by the Superintendent of Police Midnapore placing the petitioners under suspension with effect from the 18th March, 1972. It is alleged that some incidents took place at about 01. 30 hours in the night of February 2/3, 1972 at Puratan Bazar brothel area, kharagpur, in which the two petitioners were involved in acts of indiscipline. It further appears that there was a local enquiry made by the Inspector-in-charge of the Kharagpur Police Station in respect of the above incidents on the basis of an order passed in the matter and the said officer submitted a report on february 20, 1972. On this report the suspension order mentioned above was passed by the Superintendent of Police and there was a further order directing the Additional Superintendent to draw up proceedings against the petitioners. The petitioners were served with the said suspension order on the 24th march, 1972, and on 29th March 1972 the two petitioners moved two petitions under Article 226 (1) of the constitution challenging the order of suspension referred to above. It was contended that the said order of suspension was issued without any charge-sheet and there was no pending enquiry when the impugned order was issued. The petitioners contended that 0the impugned order of suspension was an order of substantive punishment without complying with the provisions of Article 311 (2) of the Constitution, and was therefore illegal and void. The said order was also bad as retrospective effect was sought to be given to the said order in that though the order was. signed on March 21, 1972 it was expressly stated to have taken effect from the march 18, 1972. There was a further ground that no charge-sheet was issued nor any proceeding initiated prior to the issue of the impugned order and accordingly, the order was bad in law. On these two applications two Rules were issued on the March 29, 1972 calling upon the respondents to show cause why a Writ in the nature of mandamus should not issue directing the respondents to forbear them from giving effect to the said orders and also why a Writ in the nature of Certiorari should not issue for the purpose of quashing the same.

(2.) THE above Rules were opposed by the respondents who filed affidavits-in-opposition to the same and it was stated that the order of suspension was not bad as the same was effective on and from the date of its service on the petitioners. It was further stated that the departmental proceeding No. 9 of 1972 arising there from was also valid being in accordance with the provisions of the Police Regulations, Bengal. It was also stated that the order of suspension was pending enquiry and was not a substantive punishment as contended. For all these reasons it was submitted that the petitions should be rejected.

(3.) THERE were affidavits-in-reply by the petitioners reiterating the allegations made in the petitions. Supplementary in-affidavits-in-opposition affirmed on the september 1, 1972 were filed on the september 4, 1972 and it was stated therein that as the order could not be served before March 21, 1972, the order of suspension was to be deemed to have taken effect from the said elate of service.