HEMANTA KUMAR BHATTACHARJEE Vs. S N MUKHERJEE

JUDGEMENT

(1.) The only question debated in this appeal is whether the Central Government has power to suspend one of its employees, belonging to a subordinate service, with effect from a prior date. By the judgment appealed from, Bose, J. answered that question in the affirmative.

(2.) The facts are as follows: The Appallant Hemanta Kumar Bhattacharjee is an employee in the Posts and Telegraphs Department of the Government of India. In September, 1950, he was holding the post of Sub-Post-Master of the Mission Row Post Office, situated at p-13, Mission Bow in the town of Calcutta. On 2-9-1950, he was arrested on, charges under Sections 261, 262, 263 and 409, Penal Code and Section 5(2), Prevention of Corruption Act, as also a general charge of conspiracy under Section 120B, Penal Code, read, with the provisions under which the specific charges were laid. Following his arrest, he was placed under suspension by a letter, dated 5-9-1950, with effect from the 2nd September preceding when he had been arrested. The criminal proceeding started against him went on for some time, but he was ultimately discharged by an order of the Chief Presidency Magistrate, passed on 13-10-1950. His suspension, however, continued. On 16-1-1951, he was re-summoned by the Chief Presidency Magistrate on the same charges as previously laid and therealter by a Notification of the West Bengal Government, dated 1-2-1951, the case against him was allotted to the Court of a Special Judge. The Appellant then moved this Court under Article 226, Constitution of India against the continuance of his suspension under the order of 5-9-1950 and by an order, dated 13-3-1952, Bose, J. directed the respondents in that case to "forbear from giving effect to the order of suspension, dated 5-9-1950 or keeping the petitioner under suspension by virtue of that order." The respondents were the Union of India and the Superintendent of Post Offices, South Calcutta Division. The order was made on the basis that as scon as the Appellant was discharged on 13-10-1950, the order of suspension, passed on 5-9-1950, had spent its force. The Appellant was not, however, re-instated forthwith, nor was any fresh order of suspension then passed. On 4-4-1952, a Special Bench, of this Court quashed the criminal proceedings pending against the Appellant before the Special Judge and directed him to be re-tried in accordance with law. That order was made on the ground that the Act under which the case was being tried by the Special Judge was, as regards its material provisions, void. Thereafter, on 29-4-1952, two separate Memoranda, bearing the same number, were issued to the Appellant over the signature of the Respondent, the Superintendent of Post Offices, South Calcutta Division. By one of them, the Appellant was "released from suspension and re-instated as cleark" of the Park Street Town Sub-Office with effect from 13-10-1950. By the second order, he was placed under suspension with effect from 16-1-1951, pending investigation into his conduct. The present appeal is concerned with the validity of the latter order, so far as it covers the period between 16-1-1951 and 28-4-1952, both inclusive.

(3.) It is regrettable that the Postal Department could not make a simple order of suspension without committing three mistakes. Two of them were subsequently corrected by two memoranda, dated 9-5-1952, but the third, a curious one, remains. It has been seen that by the first order passed on 29-4-1952, the Appellant was re-instated, as a clerk of the Park Street Sub-office with effect from 13-10-1950. If he was to be suspended again with effect from any subsequent date, he could be suspended only in the capacity and under the description of such clerk. Yet, the second order of 29-4-1952, purported to suspend him with effect from 16-1-1951, as "Sub Post Master, Mission Row P. O., Calcutta." On 16-1-1951, there was no Hemanta Kumar Bhattacharjee, Sub-Pest Msster, Mission Row, so that, strictly speaking, by suspending a Sub-Post Master of that name with effect from 16-1-1951, the second order of 29-4-1952 suspended nobody. The error, however, is of no importance, as the Appellant understood the order as made against him and moved this Court against it.