SURYA KUMAR CHATTERJEE Vs. S N BANERJEE

JUDGEMENT

(1.) The petitioners before me are two clerks employed in the Mission Row Post Office (subordinate service). It appears that on 5th of September 1950, a memorandum was issued by the Superintendent of Post Office, South Calcutta Division, to the following effect:

(2.) It will thus appear that three officials in cluding the petitioners had been charged with certain offences and had been arrested by the police. By this memorandum, they were placed under sus pension. These persons were sent up for trial before the Chief Presidency Magistrate, but all of them were discharged on 13-10-1950. On 24-6-1953, they were served with summons to appear before the Special Judge Sri B. C. Ghosh, Special Court. Criminal Jurisdiction, Calcutta, to answer various charges. One of the accused, Hemanta Kumar Bhattacharjee, made an applica tion to this High Court challenging the jurisdiction of the Special Judge. He also made an applica tion challenging the order of his suspension. In respect of the first application, it was held by a Special Bench consisting of the learned Chief Justice Sir Arthur Trevor Harries, Das and Das Gupta JJ. that the Special Judge had no juris diction. With regard to the second application, the matter was decided by Bose J., -- 'Hemanta Kumar v. N. N. Sen Gupta'. The learned Judge considered regulations 17 and 21 of the general regulation contained in the Posts and Telegraphs Manual, Vol. II, and came to the conclusion that the order of suspension was made under regulation 21(e)(iii) and as the petitioner Hemanta Kumar Bhattacharjee was not then in police custody or undergoing imprisonment this suspension order could not be supported. As regards regulation 17, the learned Judge held that there was no evidence that investigations were continuing. The postal authorities were directed to forbear from giving effect to the order of suspension dated the 5th of September 1950 or keeping the petitioner under suspension by virtue of that order. It is unnecessary for me to consider the other facts which had taken place in respect of the criminal action against the petitioners. It is admitted that they are neither under arrest nor undergoing imprisonment although the proceedings are still pending. In fact, they have not been under arrest nor have they been in prison since the first arrest mentioned above which gave rise to the memorandum dated 5-9-1950. So far as the decision of Bose J. mentioned above is concerned, it appears that the attention of the learned Judge was not drawn to the fact that the rules contained in the general regulations, Vol. II of the Posts and Telegraphs Manual are not statutory rules but are merely departmental instructions. This appears from the preface which runs as follows:

(3.) A servant of Government against whom a criminal charge or a proceeding for arrest for debt in pending should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisoned (e.g., whilst released on bail), if the charge made of proceeding taken against him is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and allowances, the provisions of paragraph 1 shall apply."