PROBODH CHANDRA GHOSE Vs. EXECUTIVE ENGINEER CANALS DIVISION

JUDGEMENT

(1.) The petitioner has come up before me for the second time. The facts are briefly as follows : He was appointed as a ticket checker in the Calcutta Canals Sub-Division under the Executive Engineer Canals Division, Irrigation Departmerit of the Government of Bengal. At the relevant moment he had been promoted to the post of a sub-divisional clerk. On 27-7-1949 he was placed under suspension. Thereafter a departmental enquiry was instituted and on 23-2-1953 he was discharged from service. On 3-8-1953 he made an application to this court under Art. 226 of the Constitution challenging the order of his discharge and a Rule was issued. That Rule was heard and decided by me on 10-5-1954. I ordered that the Rule was to be made absolute and the order of discharge dated 23-2-1953 passed by the Executive Engineer, Canals Division, was set aside and/or quashed and a writ in the nature of mandamus was issued directing the respondents to forbear from giving effect to it, I then proceeded to say as follows : "The result is that the petitioner will be put in a position as if the order of discharge had not been made. The authorities will now proceed in accordance with law."

(2.) This decision has been reported : - 'Probodh Chandra v. Executive Engineer, Canals Division', On 1-7-1954 the Executive Engineer, Canals Division, informed the petitioner that "He was under suspension and will be treated as under suspension from the date of discharge on 23-2-53 by High Court's order referred to in his petition dated 20-5-54". Thereafter, a show cause notice was again served upon the petitioner and an order of dismissal has been subsequently made. This Rule was" issued on 22-12-1954 upon the opposite parties to show cause why a writ in the nature of Mandamus and/or Certiorari should not issue, directing them not to give effect to the order dated 1-7-1954 or 15-7-1954. The alleged order of 15-7-1954 is a communication by the Executive Engineer, Canals Division, to the S. D. O. Irrigation, Calcutta Canals Sub-Division. The operative portion is as follows:

(3.) It will thus appear that in accordance with the order dated 1-7-1954 the petitioner was to be treated as under suspension from 23-2-1953 when he was originally discharged from service, which order of dismissal has subsequently been found to be illegal and set aside. In the communication dated 15-7-1954 the position is taken that the order of discharge having been set aside, the original order of suspension remained. Therefore, the short point is as to whether if an order imposing a penalty is set aside, then was it necessary to pass a further order of suspension, or whether the original order of suspension continues to be in operation. It is argued that an order which is found to be illegal is no order in the eye of law and therefore the original order of suspension, cannot be affected by such an illegal order. The point however has now been set at rest by a judgment of the Supreme Court. - 'Omprokash Gupta v. State of Uttar Pradesh', In that case, there were departmental proceedings and an order of suspension pending the proceedings. This was followed by an order of dismissal, wtoich was subsequently found to be Illegal and set aside. The question arose as to whether the original suspension order continued to existe. '''The learned Attorney General advanced the very same argument that has been advanced before me now, namely, that in view of the decision that the dismissal was illegal, the order of dismissal must be regarded as a nullity and non-existent in the eye of law. Consequently, the order of suspension remained operative.