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TMI Blog1953 (8) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 952 and the subsequent orders forthwith and to forbear from giving any effect to them. Bose, J. who issued the Rule, heard it himself and after hearing the parties, discharged it. The points taken before him were that the action of the Respondent in making the order of suspension after the previous order had been set aside, was mala fide, that it was also in excess of his powers in so far as it was made with retrospective effect and purported to keep the Appellant under suspension for more than fifteen days and, further, that it was bad, inasmuch as it reduced the Appellant in rank without giving him an opportunity to show cause aginst the action proposed to be taken against him. The la t point was not pressed after the learned Judge had pointed out that whether thrre had in fact been any reduction in rank, was not too clear and that the question could not be satisfactorily determined on affidavits in the proceedings before him. On the other two points, the learned Judge held against the Appellant and discharged the Rule, as already stated. Thereupon, the present appeal was preferred. 5. The only point urged in the appeal was that no order of suspension with retrospective eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because all that this Court quashed was the trial by the Special Judge. A retrial in accordance with law was expressly ordered and is still due to take place, although we were informed that no further steps for a retrial had so far been taken. It was accordingly conceded before us on behalf of the Appellant that no exception could be taken to the order of suspension in so far as it operated on and from 29-4-1952, when it was actually made. All that was contended was that no effect could be given to it from any earlier date. 9. The Appellant's reasoning was the converse of that adopted by Bose, J. Mr. Mukherjee, who appeared for him, submitted that no order of suspension could be made with retrospective effect unless there was an express power in the rules to do so, but since there was none in the present case, the order, so far as it purported to operate from 16-1-1951, was bad. Mr. Mitra who appeared for the Respondent, did not contend that a power to suspend with retrospective effect was implicit in the power of suspension, but claimed that such power had been expressly conferred by Rule 2 of Section 4 of Appendix 3 to the Fundamental Rules. 10. Before Bose, J., the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IV, formerly combined under one class, compendiously called the 'Subordinate Services'. There is no dispute that the Appellant is a member of a subordinate service. We were next referred to Rule 44 which delegates the power to make regarding, 'inter alia' conditions of service' in respect of the Central Services, Classes III and IV, to the Government under whose administrative control a particular service may be. The service to which the Appellant belongs is under the administrative control of the Government of India. The next rule referred to was Rule 54 which makes a similar delegation of the power to make rules, prescribing the penalties that may be imposed on members of the Central Services, Classes in and IV. It was then pointed out that in exercise of the powers conferred by Rules 44 and 54 of the Civil Service (Classification, Control and Appeal) Rules, the Governor-General in Council had framed rules relating to appointments, penalties and appeals of subordinate staff , as notified by the Home Department Notification, No. F-9-19/30, Ests. dated 27-2-1932 and amended from time to time and that Rule 3 of those rules, which related to penalties, provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its validity could not be affected even if it was made after the period had commenced. The power to suspend 'during the period' it was contended, had been given in general terms and it clearly covered the power to place an employee under suspension during a period of the specified kind by an order made with retrospective effect. (13) I find myself unable to accept that contention. The rule gives the Government only a power of suspension and nothing more. According to the Oxford Dictionary, 'Suspension' means action of debarring or state of being debarred, specially for a time, frorn a function or privilege : temporary deprivation of one's office or position ; or again, state of being temporarily kept from doing or deprived of something. Similarly, to suspend means to debar usually for a time, from the exercise of a function or a privilege: specially to deprive (temporarily) of one's office ; or again, to interdict. 'Suspended' means temporarily deprived of office, position or privilege ; or again, intermitted. Thus, the basic idea underlying the root word; 'suspend' and all its derivatives is that a person, while hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n effectively cover the whole of such period as is referred to in the Rule only when it is made before the period has commenced or at the time it commences. In other cases, it can be made and can operate only as respects that portion of the period which commences at its own date and lies after it. 14. In my reading of Rule 2, its framers took the same view. According to the Rule, in regard to the pay and allowances of an employee suspended under its provisions, the provisions of Rule 1 (called 'Para. 1') shall apply. Rule 1 debars a suspended employee from drawing, during the period of his suspension, any pay and allowances other than a subsistence allowance permissible under the Civil Service Regulations. Under Articles. 193 and 193-A of those Regulations, the subsistence allowance is limited to leave salary on the basis of leave on half-pay or half average pay during the first year of suspension and thereafter to three-quarters of such amount. It is thus considerably less than the full pay. Rule 1 further provides that when the matter which caused the suspension is finally decided, an adjustment of the allowances for the period of suspension shall be made and the full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose is it required. How untenable is the view that an order of suspension can be made with retrospective effect will appear if certain possibilities are considered. If such an order can at all be made, it must be possible and legal to make it in all circumstances. Suppose a criminal charge is brought against an employee by a third party in respect of offences involving moral turpitude and he is ultimately sentenced to a fine or to a short period of imprisonment which he serves out when the office is closed for holidays without the employer coming to know of the proceeding during its pendency. If the employer comes to know of the proceeding years afterwards, it will be absurd to say that he can then pass an order of suspension with retrospective effect. Only little less but still absurd and practically impossible is an order of suspension with retrospective effect when the employer comes to know of the proceeding after it has been pending for sometime. In both cases, it would mean wiping out work already done and treating as non-existent a period of actual service which may have-already been taken into account for various purposes such as leave and promotion. 16. It is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not place him under suspension during it retrospectively, for, to do so would be to suspend him, when the status from which he was intended to be suspended had already been held by him and when there was nothing except the future occupation of his office from which he could be suspended. It is to be remembered that the mere institution and pendency of a criminal proceeding does not bring about an automatic suspension under Rule 2. The Officer concerned is required to be placed under suspension by the issue of specific orders and it cannot therefore be said that the order of 29-4-1952 was only a formal order, incorporating and placing on record a consequence which had otherwise ensued under the law. Nor can it be said that the Respondent was only regularising his previous order, for, that order having caused to be of effect on 13-10-1950 and being incapable of affecting any period subsequent thereto, the Respondent could not retrospectively convert a subsequent period, during which the Appellant had been kept from his office, into a period of suspension merely by substituting a fresh order for the previous order, under the pretended authority of which he had acted or by givi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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