NEMAI CHAND BANERJEE Vs. UNION OF INDIA
LAWS(CAL)-1960-7-6
HIGH COURT OF CALCUTTA
Decided on July 12,1960

NEMAI CHAND BANERJEE Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) THE facts in this case are shortly as follows: in 1920 the petitioner was appointed in the Eastern Railway in a subordinate service. In 1950 the petitioner was confirmed in Class II service. In November, 1954, the petitioner was promoted by the General Manager to officiate in the Senior Scale Class I Service, which was subsequently approved by the Public Service Commission. In March, 1957 the petitioner was transferred to Kanchrapara. On the 28th April 1958 the General Manager issued an order of suspension in contemplation of a departmental proceeding. a copy whereof is annexure "a" to the petition. In that order it was stated that the petitioner was placed under suspension with effect from 28-4-58 on charges detailed in a certain confidential communication dated 28-4-58. The charge sheet is included in Annexure "a" at page 8. It contains four charges. This charge-sheet was on the footing that the General Manager was the competent authority to charge and punish the petitioner. Against this action of the General Manager the petitioner moved this Court and a Rule was issued being C. R. No. 2451 of 1958 and further proceedings were stayed. On the 31st October, 1958 the petitioner reached his age of superannuation and retired from the employment of Railway. On the 13th May, 1959, the Rule was disposed of by my judgment of that date. I held that while officiating in a post belonging to the Senior Scale Class I Service, the General Manager was not the punishing authority and therefore could not issue a charge sheet, but that under the Rules it was the Railway Board which was the punishing authority and therefore a charge sheet could only be issued by the Railway Board. I therefore made that Rule absolute and the charge sheet issued and the proceedings held by virtue thereof, by the General Manager were quashed and set aside. I further said that if the authorities so wish, they could continue the departmental proceedings by issuing a proper charge-sheet by the proper authority and thereafter continue the departmental proceedings in accordance with law.
(2.) ON the 4th June, 1959, the Railway Board has issued a charge sheet and an order of suspension. The charges are practically the same as before, with certain variations, copies thereof are Annexures "c" to the Petition. On the 31st July, 1959, the petitioner has been informed that the enquiry will be held and on the 18th August, 1959, he came to this Court and this Rule was issued. The point taken herein is a very short one. It is conceded that after a person has attained his age of superannuation and retired, no order of dismissal can be made and no departmental proceedings can be had, unless it is authorised by the Rules. Previously, the Rules did not contain this provision and it was held that after retirement neither can departmental proceedings continue, nor orders of dismissal made. Now a Rule has been introduced, viz. Rule No. 2046 (4) in the Indian Railway Establishment Code, Vol. II, page 22. The relevant Rule is as follows: "2046 (1 ). Except as otherwise provided in the other clauses of this rule, the date of compulsory retirement of the Railway servants other than a ministerial servant is the date on which he attains the age of 55 years. He may be retained in service after the date of compulsory retirement with the sanction of the competent authority on public grounds which must be recorded in writing but he must not be retained after the age of (50 years except in very special circumstances. (4) Notwithstanding anything contained in Clauses (1), (2) and (3) a railway servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the date of compulsory retirement but shall be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by a competent authority. "
(3.) IT is obvious that the petitioner having attained the age of 55 must be taken to have retired from the 1st November, 1958, unless clause (4) applies. The first thing about notice under clause (4) is that it contemplates a departmental enquiry and provides for it. The words "charge" or "misconduct" or "competent authority" must therefore be construed in the back-ground of the fact that they all relate to a departmental enquiry. In the case of criminal trials the matter is dealt with elsewhere, namely, in Appendix XXXI. Keeping this in mind, it seems that the meaning of clause (4) is quite clear. If a charge is made of misconduct, and there is suspension in contemplation of the enquiry, then the employee should not escape the enquiry or the consequences thereof, if in the meantime he arrives at the age of superannuation. But the Rule itself makes it clear that there must be a charge of misconduct and a suspension based on such a charge. The existence of a charge of misconduct is essential. In this particular case, I held that the General Manager, who did make a charge of misconduct and followed it up by an order of suspension, had no jurisdiction to make any such charge, and the charge-sheet issued by him was struck down. I left the point open as to whether the suspension order was valid. Whether the general Manager, as the original appointing authority, could pass an order of suspension is a question of difficulty, but this is clear that he could not make a charge of misconduct. If the word "charge" is to be taken as a process included in a departmental proceeding, it follows that while the petitioner enjoyed an officiating post in Class 1, the General Manager would no longer have anything to do with the departmental enquiry in respect of the petitioner. That was the responsibility of the Railway Board. In fact, it has now been recognised, because after my judgment the Railway Board has issued a charge-sheet charging the petitioner with misconduct and has also issued an order of suspension. The question therefore is as to whether on the 31st October, 1958 the petitioner was under suspension on a charge of misconduct. The only charge of misconduct which in fact existed was contained in a charge-sheet issued by the General Manager, which has been struck down. Whether independently of that charge-sheet there could exist a charge, it is not fruitful to enquire. Upon the facts of this case, there could exist no charge independently of the charge-sheet, which, as I have pointed out, has been struck down. Therefore, it must be held that on that date, the petitioner was not under suspension on a charge of misconduct, because the so-called charge that was made has been found to be incompetent and void. Assuming that the General Manager was in any way competent to suspend, that could only be in contemplation of the competent authority putting forward a charge of misconduct. If that charge of misconduct by a competent authority took place before the date of superannuation, then there would be no difficulty. It so happened however, that the charge of misconduct made by the competent authority came long after the petitioner ceasing to be in the employment of the Railway.;


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