Decided on April 12,1983

STATE Respondents


- (1.) THIS writ petition is moved with notice to the respondents and Mr. Ghose has appeared for the railway respondents. it appears that the petitioner, a Crane Hook Man, was posted at Liluah Workshop of the Eastern Railway. According to the petitioner, on 23rd February, 1982, the petitioner was apprehended by the members of the Railway Protection Force and the petitioner was taken to the Government railway Police Station at Liluah and according to the petitioner a seizure is was prepared showing that an iron Shan was recovered from the possession of the petitioner which belonged to the railway and the petitioner was forced to sign the said seizure list. The petitioner stated in paragraph 10 of the writ petition that on the said allegation, the liluah Railway Police Station started a case against the petitioner under section 3 of the Railway Property (Unlawful possession) Act. The petitioner was thereafter produced before the learned sub-divisional Judicial Magistrate, Howrah, and was ultimately released on bah. It is the admitted case of the petitions that the petitioner has been detained in police custody for more than 48 hoars before he was actually released on bail by the learned Sub-divisional Judicial magistrate. After the said detention was made the Works Manager (M) of the said Liluah Railway Workshop passed an order on 21st March, 1982, stating that as the petitioner was detained in custody for a period exceeding 48 hours, the petitioners should be deemed to have been suspended with effect from the date of detention, namely, 23rd February, 1982, in terms of Rule 5 (2) of the Railway Servants' (Discipline and Appeal)First Amendment Rules, 1980. In the instant writ petition, the petitioner challenges the legality and the validity of the said order of suspension passed against the petitioner under Rule 5 (2) (a)of the Railway Servants' (Discipline and appeal) Rules, 1968. For the purpose of appreciating the, contentions raised by mr. Maitra appearing on behalf of the petitioner, the relevant provisions of rule 5 of the said Rules is set out here under :- "5. Suspension :- (1) A railway, servant may be placed under suspension (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where, in the opinion of the authority competent to place a railway servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the State or (c) where a case against him in respect of any criminal offence, is under investigation, inquiry or trial : (2) A. railway servant shall be deemed to have been placed under suspension by an order of the competent authority :- (a)with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours. "
(2.) IT is contended by Mr. Maitra on behalf of the petitioner that the Railway authorities had no jurisdiction whatsoever to place the petitioner under suspension or to treat the petitioner as if he is deemed to have been suspended under Rule 5 (2) (a) because no criminal charge as contemplated within the meaning of Rule 5 (2) (a) was made against the petitioner. He has contended that the 'criminal charge' as contemplated in Rule 5 (2) (a) will only mean that the police after investigation has filed a formal charge sheet before the criminal court so that there is a formal criminal accusation against' the delinquent railway servant. Mr. Maitra has contended that the expression "otherwise" as appearing in Rule 5 (2) (a)must be governed by the principle of ejusdem generis and us such the order of detention was passed without any authority whatsoever. Mr. Maitra has also contended that detention in 'custody' as appearing in Rule 5 (2) (a) must mead detention in judicial custody ani not detention in police custody. As in the instant case, the petitioner was hot detained in judicial custody for more that 48 hears or for any day, no action under rule 5 (2) (a) can be taken.
(3.) IN support of this contention Mr. Maitra has referred to a decision of this court made in the case of Sunil Kumar ghose vs. The State of West Bengal reported in A. I. R/1970 Cal. 384. In the said decision an offence within the meaning of section 29 of the Police Act, 1861, was taken into consideration for the purpose of deciding as to whether or not the defence under section 29 is a criminal charge. The learned Judge has held that abviously an offence under section 29 of the Police Act, namely, violation of duty or willful breach or neglect of any lawful order is not a charge of an offence included in the Indian Penal Code which constitutes the general law of crimes in the country but the said offence under section 29 of the Police Act is an offence created by a special statute, namely the police Act, to be met with by a statutory penalty. This court has held in the said decision that the dictionary meaning of the word 'charge' in the legal sense is 'accusation'. 'criminal charge' therefore, would mean accusation of a 'crime'. The dictionary meaning of the word 'crime' again is an 'act punishable by law' (Shorter Oxford Dictionary ). To punish means to 'inflict penalty on an offender'. If these dictionary meanings prevail, any offence which is created by any statute and is punishable by any penalty imposed thereby would be included within the concept of a 'criminal charge'. In my view, the aforesaid decision does not in any way help the petitioner. On the contrary it supports the contention that if an accusation is made for which a person is liable to be penalized under any law of the country then in law a charge is constituted. It is not necessary to consider whether a formal charge sheet has either been submitted by the police or the learned Magistrate has framed a formal charge. There is no manner of doubt that an accusation was made against the petitioner for unlawfully possessing a railway property and on the said charge of possessing unlawfully railway property, the petitioner was arrested by the police and was detained in police custody for more than 48 hours until the petitioner was released on ball by the learned Magistrate. In my view, the contention of Mr. Maitra that for the purpose of giving effect to Rule 5 (2) (a), the delinquent officer must be detained in judicial custody cannot be accepted. It has nowhere been state in rule 5 (2) (a) that for the purpose of enforcing Rule 5 (2) (a), the delinquent officer is required to be detained in judicial custody and not in any other custody. Both the police custody and the judicial custody are authorized in law and if a person is lawfully detained in police custody, in my view, Rule 5 (2) (a) is applicable.;

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