NEPAL CHANDRA DEY Vs. REGISTRAR OF CO OPERATIVE SOCIETIES GOVERNMENT OF WEST BENGAL
LAWS(CAL)-1994-3-3
HIGH COURT OF CALCUTTA
Decided on March 07,1994

NEPAL CHANDRA DEY Appellant
VERSUS
REGISTRAR OF CO-OPERATIVE SOCIETIES, GOVERNMENT OF WEST BENGAL Respondents


Referred Judgements :-

MIHIR KUMAR DAS V. STATE OF WEST BENGAL [REFERRED TO]
OM PRAKASH GUPTA VS. STATE OF UTTAR PRADESH [REFERRED TO]
JAI SHANKER VS. STATE OF RAJASTHAN [REFERRED TO]
CORPORATION OF THE CITY OF NAGPUR CIVIL LINES NAGPUR VS. RAMCHANDRA [REFERRED TO]
JATINDRA NATH MONDAL VS. STATE OF WEST BENGAL [REFERRED TO]
OM PRAKASH KAPOOR VS. UNION OF INDIA [REFERRED TO]


JUDGEMENT

G.R.Bhattacharjee, J. - (1.)The petitioner of this writ petition filed under Article 226 joined service as Inspector of Co-operative Societies, Burdwan Municipal Circle and the Burdwan Range-I on 9-4-77. Whip serving in Burdwan Municipal Circle he was also appointed to act as Administrator of Southend Co-operative Housing Society Ltd. By order dated 10-2-78 the petitioner was transferred from Burdwan Municipal Circle to Kurshiang Development Block. It is the contention of the respondents that the petitioner remained absent from his duties from 2-3-78 without praying for leave or showing any reason and without permission from the Authority. Thereafter a departmental proceeding was started against the petitioner under Memo No. 772 dated 11-1-79. On 12-7-79, Krishna Gopal Bose, Inspector of Co-operative Societies of Burdwan Municipal Circle lodged F.I.R. with police for defalcation of funds and in that connection the petitioner was arrested by the police from Udaypur under Nimta P.S. on 20-5-79 and produced before the S.D.J.M., Barrackpore in connection with the Burdwan P.S. Case No. 53 dated 12-7-79 under section 409 I.P.C. He was in detention in connection with the said case till he was released on bail on 10-9-79. In course of time police submitted charge-sheet against the petitioner under section 409 I.P.C. on the allegation that the petitioner while working as Administrator, Southend Co-operative Housing Society used to draw money from Burdwan Central Co-op. Bank and on different dates through cheques he withdrew a sum of Rs. 17,982/- from Burdwan Central Co-op. Bank but did not deposit that amount in office and misappropriated the same. Accordingly, Special Case No. 6 of 1982 was started and on 21-9-89 the Judge, First Special Court, Burdwan discharged the petitioner accused under section 245 Cr. P.C. holding that there was no prima facie case against the accused. Annexure-C to the writ petition is a copy of that order. It appears from a perusal of the said order that although the prosecution examined some witnesses, it was submitted before the learned Trial Judge on behalf of the prosecution that the case had had been lost and all other relevant papers were not traceable and as such it was futile to examine further witnesses in the case. The learned Trial Judge observed that from the evidence on record it could at best be stated that the accused withdrew some money from Bank but practically there was no evidence of mis-appropriation of money and it had not been established that the accused did not deposit the money as withdrawn by him from Bank in the capacity of Administrator. After his discharge from the case the petitioner made representation for various reliefs including joining duties, payment of salary etc. but to no effect and consequently the petitioner has come up before this court for appropriate relief under Article 226.
(2.)It appears that although there was no formal order of suspension either in connection with the departmental proceeding started against him or in connection with the criminal case and arrest, the Assistant Registrar of Co-operative Societies, as is the case of the respondents, by mistake and misunderstanding informed the learned Special Court that the petitioner was under suspension for along time and his whereabouts were not known to the Directorate. It may be incidentally mentioned here that the departmental proceeding started against the petitioner was is connection with different matters and not in connection with matters pertaining to the police case or for that matter the Special Court case in connection with which he was arrested.
(3.)The main point urged before me on behalf of the respondents is that since there was no formal order of suspension against the petitioner and since the petitioner was absent from duty on and from 2-3-78 without leave or permission and since his whereabouts were also not known or informed, he has ceased to be in Government service. In this connection, 'the respondents relied upon rule 34(2) of the W.B.S.R. Part-I as was applicable at the relevant time. The provisions of sub-odes (1) and (2) of rule 34 are quoted below
"34(l). No Government servant in permanent employ shall be granted leave of any kind for a continuous period exceeding five years ;

(2). Where such a Government servant does not resume duty after remaining on leave for a continuous period of five years or where such a Government servant after the expiry of the leave remains absent from duty, otherwise than on foreign service or on account of suspension, for any period which together with the period of leave granted to him exceeds five years, he shall, unless Government in view of exceptional circumstances of the case otherwise determine be deemed to have resigned and shall accordingly cease to be in Government employment".
As against the contention of the respondents that the petitioner has already automatically ceased to be in service because of his unauthorised absence for more than five years, irrespective of the question of departmental proceeding or discharge from the Special Court case, it is the argument of the learned Advocate for the petitioner that even if there were no formal order of suspension of the petitioner yet under rule 7(3) of the West Bengal Services (classification, control and appeal) Rules, 1971, file petitioner was under 'deemed suspension' from the date of his, arrest by police by reason of his detention in custody for more than 48 hours. The said rule 7(3) runs thus :
"A Government servant who is detained in custody for a period exceeding 48 hours under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or otherwise, shall be deemed to have been suspended, by an order of the appointing authority, with effect from the date of his detention and shall remain under suspension until further orders. It is the contention of the learned Advocate for the petitioner that as soon as a person is detained in custody for more than 48 hours he is automatically placed under 'deemed suspension' without any formal order of the authority concerned and that being so during the continuance of the suspension there was no question of joining duties by the petitioner and therefore there was also no question of his unauthorised absence during the period of his 'deemed suspension'. In this connection he has also relied upon a decision of Chittatosh Mukherjee, J. (as His Lordship then was) in Mihir Kumar Das v. State of West Bengal, 84 CWN 389. It has been held by his Lordship in the said decision that as soon as a Government employee is detained in custody for a period exceeding 48 hours, he is ipso facto placed under suspension. It has further been held that the said suspension does not stand revoked automatically as soon as he is released from custody or acquitted of the criminal charge, but the appointing authority is required to make an order revoking the suspension. That interpretation was warranted in view of the words 'until further orders' as used in rule 7(3) (supra). I therefore uphold the contention of the learned Advocate for the petitioner that since the petitioner was under 'deemed suspension' by reason of his detention for more than 48 hours it cannot be held that the absence was unauthorised absence because the question of his presence to perform duties does not arise during the period of suspension. Moreover, rule 34(2) of the W.B.S.R. Part-I is net attracted where unauthorised absence was not preceded by any leave. The learned Advocate for the respondents however tried to advance an argument that the absence due to suspension will also attract the mischief of rule 34(2) of the W.B.S.R. Part-I. He draws inspiration for this argument from the words 'on account of suspension' as used in the said rule 34(2). He has misunderstood the provisions, I must say. The words 'on account of suspension', it will be seen on a plain reading of the provisions, are qualified by the expression 'otherwise than' preceding the expression 'on foreign service or on account of suspension'. This means that absence from duty for being on foreign service or for being under suspension shall not attract the mischief of rule 34(2). Apart from the plain meaning of the language, there is also a question of plain logic and commonsense in understanding the scope of the said rule 34(2), If suspension could attract the mischief of rule 34(2), in that case the administrative authorities by simply Suspending an employee and allowing the suspension to continue for five years without starting or concluding deliberately any departmental proceeding within that time could easily get rid of an employee by ignoring all norms of natural justice even without asking for show-cause or explanation or without giving necessary opportunity to the employee to meet the charge brought against him, simply by stating that the employee has ceased to be in employment for his being absent from duty for five years due to suspension. This is a preposterous proposition and is violative of, elementary sense of justice and commonsense. In any view of the matter therefore rule 34(2) of the W.B.S.R. Part-I is not attracted to this case. In this connection, we may also take note of the decision of the Supreme Court in Jay Sankar v. State, AIR 1966 SC 492 where it has been held, as it seems, that the removal of a Government servant from service for over-staying his leave without giving him an opportunity of showing cause why he should not be removed is illegal.



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