- (1.) THE petitioner assailed the notice of suspension dated 8th December 2008 issued under Rule 7(2) of the West Bengal Primary Education (Conduct of Service of Teachers of Primary Schools) Rules 2001 for being detained in judicial custody for more than 48 hours in connection with a criminal case initiated under Section 498A/340B of the Indian Penal Code.
(2.) ALTHOUGH the petitioner was paid subsistence allowance during the period of suspension but no disciplinary proceeding was initiated by the concerned authority. In the supplementary affidavit, filed by the petitioner, it is categorically stated that the petitioner has attained the age of superannuation on and from 31st December 2010. According to the petitioner, the order of suspension cannot subsist after attainment of superannuation. This Court had an occasion to consider a similar issue in the case of Asraf Ali -vs- The State of West Bengal & Ors (W.P. 18479 (W) of 2008 decided on 25th January 2011) wherein it has been held that the order of suspension dies its natural death upon attaining the age of superannuation as there exists no relationship of master and servant in these words : -Rule 7(2) of the West Bengal Primary Education (Conduct of Service of Teachers of Primary Schools) Rules 2001 provides that where a teacher is detained in custody for a period exceeding 48 hours on a criminal charge or otherwise he shall be deemed to have been suspended with effect from the date of his detention and shall remain under suspension until further orders. Rule 8 of the said Rules provide the penalties. Rule 9 provides that no penalty shall be made without proper enquiry by an Enquiring authority to be appointed by a disciplinary authority and also without serving show cause notice and giving an opportunity of hearing. Rule 10 provides the action which can be taken by the disciplinary authority. Admittedly, in the instant case no further action has been taken after the order of suspension.
(3.) IN case of Bibhas Chandra Paria -vs- The State of West Bengal & Ors., reported in (2006) 3 Cal LT 490 (HC) this Court deprecates the action of the authorities in keeping an employee under deemed suspension for an indefinite period. The Division Bench in case of Governing Body, Serampore Girls- College & Anr., -vs- Sailendra Nath Paul reported in 2010 (3) CHN (Cal) 746 observed that after issuance of an order of suspension if the employer is allowed to attain the age of superannuation no disciplinary proceeding can be contemplated and/or initiated against the said employee except in case of pecuniary loss. The moment an employee attains the age of superannuation the relation between an master and servant ceases and the employee does not remain an employee amenable to any action taken by the employer. The exception which is curved out to such normal rule is the right of an employer to initiate proceeding for recovery of any loss. Admittedly after the order of suspension nothing has been done by the respondent authorities and allowed the writ petitioner to attain the age of superannuation. The order of suspension, therefore, cannot be made alive and it perishes and dies with natural death and thus no longer survives. The authorities concerned are directed to determine the benefits and all other entitlement of the writ petitioner in accordance with law within a period of 8 weeks from the date of communication of this order.- In view of the above proposition of law, laid down in the above noted case, the order of suspension is liable to be quashed which is hereby quashed and set aside.;