D.N.Sinha, J. - (1.) The facts in this case are shortly as follows: The petitioner was employed as a Sub-Inspector of Police under the Commissioner of Police, Calcutta. While he was attached to the Bankshall Court South, as one of the Police Prosecutors, a charge-sheet was drawn up against the petitioner by the Assistant Commissioner of Police, Arms Act Department on a charge of gross misconduct, with the approval of the Deputy Commissioner of Police. He was found guilty of the charges and dismissed from service with effect from nth November, 1957. The petitioner thereupon, made an application to this Court tinder Article 226 of the Constitution. A rule was issued being C. R. No. 2791 of 1960. The rule came up for hearing before me on the 10th December 1962 and was made absolute, on the ground that the petitioner's appointing authority was the Commissioner of Police and the charge-sheet which was issued by the Deputy Commissioner of Police and the proceedings and thereunder were invalid. Thereupon on the 5th April, 1963 the Commissioner of Police passed the following order: "In view of the orders passed by Hon'ble Mr. Justice D. N. Sinha of the Calcutta High Court in Civil Rule No. 2751 of 1960 the order of dismissal of Sub-Inspector Satkari Chatterji of H.Q,F. with effect from nth November 1957 passed in H.Q.F. D.O. No. 759 dtaed 15-11-57 is hereby cancelled. He is posted to R.F. from the date of dismissal and should continue to remain under suspension with, same subsistence allowance and Dearness Allowance with effect from the same data i.e. 11-11-57."
(2.) Upto now, no fresh charge-sheet has been issued against the petitioner. In this application, the petitioner has taken only one ground namely, that the order of suspension with retrospective effect is bad in law and should be declared void. Mr. Das on behalf of the respondent does not dispute that the order, in so far as it is retrospective is bad, but argues that it is good prospectively as and from the date of making of the order namely, 5th April, 1963. Mr. Banerjee appearing on behalf of the petitioner has contested this proposition and cited several decisions which I shall now proceed to consider.
(3.) The first decision cited is of the Court of Appeal presided over by Chakravartti, C. J.--Hemanta Kumar Bhattacharjee v. S. N, Mukherjee. In that case the facts were as follows: The appellant was an employee in the Posts and Telegraph Department. In September, 1950 he was holding the post of Sub-Post Master of the Mission Row Post Office. On 22nd September, 1950 he was arrested on charges under Sections 261, 262, 263 and 409 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act as also other charges. Following his arrest he was placed under suspension. The appellant moved this Court under Article 226" of the Constitution against the continuance of the suspension under the order dated 5-9-50. By order dated 13th March, 1952 Bose, J. (as he then was) made the rule absolute and directed the respondent in that case to forbear from giving effect to the order of suspension dated 5-9-50. On the 4th April, 1952 a Special Bench of this Court quashed the criminal proceedings pending against the appellant before the Sub-Judge and directed him to be retried in accordance with the law. On the 29th April, 1952 two orders were passed by the Superintendent of Pest Offices, South Calcutta. By one of them, the appellant was released from suspension and reinstated as clerk of the Park Street Post Office with effect from 13-10-50, By the second order, he was placed under suspension with effect from 16-1-51 pending investigation into his conduct. Against this retrospective order of suspension the appellant again applied to the High Court under Article 226 of the Constitution. Chakravartti, C. J. said as follows: "Thus the basic idea underlying the root word 'suspend' and all its derivatives is that a person, while holding an office and performing its functions or holding a position or privilege, should be interrupted in doing so and debarred for the time being from further functioning in the office or holding the position or privilege. He is intercepted in the exercise of his functions or his enjoyment of the privilege and put aside, as it were, for a time, excluded during the period from his functions or privileges. Such being the concept of a suspension order, suspension with retrospective effect is a contradiction in terms. The antecedent period which an order of suspension with retrospective effect might be intended to cover, would ordinarily be a period during which the person concerned had already performed the duties of his office or held the relevant position. There can be no meaning in suspending a man from working during a period when the period is past and he has already worked or suspending a man from occupying a position or holding a privilege in. the past when he has already occupied or held it. The result is that the order of suspension, made on the 29th April, 1952, is valid and effective as on and from that date which was in fact not questioned before us but as purporting to cover the period from the 16th January, 1951, up to the 28th April, 1952, it is unwarranted by law and wholly invalid." ;