Calcutta High Court (Appellete Side)
Raja Mohan Sil vs State Of West Bengal And Ors on 19 July, 2023
19.07.2023
Item No.61
gd/ssd
FMA/706/2022
IA NO: CAN/1/2022
RAJA MOHAN SIL
VS
STATE OF WEST BENGAL AND ORS.
Mr. Mitul Chakraborty,
Mr. Ramjan Kali,
Ms. Mili Saha,
Ms. Payel Nath
..for the Appellant.
Mr. Pinaki Dhole,
Mr. Avishek Prasad
..for the State.
The appellant is aggrieved by the order dated
2nd February, 2022. The appellant was a primary
school teacher. He was arrested by the police on 23rd
July, 2015 in connection with Pandua Police Station
Case No.468/15 dated 23rd July, 2015 under Sections
341/323/326/307/506 IPC and Section 3(I)(X) of the
SC/ST (Prevention of Atrocities) Act, 1989 and was
detained in jail custody for more than 48 hours.
The grievance of the appellant appears to be
that though he was enlarged on bail by the learned
court on 4th September, 2015, he was not permitted to
resume his duty and he had also not received his
subsistence allowance. During the period of
suspension the appellant attained his normal age of
superannuation.
2
It appears that before the learned Single
Judge State respondents had filed report wherefrom it
appears that the criminal case against the appellant
was pending consideration till that date.
Learned Single Judge has recorded that
though the petitioner was placed under suspension in
the year 2016 and he claims that he was never paid the
subsistence allowance in terms of the order of
suspension but it does not appear from the records that
the petitioner ever approached the concerned authority
for payment of his subsistence allowance. However,
the petitioner disclosed a letter addressed to the
District Inspector of Schools on 27th April, 2016 with a
prayer for releasing his subsistence allowance. The
disbursing authority of the salary of the petitioner is
the District Primary School Council and the District
Inspector of Schools did not have a role to play with
regard to the payment of subsistence allowance of the
petitioner in terms of the order of suspension. As
regards the prayer of the petitioner for permitting him
to join his duty on being enlarged on bail. The learned
Single Judge had taken note of the decision of the
Hon'ble Supreme Court in the matter of Union of India
v. Rajiv Kumar reported in (2003) 6 SCC 516 where the
expression "until further orders" fell for consideration.
The Court categorically held that the order of
suspension does not lose its efficacy and is not
automatically terminated the moment the period of
detention comes to an end and the person is set at
large.
The learned Single Judge has also relied upon
a Division Bench judgment of this court in the matter
of Birbhum District Primary School Council & Another v.
Md. Mokhtar Hossain & Others reported in 2009 (1)
CHN 476 where Hon'ble Division Bench had
categorically held that merely because a suspension
that commenced under the legal fiction in Rule 7(2) of
the 2001 Rules continues for a long period would not
invalidate the suspension or lead to any conclusion
that the duration of the suspension stipulated in that
Rule is still the release of the primary teacher from
detention. To infer that the sub Rule discontinues the
suspension on cessation of detention would be to plant
words therein and imply casus omissus when there is
no case of strong necessity to presume the inadvertence
in drafting of the sub-Rule.
It was having regard to such facts and
circumstances of the case and the law laid down in this
regard, a direction was given to the petitioner to
approach the District Primary School Council, Hooghly
by filing comprehensive representation annexing all
documents in his support.
It appears that the appellant instead of
approaching the District Primary School Council had
made a representation to the District Inspector of
Schools on 27th April, 2016 for releasing of subsistence
allowance.
It appears that he has not received his
subsistence allowance during the period of
superannuation and he retired while he was under
suspension.
It is not in dispute that the appellant is
entitled to subsistence allowance during suspension.
It has been submitted on behalf of the
appellant that he has not received the subsistence
allowance in full for the aforesaid period.
In the event any amount is due towards
subsistence allowance, the same should be immediately
released by the District Primary School Council,
Hooghly. The application filed before the District
Inspector of Schools on 27th April, 2016 shall be
immediately forwarded to the District Primary School
Council, Hooghly for consideration. In addition to the
said representation, the appellant shall approach the
District Primary School Council, Hooghly by filing
comprehensive representation annexing all documents
in his support both in respect of remaining subsistence
allowance and his reinstatement after he was enlarged
on bail. In deciding the representation the District
Primary School Council shall take into consideration
that the offence alleged is no way connected with his
employment and also his conduct during his
employment as admittedly no disciplinary proceeding
was initiated against the appellant during his
employment.
The order of the learned Single Judge is
modified to the aforesaid extent. Other directions in
the order shall remain unaltered.
The appeal and the application are disposed of
with the aforesaid direction.
There shall, however, be no order as to costs.
(SOUMEN SEN, J.)
(UDAY KUMAR, J.)
