JUDGMENT
Tapen Sen, J.
1. In this writ petition prayer inter alia is for issuance of a writ of mandamus, commanding upon the respondents to set aside the order of suspension dated 17.10.1996 as contained in Annexure P 2 as well as for issuance of a writ of mandamus, commanding the respondents to pay arrears of salary after adjusting the subsistence allowance that has been paid together with interest thereon at the rate of 12% per annum. The short facts which are necessary to be taken into consideration are that while the petitioner was working as an Upper Division Assistant in the Institute of Local Government and Urban Studies, he was arrested on 6.9.1996 in connection with South Bidhannagore Police Station Case No. 129 dated 6.9.1996 under Section 381/409/120B IPC. Thereafter, on 19.9.2006, the petitioner was enlarged on bail by an order passed by the learned Sessions Judge at Barasat, North 24-Parganas in Criminal Misc. Case No. 3304 of 1996. The aforementioned order, granting bail, is Annexure P 1. After the aforementioned order, the petitioner sent letters on 20.9.1996 (running page 19) and 14.10.1996 (running page 20) addressed to the respondent No. 4 wherein he requested that he may be allowed to join his duties.
2. On 17.10.1996, the Joint Director (respondent No. 5) passed the impugned order as contained in Annexure P 2 wherein, taking into consideration the fact that the petitioner had been taken into custody on 6.9.1996 and also, the fact that lie remained therein for more than 48 hours, proceeded to place the petitioner under suspension with effect from the date of his arrest under the provisions of Rule 7(3) of the West Bengal Services (Classification, Control and Appeal) Rules, 1971 read with sub-para (2) of Memo No. 206/MA/P/C-11/2P-3/96 dated 14.10.1996 issued by the Deputy Secretary, Department of Municipal Affairs, Government of West Bengal. The petitioner has made various statements to the effect that he has filed representation and that he has incurred huge sums of money towards medical expenses and also, that he has filed a representation for enhancement of subsistence allowance. He has also stated that he has written a letter on 23.2.2006 through his Advocate and the same has been replied vide letter dated 22.5.2006 informing, inter alia, that the department/office has sought for legal advice in the matter and that the office will lake appropriate action based on such legal advice.
3. Learned Counsel relies upon a judgment of this Court passed in the case of Chhabi Chakraborty v. State of West Bengal and Ors. reported in 2006 (1) CHN 34, wherein it has been held that an employee cannot be kept under suspension with retrospective effect for an indefinite period of time and that the employer also cannot adopt dilatory tactics to victimize the employee.
4. In the instant case, the order of suspension was passed on 17.10.1996 retrospectively placing the petitioner under suspension with effect from 6.9.1996. 10 (ten) years have passed this month on 6.9.2006. The respondents have not yet taken any decision in relation to the petitioner.
5. Under such circumstances, the action of the respondents is held to be clearly violative of Article 21 of the Constitution of India as well as in violation of the right of a person to speedy remedy. Under such circumstances, this Court therefore has no option but to hold that the order of suspension passed 10 years ago and no action having taken thereafter by the employers, the said order of suspension tantamounts to imposition of penalty. In this context, the observations of the learned Single Judge in the aforementioned case of Chhabi Chakraborty made in paragraph 12 is worth considering. The same reads as under:
The Hon’ble Apex Court in the judgment of Rajib Kumar (supra) examined the provisions of Rule 10 with its sub-rules and got satisfied that the same is not unconstitutional. Here, the Rule is not under challenge and I have not been called upon to decide as to whether the said Rule 7(2) has its Constitutional validity or not. The expression ‘life’ doesn’t merely connote animal existence or a continued drudgery through life. The expression ‘life’ has a much wider meaning. Suspension of such type without any limitation and without departmental proceedings prima facie tantamounts to imposition of penalty which cannot be done without following the principles of fair play and natural justice.
6. For the foregoing reasons, the impugned order of suspension dated 17.10.1996 as contained in Annexure P 2 is-hereby set aside and quashed. The respondents are directed to allow the petitioner to join his duties and to pay him his salary etc. after adjusting the amount of subsistence allowance that may have been paid to him.
7. Since this Court has held that the said order becomes illegal for the reasons stated above, this order will be confined only to the extent it relates to the order of suspension. However, in the event of the petitioner being found guilty in the criminal case, the authorities will then have liberty to proceed against the petitioner afresh but strictly in accordance with law and procedure.
8. The writ petition is allowed with the aforementioned observations and directions. No order as to costs.
9. Urgent xeroxed certified copy of this order, if applied for, be supplied expeditiously, as per usual terms and conditions.