TMI Blog1962 (11) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... s promoted to the post of an upper division assistant and ultimately on May 1, 1953 he was appointed superintendent in the office of the Excise Commissioner, Shillong. He was born on January 1, 1906 and was due to superannuate on attaining the age of 55 from January 1, 1961. It appears that the respondent applied for leave preparatory to retirement for four months from September 1, 1960. He did not however actually go on leave till December 22, 1960 on which date an order of suspension was passed against him as per notification No. 4/60/42 which was in the following terms : Shri P. R. Borah, Superintendent of the office of the Commissioner of Excise, Assam is placed under suspension with effect from the date of this order till departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from the 1st April, 1961 or till the disposal of the departmental proceedings, whichever is earlier. On May 23, 1961 the respondent moved the High Court of Assam by means of a petition under Arts. 226 and 227 of the Constitution. In this petition the respondent impugned the two orders passed by the appellant on January 6, 1961 and May 9, 1961 as being orders which were without jurisdiction. The claim off the respondent was that he ceased to be an employee of the appellant with effect from January, 1961 and was not amenable to any departmental proceedings thereafter. The respondent further pleaded that the appellant had no. authority to extend the period of his service retrospectively after his retirement had already taken effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 1 (SB) at pp. 9 and 10 the High Court further held that : on the mere possibility of the continuance of the disciplinary proceedings the extension of service of the respondent could not be regarded as on public grounds within the meaning of rule 56. The High Court also said that no. previous sanction was taken from the State Government and no. proposals were put up before the Government asking for its sanction for the retention in service of the respondent. The High Court accordingly allowed the writ petition and directed the appellant - Government not to give effect to the order dated May 9, 1961. 3. The appellant moved this court for special leave and having obtained such leave has preferred this appeal from the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice P. B. Mukharji in 1961 AIR(Cal) 1 (SB) do not correctly interpret the rule and proceed on A wrong assumption that to be in service can only mean that the Government servant concerned must be doing or performing the duties of his office. It is pointed out that the order of suspension passed on December 22, 1960 itself connotes that the respondent was to continue in service till departmental proceedings to be drawn up against him were finalised. The order of suspension, it is argued, means continuance in service though the incumbent who is under suspension may not perform any of the duties of his office. 6. These contentions of learned counsel for the appellant appear to us to be not without some force. But in the view which we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disposal of the departmental proceedings, whichever is earlier, for retaining the respondent in service. The period of three months fixed by this order expired on March 31, 1961. Thus the effect of the order of January 6, 1961 was that the service of the respondent would come to an end on March 31, 1961 unless the departmental proceedings were disposed of at a date earlier than March 31, 1961. It is admitted that the departmental proceedings were not concluded before March 31, 1961. The clear effect of the order of January 6, 1961 therefore was that the service of the respondent came to an end on March 31, 1961. This was so not because retirement was automatic but because the State Government had itself fixed the date up to which the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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