Gauhati High Court

Nipu Kalita vs The State Of Assam And 4 Ors on 22 April, 2021

Page No.# 1/14

GAHC010028752020

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/853/2020

NIPU KALITA
S/O- LT. JOGEN KALITA, SIVA SHAKTI ENCLAVE, P.S.- HATIGAON, DIST.
KAMRUP, ASSAM.

VERSUS

THE STATE OF ASSAM AND 4 ORS.
REP. BY THE PRINCIPAL SECY. TO THE HOME AND POLITICAL DEPTT.,
GOVT. OF ASSAM, DISPUR, GHY.-06.

2:THE SECY. TO THE GOVT. OF ASSAM
HOME (A) DEPTT.
DISPUR
GHY.-06
ASSAM.

3:THE SECY. TO THE HOME AND POLITICAL DEPTT.
GOVT. OF ASSAM
DISPUR
GHY.-06
ASSAM.

4:THE DIRECTOR GENERAL OF POLICE
GOVT. OF ASSAM
ULUBARI
GHY.-7
ASSAM.

5:DY. COMMISSIONER OF POLICE EAST POLICE
GUWAHATI-06.
Page No.# 2/14

Advocate for the Petitioner : MR I RAFIQUE

Advocate for the Respondent : GA, ASSAM

WP(C)/2409/2020

AJIT SONOWAL
(UNDER SUSPENSION)
S/O LT. GAGAN SONOWAL
R/VILL. KADAM KACHARI
P.O. CHARAI MORIA
P.S. BOGINADI
DIST. LAKHIMPUR
ASSAM
PIN-787032

VERSUS

THE STATE OF ASSAM AND 4 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPTT. DISPUR
GUWAHATI-781006

2:THE JOINT SECRETARY
TO THE GOVT. OF ASSAM
FINANCE (ESTABLISHMENT-B) DEPTT. DISPUR
GUWAHATI-6
3:THE ACCOUNTANT GENERAL
ASSAM
MAIDAMGAON
ASSAM
GUWAHATI-29
BELTOLA
4:THE EXECUTIVE ENGINEER
PHE DIVISION
JAPI SAJIA
NORTH LAKHIMPUR
ASSAM
5:THE DEPUTY COMMISSIONER
LAKHIMPUR
ASSAM
------------
Advocate for : MR. L N DIHINGIA
Page No.# 3/14

Advocate for : SC
P H E appearing for THE STATE OF ASSAM AND 4 ORS.

WP(C)/4399/2020

SHRAWAN KR JHA
S/O LT. SURENDRA JHA
R/O KALIBARI
RAILWAY COLONY
QRT.NO.- DS-11H
P.S. LATASIL
DIST- KAMRUP METRO
ASSAM

VERSUS

THE STATE OF ASSAM AND 4 ORS
REP. BY THE PRINCIPAL SECRETARY TO THE HOME AND POLITICAL
DEPTT.
GOVT. OF ASSAM
DISPUR
ASSAM
GHY-6

2:THE SECRETARY TO THE GOVT. OF ASSAM
HOME (A) DEPARTMENT
DISPUR
ASSAM
GHY-06
3:THE SECRETARY
HOME AND POLITICAL DEPARTMENT
GOVT. OF ASSAM
DISPUR
GHY-6
4:THE DIRECTOR GENERAL OF POLICE
GOVT. OF ASSAM
ULUBARI
GHY-07
5:THE SUPERINTENDENT OF RAILWAY POLICE
ASSAM
PANDU
GUWAHATI-12
------------
Advocate for : MR I RAFIQUE
Advocate for : GA
Page No.# 4/14

ASSAM appearing for THE STATE OF ASSAM AND 4 ORS

WP(C)/5523/2020

AJIT SONOWAL
(UNDER SUSPENSION)
S/O LATE GAGAN SONOWAL

RESIDENT OF VILLAGE KADAM KACHARI
PO CHARAI MORAI
PS BOGINADI
DIST LAKHIMPUR
ASSAM 787032

VERSUS

THE STATE OF ASSAM AND 5 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM. FINANCE DEPARTMENT
DISPUR GUWAHATI 781006

2:THE ADDITIONAL SECRETARY
TO THE GOVT. OF ASSAM
FINANCE(ESTABLISHMENT B) DEPARTMENT
DISPUR
GUWAHATI 781006
3:THE DEPUTY COMMISSIONER
LAKHIMPUR

4:THE ACCOUNTANT GENERAL
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI 29
5:THE EXECUTIVE ENGINEER
PHE DIVISION

JAPI SAJIA
NORTH LAKHIMPUR
ASSAM

6:THE TREASURY OFFICER

LAKHIMPUR TREASURY
LAKHIMPUR
Page No.# 5/14

------------
Advocate for : MR. L N DIHINGIA
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 5 ORS

WP(C)/4239/2020

SANJOY KR JHA
S/O LATE SURENDRA JHA
RESIDENT OF KALIBARI RAILWAY COLONY
QUARTER NO. DS-91/A. PS LATASIL
DIST KAMRUP M ASSAM

VERSUS

THE STATE OF ASSAM AND 4 ORS
TO BE REPRESENTED BY THE PRINCIPAL SECRETARY TO THE HOME AND
POLITICAL DEPARTMENT GOVT. OF ASSAM
DISPUR GUWAHATI 6 ASSAM

2:THE SECRETARY TO THE GOVT. OF ASSAM
HOME(A) DEPARTMENT
DISPUR GUWAHATI 6 ASSAM
3:THE SECRETARY TO THE HOME AND POLITICAL DEPARTMENT
GOVT. OF ASSAM
DISPUR GUWAHATI 6 ASSAM
4:DIRECTOR GENERAL OF POLICE
GOVT. OF ASSAM
ULUBARI
GUWAHATI 7 ASSAM
5:THE DEPUTY COMMISSIONER OF POLICE
ASSAM PANBAZAR
GUWAHATI 01
------------
Advocate for : MR I RAFIQUE
Advocate for : GA
ASSAM appearing for THE STATE OF ASSAM AND 4 ORS
Page No.# 6/14

BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

JUDGMENT

Date : 22-04-2021

All these writ petitions which raise a similar issue with regard to suspension of

Government servant and the need for periodic review of the same are taken up for disposal

at the admission stage itself. This Court has also noted that the respondent authorities have

filed their affidavit-in-opposition in few of the cases with a further submission that the stand

taken in the said affidavit would also cover the rest of the other cases.

2. Before going to the issue which calls for determination, it would be convenient to state the facts of the cases in brief.

3. The petitioner in WP(C)/853/2020 Shri Nipu Kalita is a Police Officer and was posted as SI (UB) in the Dispur Police Station. Vide an order dated 09.02.2019, the petitioner was placed under suspension as he was arrested in connection with Dispur PS Case No.363/2019 under Section 392 IPC. However, the order of suspension dated 09.02.2019 does not provide that the suspension was a deemed one. On the other hand, it provides that the same was done for gross misconduct, negligence and dereliction of duties. Thereafter, the formal charges were framed vide show cause notice dated 06.04.2019 along with a statement of allegation which was replied to by the petitioner which was received on 01.05.2019.

4. The petitioner in WP(C)/2409/2020 Shri Ajit Sonowal was working as an Accounts Officer in the office of the Executive Engineer, North Lakhimpur PHE Division. He was arrested in connection with ACB PS Case No. 15/2019 under Section 7(a) of the Prevention of Corruption Act, 1988. Accordingly, vide the impugned order dated 07.12.2019, he was suspended after he was released on bail from custody. The grievance of the petitioner is that no Departmental Proceeding (DP) has been initiated against him and no review of the Page No.# 7/14

suspension has been done.

5. The petitioner in WP(C)/4239/2020 Shri Sanjay Kr. Jha is a Police Officer and was posted as Constable (UB) at the Panbazar Police Station, Traffic Branch. Vide an order dated 30.04.2020, the petitioner was placed under suspension as he was arrested in connection with Fatasil Ambari PS Case No.169/2020 under Section 188/392 of the IPC. However, the order of suspension dated 30.04.2020 does not provide that the suspension was a deemed one. On the other hand, it provides that the same was done for gross misconduct and dereliction of duties. Thereafter, the formal charges were framed vide show cause notice dated 01.07.2020 along with a statement of allegation which was replied to by the petitioner on 10.07.2020.

6. The petitioner in WP(C)/4399/2020 Shri Shrawan Kumar Jha is an employee of the Assam Police. Vide an order dated 04.02.2020, the petitioner was placed under suspension as he was arrested in connection with GRPS Case No.02/04/2020 under Section 384/34 of the IPC. However, the order of suspension dated 04.02.2020 does not provide that the suspension was a deemed one. On the other hand, it provides that the same was done pending departmental proceeding. Thereafter, the formal charges were framed vide show cause notice dated 04.05.2020 along with a statement of allegation which was replied to by the petitioner on 27.07.2020. It is the case of the petitioner that neither any memo of charge was served within a period of three days nor there was any review of the suspension order.

7. The petitioner in WP(C)/5523/2020 Shri Ajit Sonowal has approached this Court for second occasion by filing this writ petition. As narrated above, while working as an Accounts Officer in the office of the Executive Engineer, North Lakhimpur PHE Division, he was arrested in connection with ACB PS Case No. 15/2019 under Section 7(a) of the Prevention of Corruption Act, 1988. Accordingly, vide an order dated 07.12.2019, he was suspended after he was released on bail from custody. The prolong suspension without any order of review is the subject matter of challenge in the earlier WP(C)/2409/2020 and during the pendency of the said writ petition, a Departmental Proceeding (DP) was initiated against him vide Page No.# 8/14

notification dated 10.08.2020 whereby it was communicated that there was no decision to revoke the suspension order dated 07.12.2019. The petitioner contends that review after expiry of 60 days from the date of suspension is no review in the eye of law and therefore, intervention has been prayed for.

8. I have heard Shri I Rafique, learned counsel for the petitioners in WP(C)/853, 4239, 4399/2020 as well as Shri S Borthakur, learned counsel for the petitioners in WP(C)/2409, 5523/2020. I have also heard Shri D Nath, learned Addl. Senior Government Advocate, Assam and Shri P Nayak, learned Standing Counsel, Finance Department, Assam. The records of the case pertaining to Shri Ajit Sonowal have also been produced in original.

9. The learned counsel for the petitioners have contended that the issue is no longer res integra in view of the categorical determination of the issue by a Division Bench of this Hon'ble Court in the case of Rekibuddin Ahmed Vs. State of Assam in WP(C)/3218/2019. It is contended that the Division Bench was answering a reference on the point -

"Whether in a case covered by Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, the decision of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhury would have automatic application."

10. The Division Bench in paragraph 15 of the said judgment of Rekibuddin Ahmed (supra) held as follows:

" 15. We have consciously applied our mind to the query raised by the learned Single Judge. Though the case of Ajay Kumar Choudhury(Supra) is a case where suspension order was issued pending drawal of Disciplinary Proceeding and not a case of deemed suspension, the observation made by the Hon'ble Supreme Court in paragraph-20 whereby, the analogy of Section 167(2) Cr.P.C., 1973 (sic) has been brought in, we are persuaded to hold that the principles laid down in the said case cannot be restricted to an order of suspension issued only on contemplation of drawal of Disciplinary Proceeding and not for deemed suspension.

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In our view, the issue should be seen from the perspective of the consequence and effect of suspension which is the same in both the cases. We also feel that no prejudice, whatsoever, would be caused to the Department by such interpretation inasmuch as no blanket order of revocation of suspension is passed and it is left to the Department to make periodic review within a period of 3(three) months and decide as to whether such suspension is required to be extended or not by assigning reasons. Whether such reasons are justified and germane can be the subject matter of a separate challenge.

In view of the aforesaid discussion, we answer the reference by holding that the principles laid down in the case of Ajay Kumar Choudhury(Supra) would also be applicable in case of deemed suspension under Section 6(2) of the 1964 Rules."

11. It is contended on behalf of the petitioners that after such determination by a Division Bench, there is hardly any scope for a different interpretation. Therefore, the petitioners contend that the impugned orders of suspension be set aside on the ground of failure to review the same within the specified time.

12. The only controversy, if any, has arisen by the observation of this Court in WP(C)/2409/2020 in the order dated 04.09.2020 which recorded the submission of the learned Standing Counsel, Finance Department that an earlier decision of the Supreme Court in the case of Union of India Vs. Rajiv Kumar, reported in (2003) 6 SCC 516 was not placed before Hon'ble the Supreme Court while deciding the case of Ajay Kumar Choudhury Vs. the Union of India & Anr. , reported in (2015) 7 SCC 291 and in the aforesaid case of Rajiv Kumar (supra), it was held that deemed suspension under the law would remain until it is revoked by the authorities by further orders. The said case of Rajiv Kumar (supra) was in connection with the Central Civil Services Rules.

13. Apart from the fact that the said observation dated 04.09.2020 was at an interlocutory stage, in paragraph 5 of the said order, it is only the submission of the learned Standing Counsel of the Finance Department which has been recorded and there was no finding as such of the Court.

14. When the issue concerning the present writ petitions has been conclusively decided by Page No.# 10/14

a Division Bench of this Court, this Court, as a Single Bench, has no other option but to follow the said decision. In any case, the Division Bench in the case of reference (Rekibuddin) has cited elaborate reasons which are in tune with the judgment of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhury (supra). The Division Bench had also extracted paragraph 20 of the case of Ajay Kumar Choudhury (supra) in the judgment dated 04.10.2019 which reads as follows:

" 20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond period of 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, 1986 (4) SCC 481, and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of the Cr.P.C. 1973 to moderate Suspension Orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Chargesheet has not been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal."

15. Though Shri D Nath, learned Addl. Senior Government Advocate, Assam and Shri P Nayak, learned Standing Counsel, Finance Department had attempted to make an argument that the law laid down by the Division Bench in the case of Rekibuddin Ahmed (supra) may not be the correct interpretation, this Court apart from disagreeing with such contention, is Page No.# 11/14

also left with no scope to take a different view than the Larger Bench. In their attempt to criticize the judgment of a Division Bench before this Court which is the Single Bench, certain case laws were cited which are given below:

1. WA No.3370/2009 (Secretary to Govt., Highways & Minor Ports Vs. SR Venkatesh),

2. 2017 (5) GLT 132 (Indian Institute of Technology Vs. Alok Kumar),

3. AIR 1965 SC 1767 (Bhagawan & Ors. Vs. Ram Chand & Ors.),

4. AIR 2009 Cal 1140 (Bhowanipore Gujarati Education Society & Ors. Vs. Kolkata Municipal Corporation),

5. (1992) IIMLJ 309 (Philip Jeyasingh Vs. Joint Registrar of Co- operative Societies & Ors.),

6. WP(C)/8134/2017, Judgment dated 13.09.2017 (Govt. of NCT of Delhi Vs. Dr. Rishi Anand),

7. WP(C)/19302/2014 (Ramadhar Ram Vs. State of Bihar & Ors.),

8. LPA No. 778/2009 (State of Bihar Vs. Gyan Kumar Ram),

9. WA No.3957/2019 (Director General of Police, Mylapore & Ors. Vs. T Kamarajan),

10. Special Appeal No.576/2019 (Naresh Kumar Vs. State of Uttarakhand),

16. However, in view of the categorical finding of the Division Bench of this Court on the same issue which was specially referred, this Court is not inclined and not even required to Page No.# 12/14

consider the aforesaid case laws.

17. Nevertheless, since a basic distinction has been said to be drawn with the judgment of Ajay Kumar Choudury (supra) by stating that the same did not consider the case of Rajiv Kumar (supra), this Court has noticed that the issue for determination in the case of Rajiv Kumar (supra) was wholly different from the issue which is the subject matter of the present lis. For ready reference, paragraphs 10 and 11 of the case of Rajiv Kumar (supra) is extracted hereinbelow:

" 10. In support of the appeals, learned counsel for the Union of India submitted that if the interpretation put by the High Court is accepted the same would mean addition of words to Rule 10(2). The language used in the said provision is clear and unambiguous and, therefore, there is no scope for making any alteration in the statutory texture. It was further submitted that by accepting the interpretation, Sub-Rule 5(a) of Rule 10 would also be rendered purposeless.

11. Per contra, respondents-employees who appeared in person submitted that the interpretation brings out the true essence of a deeming provision, which cannot be extended beyond the purpose for which it was enacted. On a combined reading of Rules 10(2), 10(3), 10(4) and 10(5)(a) it is claimed for the respondents that the order of suspension in a case covered under Rule 10(2)(a) has limited operation for the period of detention and not beyond it. Further it is submitted that an employee cannot be placed under suspension for an indefinite period of time. Though suspension is not penal in character yet it has serious civil consequences. In the fact till date there has been practically no progress in criminal proceedings and the departmental actions initiated."

18. A reading of the case of Rajiv Kumar (supra) would show that the same has no manner of application with the present lis and was rightly not placed before the Hon'ble Supreme Court while deciding the case of Ajay Kumar Choudhury.

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19. The records of only the case of Shri Ajit Sonowal have been placed before this Court and there is no indication, whatsoever that there was any attempt to make periodic review in accordance with law of the suspension of the petitioners.

20. At the stage, noticing that this Court is not inclined to have a view different from the view of the Division Bench in the case of Rekibuddin Ahmed (supra), a frail submission has been made by Shri Nayak to refer the matters before a Larger Bench. Such submission is wholly without any substance and rather, can be termed as outrageous and in gross defiance of judicial decorum inasmuch as, this Court, as a Single Bench, cannot question the findings of a Larger Bench. In fact, the Hon'ble Supreme Court has laid down that even a decision of a Co-ordinate Bench is binding on another Co-ordinate Bench and only if some major difference in opinion occurs, the Court may refer the matter to Hon'ble the Chief Justice to consider whether the issue needs to be placed before a Larger Bench. In fact, the said exercise has already been performed so far as the present issue is concerned as the judgment in Rekibuddin Ahmed (supra) has been rendered in a reference made by a learned Single Judge in view of conflicting views. The matter having finally put to rest by a conclusive decision by the Division Bench in the judgment dated 04.10.2019, coupled with the fact that the said decision was not put to further challenge and has attained finality, the present objection raised by Shri Nayak, learned Standing Counsel is not only legally untenable but also unethical.

21. In view of the aforesaid facts and circumstances, this Court has no other option but to follow the decision of the Division Bench in the case of Rekibuddin Ahmed (supra). Accordingly, the orders of suspension which are not reviewed within a period of 90 days and where the show cause notice has not been issued are set aside and quashed. This Court would also like to add the observation that no prejudice, whatsoever would be caused to the Department inasmuch as, no blanket order of revocation of suspension is passed and it is left with the Departments to make periodic review within a period of three months and to decide as to whether such suspension is required to be extended by assigning reasons. Further, in Page No.# 14/14

tune with the observation of the Division Bench, this Court is also hasten to add that the respective Departments would be at liberty to transfer the petitioners in any non-sensitive posts.

22. The writ petitions accordingly stand disposed of.

23. The records which pertain to only one case of Shri Ajit Sonowal are returned herewith.

JUDGE

Comparing Assistant