Gauhati High Court
Phulendra Kalita vs The State Of Assam And 3 Ors on 10 November, 2021
Page No.# 1/4
GAHC010183612021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5858/2021
PHULENDRA KALITA
S/O. LT. KASHINATH KALITA, INSPECTOR OF SCHOOL, BARPETA (LAST
PLACE OF POSTING), R/O. VILL. JYOTINAGAR, P.S. AND P.O. PATSHALA,
DIST. BARPETA, ASSAM, PIN-781325.
VERSUS
THE STATE OF ASSAM AND 3 ORS
REP. BY THE SECRETARY, TO THE GOVT. OF ASSAM, DEPTT., OF
SECONDARY EDUCATION, BLOCK-C, ASSAM CIVIL SECRETARIAT,
JANATA BHAWAN, DISPUR, GUWAHATI, ASSAM, PIN-781006.
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
DEPTT.
OF SECONDARY EDUCATION
BLOCK-C
ASSAM CIVIL SECRETARIAT
JANATA BHAWAN
DISPUR
GUWAHATI
ASSAM
PIN-781006.
3:THE ADDL. SECRETARY
TO THE GOVT. OF ASSAM
DEPTT.
OF SECONDARY EDUCATION
BLOCK-C
ASSAM CIVIL SECRETARIAT
JANATA BHAWAN
DISPUR
GUWAHATI
ASSAM
PIN-781006.
Page No.# 2/4
4:THE SPECIAL COMMISSIONER
TO THE GOVT. OF ASSAM
DEPTT.
OF SECONDARY EDUCATION
BLOCK-C
ASSAM CIVIL SECRETARIAT
JANATA BHAWAN
DISPUR
GUWAHATI
ASSAM
PIN-781006
Advocate for the Petitioner : MR. A K DUTTA
Advocate for the Respondent : SC, SEC. EDU.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
O R D E R
10.11.2021
Heard Mr. B Purkayastha, learned counsel for the petitioner and Mr. SMT
Chisti, learned counsel for the respondents in the Secondary Education
Department of the Government of Assam.
2. An FIR dated 25.06.2016 was lodged in respect of ACB PS Case No.
07/2016 against the petitioner, who is an Inspector of Schools, u/s
7/13(10(d)/13(2) of the Prevention of Corruption Act, 1988. The petitioner was
earlier taken into custody pursuant to the aforesaid police case and was granted
bail u/s 439 CrPC. As the petitioner was in custody beyond 48 hours, he was
deemed to have been suspended under Rule 6(2) of the Assam Services
(Discipline and Appeal) Rules, 1964 (in short Rules of 1964). A show cause
notice under Rule 9 of the Rules of 1964 was also issued to the petitioner and
the departmental proceeding thereof is still pending. By an order dated
11.02.2019, the deemed suspension of the petitioner stood revoked and he was
reinstated in service.
Page No.# 3/4
3. The trial proceeding pursuant to ACB PS Case No. 07/2016, being Special
Case No. 15/2017 in the Court of the learned Special Judge, Guwahati, resulted
in the judgment and order dated 20.12.2020, whereby the petitioner was
convicted and sentenced to an imprisonment for four years. After the conviction
and sentence, the petitioner was again taken into custody on 20.12.2020 and
was subsequently released on bail by an order of this Court dated 04.06.2021.
4. Accordingly, it has to be understood that from 20.12.2020 up to
04.06.2021, the petitioner was again in custody. The grievance raised in this
writ petition is that even after being released on bail, the petitioner is not being
allowed to discharge his duties. In the aforesaid factual situation, where the
petitioner was again detained in custody for a period exceeding 48 hours, we
find no reason as to why a deemed suspension under Rule 6(2) of the Rules of
1964 would not be applicable in case of the petitioner.
5. Rule 6(2) of the Rules of 1964 provides that when a Government servant
who is detained in custody, whether on a criminal charge or otherwise, for a
period exceeding forty-eight hours, he shall be deemed to have been suspended
with effect from the date of such detention.
6. The earlier deemed suspension of the petitioner under Rule 6(2) of the
Rules of 1964 may have been on the criminal charge against him pursuant to
the ACB PS Case No. 07/2016 which was revoked by the later order dated
11.02.2019, but the subsequent event of the petitioner being taken into custody
after his conviction and sentencing would also be a detention in custody
exceeding 48 hours on a criminal charge or otherwise. On the event of the
petitioner being in custody exceeding 48 hours on a reason 'otherwise', which is
on being convicted, the deemed suspension by operation of law under Rule 6(2)
of the Rules of 1964 became operative against the petitioner.
Page No.# 4/4
7. From such point of view, we cannot find any infirmity on the part of the
respondents in not allowing the petitioner to resume his service. In the
circumstance, the remedy available for the petitioner would be to invoke the
proviso to Rule 6(2) of the Rules of 1964. In the meantime, as the petitioner
had been released from custody, the remedy available would be to invoke the
proviso to Rule 6(2) of the Rules of 1964 and require the appointing authority to
take a decision as to whether the detention of the petitioner is on account of
any charge not connected with his position as a Government servant or
continuance in office is not likely to embarrass the Government or the
Government Servant, or the charge does not involve moral turpitude and
accordingly to take a decision as to whether the order of deemed suspension
requires to be vacated.
8. It is stated that at present the Principal Secretary to the Government of
Assam in the Secondary Education Department would be the appointing
authority of the petitioner. Accordingly, the Principal Secretary to the
Government of Assam in the Secondary Education Department is directed to
verify the records, take a decision as required under the proviso to Rule 6(2) of
the Rules of 1964 as to whether the subsequent deemed suspension of the
petitioner requires to be vacated in the facts and circumstances of the case.
9. The requirement of passing the reasoned order be done within a period of
fifteen days from the date of receipt of a certified copy of this order.
The writ petition is disposed of in the above terms.
JUDGE
Comparing Assistant
