Laksheswar Pathak vs The State Of Assam And 2 Ors
2021 Latest Caselaw 3214 Gua

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GAHC010158602021




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

                              Case No. : WP(C)/5174/2021

           LAKSHESWAR PATHAK
           S/O- LT. RABINDRA NATH PATHAK, VILL- CHENGA, (BAR CHENGA), P.S.
           TARABARI, DIST.- BARPETA, ASSAM



           VERSUS

           THE STATE OF ASSAM AND 2 ORS
           REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, ANIMAL
           HUSBANDRY AND VETERINARY DEPTT., DISPUR, GHY-06

           2:THE DIRECTOR OF ANIMAL HUSBANDRY AND VETERINARY DEPTT.
           ASSAM
            CHENIKUTHI
            GHY-03

           3:THE DISTRICT ANIMAL HUSBANDRY AND VETERINARY OFFICER
            BARPETA
            P.O. AND DIST.- BARPETA
           ASSA

Advocate for the Petitioner : MR. R ALI
Advocate for the Respondent : GA, ASSAM




                                 BEFORE
                HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                          ORDER

30.11.2021 Heard Shri H.A. Ahmed, learned counsel for the petitioner. Also heard Shri D. Borah, Page No.# 2/3

learned State Counsel.

2. Considering the subject matter of dispute and the settled law in this field, the writ petition is taken up for disposal at the admission stage.

3. An order of suspension dated 09.06.2017 is the subject matter of challenge in the writ petition. The petitioner, who is a Junior Assistant in the Office of the District Animal Husbandry and Veterinary Officer, Barpeta was arrested on 02.06.2017 in connection with an FIR dated 02.06.2017 leading to registration of Tarabari P.S. Case No. 168/2017 under Section 498(A) / 302 / 34 IPC by invoking the provisions of Rule 6(2) of the Assam (Discipline and Appeal) Rules, 1964. The petitioner was placed under suspension vide the impugned order dated 09.06.2017 as he was in custody for more than 48 hours.

4. It is the case of the petitioner that after release on bail on 29.08.2017, he had submitted a representation for revoking the order of suspension with a prayer to reinstate him but no action was taken. The further case of the petitioner is that in the charge sheet submitted after investigation of the police case, the petitioner was not sent up for trial. On the other hand, the suspension from service continues and is operating till date.

5. The learned counsel for the petitioner has submitted that no periodic review was done to come to a satisfaction regarding continuation of the suspension order as which has been held to be mandatory by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India and Anr. reported in (2015) 7 SCC 291. The learned counsel has also placed reliance upon the case of Rakibuddin Ahmed Vs. State of Assam & Ors. reported in 2019 (5) GLT 600 in which the Hon'ble Division Bench of this Court while answering a reference had held that the ratio laid down in the case of Ajay Kumar Choudhary (Supra) would also be applicable to a case of deemed suspension. The learned counsel submits that the charge itself is a perverse one as unauthorized absence is for a period when the petitioner was admittedly in custody.

6. On the other hand, Shri D. Borah, learned State Counsel has submitted that there are a Single Bench of this Court in a recent judgment has laid down that while counting of 90 days there is no requirement of mathematical precision and the same cannot be an inflexible Rule. The learned State Counsel further submits that since the departmental proceedings has Page No.# 3/3

already been initiated, instead of interfering with the order of suspension a direction may be given to complete the proceedings within the time bound framed.

7. After considering the rival submissions, this Court is of the opinion that in view of the mandate of law laid down by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary (Supra) as well as by the Hon'ble Division Bench of this Court in the case of Rakibuddin Ahmed (Supra), this Court has no other option but to hold that the impugned order of suspension dated 09.06.2017 which is continuing without any order of review is liable to be interfered with. The fact that the petitioner has not been sent up for trial in the connected criminal case for which he was placed under suspension is also a relevant consideration for interfering with the impugned order.

8. Accordingly, the impugned order dated 09.06.2017 is set aside with a direction to reinstate the petitioner in service forthwith.

9. The authorities are however at liberty to post the petitioner in any non-sensitive post to facilitate the completion of the disciplinary proceeding which is said to have been initiated in the meantime.

10. The instant petition accordingly stands disposed of.

JUDGE

Comparing Assistant