Gauhati High Court
Josimuddin Ahmed @ Josim Uddin vs The State Of Assam And 5 Ors on 1 October, 2021
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GAHC010143742021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4753/2021
JOSIMUDDIN AHMED @ JOSIM UDDIN
S/O- LT. ABDUL JALIL, R/O- A.K.DEB ROAD, NEAR KABARSTHAN, P.O. AND
P.S. GORCHUK, DIST.- KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND 5 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM,
ENVIRONMENT AND FOREST DEPTT., DISPUR, GHY-6
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
ENVIRONMENT AND FOREST DEPTT.
DISPUR
GHY-6
3:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAD OF
FOREST FORCE
ASSAM
PUNJABARI
GHY-37
4:THE CONSERVATOR OF FORESTS
NORTHERN ASSAM CIRCLE
TEZPUR
ASSAM
PIN- 784001
5:THE DIVISIONAL FOREST OFFICER
LAKHIMPUR DIVISION
LAKHIMPUR
PIN- 787001
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6:SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI-CORRUPTION
ASSAM CUM OFFICER-IN-CHARGE
ANTI-CORRUPTION BRANCH P.S.
SRIMANTAPUR
GHY-3
Advocate for the Petitioner : MR. T J MAHANTA
Advocate for the Respondent : SC, FOREST
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 01.10.2021
Heard Mr. T.J. Mahanta, learned Senior Counsel, assisted by Mr. T. Gogoi,
learned counsel for the petitioner and Mr. K.P. Pathak, learned standing counsel
for the Forest Department, appearing for respondent nos. 1 to 5 as well as Mr.
J.K. Parajuli, learned Addl. Senior Govt. advocate appearing for respondent
no.6.
2. The petitioner is serving in the Forest Department as Assistant Conservator
of Forest and posted at Lakhimpur Davison in the office of the Divisional Forest
Officer. The petitioner was suspended by order dated 29.10.2020 w.e.f.
05.10.2020 pursuant to his arrest in connection with ACB PS Case No. 11/2020
under Section 7(a) of the Prevention of Corruption Act, 1988. It is projected that
the petitioner had also released on bail on 05.11.2020. Therefore, aggrieved by
the continued suspension, placing reliance on the ratio laid down by the
Supreme Court of India in the case of Ajay Kumar Choudhary Vs. Union of India
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(2015) 7 SCC 291, the petitioner has filed this writ petition under Article 226 of
the Constitution of India. Further grievance of the petitioner is to the effect that
his subsistence allowances are not been paid as per the relevant rules up to
75% which she is claiming entitlement after lapse of 3(three) months.
3. By order dated 17.09.2021, the learned standing counsel for the Forest
Department was given time to obtain instruction and accordingly, the learned
standing counsel for the Forest Department has produced a copy of the written
instruction dated 13.09.2021, amongst others, stating that the review meeting
of the Forest Department was held on 25.01.2021 to review the suspension of
the petitioner. Although it is mentioned in the said instructions that a copy of
the minutes of the meeting is enclosed but no such document is accompanying
the instructions. The Court could not be shown about the nature of order
passed.
4. The learned departmental counsel submits that it may be presumed that in
the review meeting, the suspension of the petitioner was extended. It is also
mentioned in the said instruction that no review meeting was conducted after
25.01.2021. It is also disclosed that the Administrative Department is yet to
receive draft charges to be submitted against the petitioner from the office of
the respondent no.3 and in the meanwhile, the competent Authorities have
been moved for granting sanction for prosecuting the petitioner.
5. It appears from the said instruction that neither there was review meeting
after 25.01.2021 for continued suspension of the petitioner nor any charge-
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sheet in the departmental proceeding has been served on the petitioner and
that no charge-sheet has been submitted against the petitioner in connection
with this trial in the criminal case instituted against the petitioner.
6. At this stage, the learned departmental counsel has raised an objection for
applying the ratio of Ajay Kumar Choudhary (supra) on the ground that by
virtue of orders passed in suo motu W(C) No. 3/2020, wherein the Supreme
Court of India had issued a direction, amongst others, that any period of
limitation, that condonable or not stands excluded in view of the Covid-19
Pandemic. In this connection, it is seen from the judgment in the case of Ajay
Kumar Choudhary (supra) that the Supreme Court of India had drawn a parallel
of the department to proceeding with the provisions of Section 167. It is also
held that spurred to extrapolate the quintessence of the proviso of Section
167(2) of the Cr.P.C. to moderate suspension orders in cases of
departmental/disciplinary inquiries also.
7. The learned Senior Counsel for the petitioner has referred to the case of
State of Assam Vs. Mrigen Haloi, W.A. No. 28/2021 wherein the Division Bench
of this Court had taken note of paragraph 15 and 17 of the case of Rakibuddin
Ahmed Vs. State of Assam and Ors., 2019 (5) GLT 600 to held that on the ration
laid down in the case of Ajay Kumar Choudhary (supra) also be applicable in the
case of suspension under Section 62 of the Assam Services (Disciplinary and
Appeal) Rules, 1964 and thereafter, the Division Bench of this Court held that
the principles laid down in the case of Ajay Kumar Choudhary (supra) would be
applicable even in the case of deemed suspension and accordingly, if no review
of the suspension had been made within 90 days, such deemed suspension and
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its continuation would be vitiated and would be liable to be interfered with.
8. Moreover, as per the instruction produced by the learned departmental
counsel, it is seen that the charge-sheet has not been served on the petitioner.
Therefore, the Court is unable to accept that the disciplinary proceeding is
pending against the petitioner. In that view of the matter, the Court is unable to
accept that the order dated 08.03.2021 passed by the Supreme Court of India in
the case of suo motu SMW(C) No. 3/2020 wherein, it has been observed that in
completing the period of limitation for any suit, appeal, application or
proceeding, the period from 15.03.2020 to 14.03.2021 shall stands excluded
further providing that consequently the balance period of limitation remaining as
on 15.03.2021, if any, shall become available w.e.f. 15.03.2021. The reference
to suit, appeal, application or proceeding must be read in connection with
matters pending or to be filed before a Court of law, and not in context with any
departmental action against its employees.
9. Therefore, the Court is of the considered opinion that ratio laid down in
the case of Ajay Kumar Choudhary (supra) applies in the present case and the
continued suspension of the petitioner is liable to be interfered with and
accordingly, the impugned order of suspension dated FRE.128/2020/17 dated
29.10.2020 stands set aside and quashed.
10. The respondent no. 2 is directed to pass consequential orders to reinstate
the petitioner in service. It would be open to the respondent no. 2 to post the
petitioner in any other place of posting, if the said authority is of the opinion
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that the petitioner not be posted in the same place of posting which may
influence the outcome of the departmental proceeding against the petitioner by
also prohibiting the petitioner from handing any document directly related to
conduct of the departmental proceeding against the petitioner.
11. With the aforesaid observation, this writ petition stands allowed to the
extent as indicated above.
12. The written instruction dated 15.07.2021 as provided by the learned
departmental counsel is retained on the record.
JUDGE
Comparing Assistant
