Dr Lokman Ali vs The State Of Assam And Anr
2021 Latest Caselaw 2389 Gua

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GAHC010152742021




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

                                 Case No. : WP(C)/4972/2021

            DR LOKMAN ALI
            S/O MD. SAYED ALI
            A RESIDENT OF VILL- GHOGA,
            P.O. LAWTOLA
            P.S. MUKALMUA
            DIST. NALBARI, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR
            TO BE REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
            ASSAM, EDUCATION (HIGHER) DEPARTMENT, DISPUR, GUWAHATI-6

            2:THE DIRECTOR OF HIGHER EDUCATION

             ASSAM
             KAHILIPARA
             GUWAHATI-19

Advocate for the Petitioner   : MR. A R BHUYAN

Advocate for the Respondent : SC, HIGHER EDU

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 01-10-2021 Page No.# 2/4

JUDGMENT & ORDER (ORAL)

Heard Mr. AR Bhuyan, learned counsel for the petitioner. Also heard Mr. K Gogoi, learned counsel for the Higher Education Department Government of Assam.

2. The petitioner is an Assistant Professor in the Department of History in the Barkhetri College and by the order impugned dated 13.02.2017 of the Director of Higher Education Assam, he was deemed to have been under suspension under Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, (for short, the Act of 1964) inasmuch as, he was arrested by the Mukalmua police on 04.02.2017 in connection with Mukalmua Police Station Case No.36/2017 under Sections 468/471/420/409/201/506 IPC. As the petitioner was under custody for more than 48 hours, the order impugned was passed. Although the said order provides that the suspension was under Rule 6(1) of the Act of 1964, but it being a case of deemed suspension for being under custody for more than 48 hours, we have to understand that the source of power was wrongly recorded. The law in this respect is clear that if otherwise the source of power exists a mere wrong quotation of the source of power cannot vitiate the order.

3. Be that as it may, we have taken note of that the petitioner is under suspension for almost four and half years now. Secondly, materials have been produced before the Court that two FIRs were registered against the petitioner on the same set of facts which resulted in the Mukalmua PS Case No.36/2017 and Mukalmua PS Case No.38/2017 which ultimately resulted in the FIR in Mukalmua PS Case No.36/2017 being set aside in Crl.Pet.No.172/2018 as per Page No.# 3/4

the order dated 02.12.2020. It is stated that the ground on which the FIR was set aside was that two FIRs are not maintainable on the same cause of action. It is stated that the FIR in Mukalmua PS Case No.38/2017 has also been assailed in Crl.Pet.No.908/2017 which is pending before the Court.

4. A submission is also made by Mr. AR Bhuyan, learned counsel for the petitioner that in respect of the same event, there was also an earlier FIR which resulted in Mukalmua PS Case No.375/2011. It is stated that the Mukalmua PS Case No.375/2011 ultimately resulted in a trial against the petitioner in GR Case No.1731/11 where there was an acquittal in favour of the petitioner by arriving at a conclusion that the vital witnesses examined by the prosecution could not establish the guilt of the accused person beyond reasonable doubt.

5. We have also been informed that after being in custody for more than 48 hours in connection with Mukalmua PS Case No.36/2017 and Mukalmua PS Case No.38/2017 and the petitioner was released on bail on 08.03.2007. The proviso to Rule 6(2) of the Act of 1964 inter alia provides that if the detention was made on account of any charge not connected with his position as a Government servant or his continuance in office is not likely to embarrass the Government or the Government servant in the discharge of his duties or the charge does not involve moral turpitude, the Appointing Authority may vacate the suspension order made or deemed to have been made when he is released on bail or is not otherwise in custody or imprisonment. As the petitioner is presently not in custody, there is a legal right in his favour for the appointing authority to pass a reasoned order under the provision to Rule 6(2) of the Rules of 1964. The very fact that the FIR itself was set aside by the Court under Page No.# 4/4

Section 482 of the Cr.P.C and in respect of another FIR on the same sets of fact, the petitioner was acquitted by the trial court, it is for the competent authority to also take the said aspect into consideration while considering the case of the petitioner under the proviso to Rule 6(2). Accordingly, the Director of Higher Education is directed to consider the claim of the petitioner for vacating the suspension under the provisions of the proviso to Rule 6(2) of the Rules of 1964 and if found acceptable to set aside the order of suspension.

6. The above requirement be done within a period of seven days from today.

7. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant