Gauhati High Court
Pradip Barman vs The State Of Assam And 2 Ors on 4 October, 2021
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GAHC010102122021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3408/2021
PRADIP BARMAN
S/O LATE NABIN CHANDRA BARMAN,
RESIDENT OF BYE LANE OPPOSITE DGP OFFICE, B.K KAKATI ROAD,
ULUBARI, GUWAHATI 781007,PS PALTAN BAZAR, DIST KAMRUP M ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, GUWAHATI
DEVELOPMENT DEPARTMENT, DISPUR GUWAHATI, 781006
2:THE GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY (GMDA)
BHANGAGARH
GUWAHATI 781005
REPRESENTED BY ITS CHAIRMAN
3:THE CHIEF EXECUTIVE OFFICER
GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY (GMDA)
BHANGAGARH
GUWAHATI 78100
Advocate for the Petitioner : MS. J BORO
Advocate for the Respondent : SC, G M D A
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 04.10.2021
Heard Mr. S. Deka, learned counsel for the petitioner and Mr. P. Nayak,
learned standing counsel for the respondents.
2. By filing this writ petition under Article 226 of the Constitution of India, the
petitioner has assailed the impugned order dated 27.05.2016 issued by the
Chief Executive Officer, GMDA (respondent no.3) thereby placing the petitioner
under suspension on the allegation of indulging in bribery for which the
Inspector of Police, Vigilance and Anti Corruption, Assam had lodged a criminal
prosecution being ACB PS Case No. 02/2016 under Sections 7/13(1)(d)(ii)/13(2)
of the Prevention of Corruption Act, 1988.
3. Notice of motion was issued by order dated 28.07.2021. Although no
affidavit-in-opposition has been filed, but the learned standing counsel for the
respondents is in receipt of the concerned office file relating to the petitioner.
4. The learned standing counsel for the respondents has submitted that the
allegations against the petitioner was under the provisions of Prevention of
Corruption Act and if the petitioner is reinstated in service, he would be in a
position to influence the other employees and may manipulate the records. It is
submitted that the GMDA does not have any other departments or offices where
the petitioner could be accommodated and therefore, he opposes the prayer
made in the present writ petition. It is also submitted that the petitioner was
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suspended and in view of the criminal proceeding against him which was then
pending, the disciplinary proceeding was deferred by the respondent authorities.
It is also submitted that the petitioner has been acquitted in the proceedings of
Special Case No. 13/2017 by the Court of learned Special Judge, Assam by
giving the petitioner the benefit of doubt, as such, the respondents now
propose to proceed with the departmental proceeding and it is submitted that
the departmental proceeding would be completed within the time bound period
and on that ground the prayer for revoking of the order of suspension is
opposed.
5. The Court finds that there is no order by the respondents to review the
order of suspension passed on 27.05.2016. The petitioner was suspended
pending drawal of the departmental proceeding and that till date the charge-
sheet has not been submitted against the petitioner in the departmental
proceeding. In the proceeding of Special Case No. 13/2017 under Sections 7/13
(2) of the Prevention of Corruption Act, 1988 the petitioner has been acquitted
by judgment dated 05.04.2021 on the ground that the prosecution has failed to
establish the charge framed against the petitioner beyond all reasonable doubts.
6. Although in the case of Ajay Kumar Choudhary Vs. Union of India (2015) 7
SCC 291, the suspension was not pending drawal of disciplinary proceeding, but
in that case the departmental proceeding was drawn up and in view of the
criminal prosecution, the departmental proceeding was kept in abeyance.
Nonetheless, the Division Bench of this Court in the case of Rakibuddin Ahmed
Vs. The State of Assam & 4 Ors., (2020) 2 GLR 621 had clarified that the ratio
laid down in the case of Ajay Kumar Choudhary (supra) would also apply on
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cases where the government employee was suspended pending drawal of the
disciplinary proceeding.
7. Accordingly, applying the ratio laid down in the cases of Ajay Kumar
Choudhary (supra) and Rakibuddin Ahmed (supra), the Court is inclined to
prospectively set aside the impugned order of suspension bearing no.
GMDA/E/PER/04/1997/51 dated 27.05.2016 issued by the respondent no.3.
However, it is made clear that the respondents shall be entitled to post the
petitioner in any of their Branch/ Department/ post and it would also be open to
the respondent authorities to prohibit the petitioner from contacting any person
or handing any records or documents till the stage of filing his statement of
defence in the disciplinary proceedings. The respondents shall pass
consequential orders within 2(two) weeks for revoking of the order of
suspension prospectively and to reinstate the petitioner in service.
8. With the aforesaid observation, this writ petition stands allowed to the
extent as indicated above.
JUDGE
Comparing Assistant
