Rama Nath Barman vs The State Of Assam And 5 Ors
2022 Latest Caselaw 322 Gua

                                                                   Page No.# 1/6

GAHC010009872022




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

                           Case No. : WP(C)/338/2022

         RAMA NATH BARMAN
         S/O LATE AKSHAY BARMAN
         RESIDENT OF BIJNI, PO AND PS BIJNI, DIST CHIRANG, BTC, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         THROUGH THE COMMISSIONER AND SECRETARY TO THE GOVT. OF
         ASSAM, REVENUE AND DISASTER MANAGEMENT DEPARTMENT, DISPUR
         GUWAHATI 06

         2:THE BODOLAND TERRITORIAL COUNCIL

          REPRESENTED BY ITS PRINCIPAL SECRETARY
          BODOFA NWGWR
          PO AND PS KOKRAJHAR
          ASSAM

         3:THE SECRETARY
          LAND RECORDS AND DISASTER MANAGEMENT BTC
          BODOFA NWGWR
          DIST KOKRAJHAR
         ASSAM

         4:THE DIRECTOR

          LAND RECORDS AND DISASTER MANAGEMENT BTC
          BODOFA NWGWR
          DIST KOKRAJHAR
          ASSAM

         5:THE DEPUTY COMMISSIONER
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             CHIRANG
             KAJALGAON
             DIST CHIRANG
             BTC
             ASSAM


            6:THE CIRCLE OFFICER

             BIJNI REVENUE CIRCLE
             BIJNI
             DIST CHIRANG
             ASSA

Advocate for the Petitioner   : MR. S C BISWAS

Advocate for the Respondent : SC, REVENUE




                                    BEFORE
                       HONOURABLE MR. JUSTICE SUMAN SHYAM

                                          ORDER

Date : 01-02-2022

Heard Mr. S.C. Biswas, learned counsel appearing for the writ petitioner. Also heard

Mr. P. Nayak, learned standing counsel, BTC appearing for the respondent Nos. 2, 3 and 4,

Mr. J. Handique, learned standing counsel, Revenue Department representing the

respondent No. 1. Mr. J.K. Parajuli, learned Jr. Govt. Advocate, Assam has appeared for

the respondent Nos. 5 and 6.

As per the case projected in the petition, the writ petitioner herein was appointed

as Lat Mandal and posted at the Srijangram Revenue Circle in the district of Bongaigaon.

Thereafter, he was transferred and posted in the same capacity in the Bijni Revenue

Circle. While serving as Lat Mandal under the Bijni Revenue Circle, the petitioner was Page No.# 3/6

arrested on 21-09-2021 in connection with Bijni P.S. Case No. 390/2021 registered under

Section 120(B)/ 420/ 406/ 409/ 468/ 471 of the IPC and he was detained in custody for

more than 48 hours. Such being the position, by virtue of Rule 6(2) of the Assam Services

(Discipline and Appeal) Rules, 1964, the petitioner was placed under suspension w.e.f. 21-

09-2021. He is still under suspension. The petitioner has approached this Court by filing

the instant writ petition inter-alia alleging that till today neither any memorandum of

charge has been furnished to him nor any departmental proceeding has been initiated

against the petitioner. Notwithstanding the same and despite the clear mandate of the

Hon'ble Supreme Court laid down in the case of Ajay Kumar Choudhury Vs. The

Union of India & Anr. reported in (2015) 7 SCC 291 neither the order of suspension

has been reviewed by the authorities nor has the same been revoked. Situated thus, a

prayer has been made to set aside the order of suspension and direct reinstatement of

the petitioner in his service.

Mr. Biswas, learned counsel for the petitioner has placed reliance on the order

dated 04-10-2019 passed by the Division Bench in W.P.(C) No. 3218/2019

(Rakibuddin Ahmed Vs. The State of Assam and Ors.) to submit that the Division

Bench of this Court has already held that the principles laid down in the case of Ajay

Kumar Choudhury (Supra) would be attracted even in a case of deemed suspension

under Rule 6(2) of the Rules of 1964 and therefore, the order of suspension has lapsed

on expiry of 90 days. Hence, the impugned order of suspension be set aside.

Opposing the said prayer, Mr. Nayak, learned standing counsel, BTC has argued

that the law laid down in the case of Ajay Kr. Choudhury (Supra) was in context of Page No.# 4/6

regular departmental proceeding and the order of suspension issued in ordinary course of

business and not when an official is arrested in connection with a criminal proceeding.

Therefore, submits Mr. Nayak, the decision in the case of Ajay Kr. Choudhury (Supra)

would not be applicable in this case. Mr. Nayak has also placed reliance on the judgment

and order passed by this Court in W.P.(C) No. 6842/2018 (Atfur Rahman Vs. The

State of Assam) to argue that in a case of this nature the petitioner cannot claim

automatic revocation of suspension on the expiry of 90 days from the date of

commencement of suspension.

I have considered the submission advanced by the learned counsel for both sides.

There is no dispute at the bar that the petitioner was arrested on 21-09-2021 in

connection with Bijni P.S. Case No. 390/2021 and he was detained in police custody for

more than 48 hours. Rule 6(2) of the Rules of 1964 provides that a Govt. servant who is

detained in custody whether on criminal charge or otherwise for a period exceeding 48

hours shall be deemed to have been suspended with effect from the date of such

detention by an order of appointing authority and shall remain under suspension until

further order(s). If that be so, it is apparent that the present is a clear case of deemed

suspension.

A perusal of the decision rendered by the Hon'ble Supreme Court in the case of

Ajay Kr. Choudhury (Supra) goes to show that the observation made therein was

primarily on the basis of legal expectation of a delinquent for speedy trial and it was in

that context the Hon'ble Supreme Court has made the following observations in

paragraph 21.

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"21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/ charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/ charge-sheet is served, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us."

It is no doubt correct that in Ajay Kumar Choudhury (Supra) it was not a case of

deemed suspension due to detention in police custody. However, after the decision of the

Division Bench rendered in the case of Rakibuddin Ahmed (Supra) there can be hardly

any doubt on the fact that the principles laid down in the case of Ajay Kumar

Choudhury (Supra) would be attracted even in case of deemed suspension under Rule

6(2) of the Rules of 1964. Moreover, even under Rule 6(2) of the Rules of 1964, an order

of deemed suspension is to remain in force until further order. If that be so, it is evident

that the respondent authorities would be duty bound to review the order of suspension at

an appropriate stage, which would be 90 days in view of the decision rendered in the

case of Ajay Kumar Choudhury (Supra) and pass appropriate order.

Under the circumstances, this Court is of the view that regardless of the ground on

which the suspension has been ordered, if there is no departmental proceeding initiated Page No.# 6/6

within a period of 03 months from the date of suspension, it would be incumbent upon

the authorities to review the order of suspension and in the event the same is sought to

be extended, a reasoned order would have to be passed by the competent authority

justifying the extention of period of suspension. Similar is the view expressed by the

learned Single Judge in the case of Atfur Rahman (Supra) by interpreting Rule 6(2) of

the Rules of 1964.

In view of the above, I dispose of this writ petition at the stage of motion hearing by

directing the respondent No. 4 to review the order of suspension and pass appropriate

order(s) therein in the light and the observations made hereinabove, within a period of 07

days from the date of receipt of a certified copy of this order.

It is made clear that if the order of suspension of the petitioner is extended for

further period, the respondent No. 4 shall record reasons for doing so and furnish a copy

of such order to the writ petitioner.

With the above observation, this writ petition stands disposed of.

JUDGE GS

Comparing Assistant