Debakanta Baruah vs The State Of Assam And 2 Ors
2022 Latest Caselaw 303 Gua

                                                                 Page No.# 1/7

GAHC010226762021




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

                                  Case No. : WP(C)/72/2022

            DEBAKANTA BARUAH
            S/O BAIKUNTHA SEAL
            RESIDENT OF VILLAGE MAROWA,
            PS AND DIST NALBARI, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REPRESENTED BY THE PRINCIPAL SECRETARY, REVENUE AND D.M
            DEPARTMENT, GOVT. OF ASSAM, DISPUR , GUWAHATI 06

            2:THE COMMISSIONER

            LOWER ASSAM DIVISION
            STATE OF ASSAM
            PANBAZAR
            GUWAHATI
            KAMRUP M ASSAM 781001

            3:THE DEPUTY COMMISSIONER
             NALBARI
             NALBARI
            ASSAM 78133

Advocate for the Petitioner   : MR. S K GOSWAMI

Advocate for the Respondent : GA, ASSAM




                                         BEFORE
                                                                       Page No.# 2/7

           THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY

                                   ORDER

31.01.2022 Heard Mr. S. K. Goswami, the learned counsel for the petitioner. Also heard Mr. S. S. Roy, the learned State Counsel, Assam appearing for the State respondents.

The petitioner was serving as a Lot Mandal under the amalgamated establishment of Deputy Commissioner, Nalbari. The Deputy Commissioner, Nalbari vide letter dated 29.10.2021, intimated the Superintendent of Police, Nalbari that there are some irregularities and corrupt practices in the Revenue Circle Offices. The Superintendent of Police, Nalbari in turn forwarded the same to the Officer-in-Charge of Nalbari Police Station. Thereafter, the Officer-in- Charge of Nalbari Police Station, on the basis of the aforesaid communication, registered a police case being Nalbari P.S. Case No. 523/2021 under Sections 120(B)/420/401/407 of IPC and thereafter, the petitioner was arrested in connection with the said case on 21.09.2021.

On the basis of such arrest and detention, according to the petitioner, he was placed under suspension by order dated 11.10.2021. Thus the petitioner was suspended in terms of the provision of Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964.

Thereafter, the petitioner was released on bail by this Court vide its order dated 07.10.2021 passed in Bail Application No. 2476/2021. According to the learned counsel for the petitioner, though the petitioner has been under suspension till date neither any charge-sheet has been filed in the criminal case Page No.# 3/7

nor any departmental proceeding has been initiated against the petitioner by issuing any charge memo and the petitioner continued to remain under suspension till date. Such contention of the petitioner is not disputed by Mr. S. S. Roy, the learned State Counsel, Assam. It is also a case of the petitioner that he filed a representation before the Deputy Commissioner, Nalbari praying for revocation of suspension order vide his communication dated 21.12.2021. But till date, nothing has been done in this regard.

It is submitted by the learned counsel for the petitioner that no exercise of review for continuation of the suspension order was undertaken. Reliance is placed by the learned counsel for the petitioner on the judgment of Hon'ble Division Bench this Court passed in Rekibuddin Ahmed -Vs- State of Assam and Ors, reported in 2019-5-GLT 600 as well as on the ratio of the case of Ajay Kr. Choudhury -vs- Union of India & Ors reported in (2015) 7 SCC 291. The learned counsel for the petitioner has also relied upon the decision of a coordinate Bench of this Court passed in Atfur Rahman & Ors - Vs- State of Assam & Ors reported in 2019 6 GLR 460 to buttress his contention.

In the Hon'ble Division Bench judgment in Rekibuddin Ahmed (Supra) it is categorically held that principle laid down in the case of Ajay Kr. Choudhury (Supra) would also be applicable in case of deemed suspension under Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964. From the legal prescription propounded in paragraph 21 of the Ajay Kr. Choudhury (supra), it is seen 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/employees.

Page No.# 4/7

In Atfur Rahman (supra) at paragraph 67 this Court held as follows:-

"67: It may be also noted that merely because an employee is arrested and detained more than 48 hours does not ipso facto lead to the inference that the employee is guilty of the offences. There may or may not be prima facie case against him but may be arrested and detained more than 48 hours on more suspicion and his involvement. It may be also noted under criminal jurisprudence till charge sheet is filed, it cannot be also presumed that there is a prima facie case against an accused. However, irrespective of the nature of charges, continuation of suspension of a person who had been arrested and detained would be guided by similar considerations as enumerated in Para 2.1.4 to 2.1.8 of the Manual".

The aforesaid paragraph 2.1.4 to 2.1.8 of the Manual as referred to, reads as follows:-

"2.1.4. Although suspension is not a punishment by itself, it cannot be denied at the same time that in such cases the officers placed under suspension suffer a lot. Apart from this suspension of a Government Servant is a liability on the part of the Government. The idea behind placing an officer under suspension is not to inflict punishment, which can be done only when the charges are proved, but to safeguard against further loss to Government, manipulation of records, intimidation of witnesses or embarrassment to Government in the public eye, as in the case, where moral turpitude is involved. In all cases of suspension the elementary justice demands that the period of suspension should be reduced to the barest minimum. It is, therefore, necessary to conclude proceedings drawn up as quickly as possible and in any case if it is not possible to do so due to reasons beyond control, the persons proceeded against may be allowed to resume their duties, where possible in places away from their former place of duty, vacating the suspension order so as to save Government expenditure in the event of his acquittal.

Page No.# 5/7

2.1.5. By way of clarification, of the general principle enunciated above, the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government Servant under suspension. These are only intended for guidance and should not be taken as mandatory.

(i) cases where continuance in office of a Government Servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering of documents and intimidation of witnesses);

(ii) where the continuance in office of a Government Servant is likely to seriously subvert discipline in the office in which the Government Servant is working;

(iii) where the continuance in office of a Government Servant will be against the wider public interest (other than the cases covered by (i) and

(i) above) such as there is a public scandal against him and it is necessary to place the Government Servant under suspension to demonstrate the policy of government to deal strictly with officers involved in such scandals, particularly corruption;

(iv) where allegations have been made against a Government Servant and the preliminary enquiry has revealed that a prima facie case is made out which would justify his prosecution or his being proceeded against in departmental proceedings and where the proceedings are likely to end in his conviction and / or dismissal, removal or compulsory retirement from service.

2.1.6. In the first three circumstances enumerated above, the Disciplinary Authority may exercise his discretion to place a Government Servant under suspension even when the case is under investigation and before a prima facie case has been established.

2.1.7. Certain types of misdemeanour where suspension may be desirable in the Page No.# 6/7

circumstances mentioned above are indicated below-

(i) any offence or conduct involving more turpitude;

(ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official power for personal gain;

(iii) serious negligence and dereliction of duty resulting in considerable loss to Government;

(iv) desertion of duty, and

(v) refusal or deliberate failure to carry out written orders of superior officers.

In respect of types of misdemeanor specified in sub-clause (iii), (iv) and

(v) discretion has to be exercised with care.

2.1.8. the following principles and procedure with regard to suspension need strict compliance-

(i) suspension should be resorted to only in cases where a major punishment is likely to be imposed if the charges are proved;

(ii) charges and the statement of allegations should be served within three months from the date of suspension failing which the Government Servant concerned should be reinstated; and

(iii) in cases where it is not reasonably practicable to prepare the charges for service within three months from the date suspension and the continued suspension of the Government servant is considered necessary in the public interest, the authority concerned should move the Personnel Department through Administrative Department well before the expiry of the period of three months with a letter detailing the nature of the Page No.# 7/7

allegations and the reasons for which charges could not be prepared so that the Personnel Department could advise whether any further extension of the period of suspension should be permitted or not".

In view of the aforesaid prescription and proposition of law, the inevitable conclusion, in the given facts of the present case is that as the Memorandum of Charges/Charge sheet has not been filed till date, though the petitioner was suspended on 11.10.2021, the ratio laid down in paragraph 21 of Ajay Kr. Choudhury (supra) and in paragraph 67 of Atfur Rahman (supra) is applicable to the facts of the present case and therefore, there cannot be other option but to make interference with the impugned order of suspension dated 11.10.2021, which is accordingly done.

As a result, the respondent shall forthwith reinstate the petitioner to his post. It is however made clear that the employer will be at liberty to post the petitioner wherever they want in the exigencies of services as well as there shall be no bar for them to initiate appropriate departmental proceeding if so advised.

In the aforesaid observation, this writ petition is allowed. However, no order as to cost.

JUDGE

Comparing Assistant