Chakreswar Kalita vs The State Of Assam And 2 Ors
2022 Latest Caselaw 1121 Gua

                                                                  Page No.# 1/8

GAHC010054612022




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

                                 Case No. : WP(C)/2035/2022

            CHAKRESWAR KALITA
            SON OF LATE BHOLA KALITA
            R/O VILL- KAZIPARA
            P.S. NALBARI,
            DIST. NALBARI, ASSAM



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REP. 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
             PIN-781001

            3:THE DEPUTY COMMISSIONER

             NALBARI
             DIST. NALBARI
             ASSAM
             PIN-78133

Advocate for the Petitioner   : MR. S K GOSWAMI

Advocate for the Respondent : SC, REVENUE
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                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                  ORDER

30.03.2022

Heard Mr. S.K. Goswami, learned counsel for the petitioner. Also heard Mr. J. Handique, learned counsel for the respondent no.1 and Mr. T.C. Chutia, learned counsel for the respondent nos.2 & 3.

2. The learned counsels for the State respondents had been directed to obtain instructions vide order dated 23.03.2022. However, they submit that no instructions have been received by them.

3. The petitioner's case is that the petitioner was suspended on 11.10.2021 w.e.f. 21.09.2021, i.e. the date of his arrest in connection with Nalbari P.S. Case No.523/2021 under Section 120(B)/420/409/467/ 468/471 IPC. The petitioner was granted bail on 07.10.2021.

4. The petitioner's counsel submits that as no departmental proceeding has been initiated against the petitioner and no charge-sheet has been submitted in the criminal case, the petitioner's suspension order should be set aside and the petitioner should be reinstated into service. He also submits that one Mr. Deba Kanta Baruah, who had been suspended along with the petitioner, vide the same order dated 11.10.2021, had already been reinstated into service, in compliance Page No.# 3/8

with the order dated 31.01.2022 passed in WP(C) 72/2022. The learned counsel for the petitioner also submits that no exercise of review for continuation of suspension order has been undertaken by the respondents. He submits that in terms of the judgment of the Division Bench passed in Rekibuddin Ahmed vs State of Assam & Others, reported in 2019 (5) GLT 600 as well as on the ratio of the judgment of the Apex Court in Ajay Kr. Choudhury vs. Union of India & Others, reported in (2015) 7 SCC 291, the petitioner should be reinstated into service after setting aside the suspension order.

5. The relevant portion of the order dated 31.01.2022 passed in WP(C) 72/2020 is extracted hereinbelow :

"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.

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 Page No.# 4/8

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.

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.

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(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 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, Page No.# 6/8

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 allegations and the reasons for which charges could not be prepared so hat 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) Page No.# 7/8

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"

6. This Court is of the view that the extract of the order dated 31.01.2022 passed in WP(C) 72/2020, which is reproduced in the foregoing paragraph is applicable to the case in hand.

7. In view of the above reasons, the respondents are directed to reinstate the petitioner to his post, with liberty being given to post the petitioner whenever they want in the exigencies of service, so that the petitioner would not have an opportunity of interfering with the enquiry or the documents that the respondents might be wanting to rely upon in any departmental enquiry or charge-sheet. Consequently, the suspension order dated 11.10.2021 is hereby set aside.

The above is however subject to no review having been done by the respondents, for extension of the petitioner's suspension order within 90 days, from the date of taking effect of the suspension order dated 11.10.2021.

8. The writ petition is disposed of accordingly.

JUDGE Page No.# 8/8

Comparing Assistant