Altaf Hussain vs The State Of Assam And 2 Ors
2022 Latest Caselaw 848 Gua

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GAHC010000152022




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

                                  Case No. : WP(C)/60/2022

            ALTAF HUSSAIN
            S/O. LT. GAFUR ALI, R/O. GARIGAON, P.S. JALUKBARI, GUWAHATI, DIST.
            KAMRUP (M), ASSAM, PIN-781012.



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            FOOD CIVIL SUPPLIES AND CONSUMER AFFARIS DEPTT. (GOVT. OF
            ASSAM) REP. HEREIN BY ITS PRINCIPAL SECRETARY TO THE GOVT. OF
            ASSAM, DISPUR, SACHIBHALAYA GUWAHATI, ASSAM.

            2:PRINCIPAL SECRETARY

             (GOVT. OF ASSAM)
             FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPTT.
             (GOVT. OF ASSAM)
             DISPUR
             SACHIBHALAYA GUWAHATI
             ASSAM.

            3:SECRETARY

             (GOVT. OF ASSAM)
             FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPTT.
             (GOVT. OF ASSAM)
             DISPUR
             SACHIBHALAYA GUWAHATI
             ASSAM

Advocate for the Petitioner   : MR. S CHAMARIA

Advocate for the Respondent : GA, ASSAM
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                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                     ORDER

Date : 10-03-2022

Heard Mr. S. Chamaria, learned counsel for the petitioner. Also heard Mr. T.C. Chutia, learned counsel for the State respondents.

2. The petitioner is praying for setting aside his suspension order dated 29.09.2021 and the order dated 21.12.2021 extending his suspension, on the ground that no memo of charge/charge-sheet has been submitted by the respondents within 3 (three) months from the date of his suspension order, as mandated by the Apex Court in the case of Ajay Kumar Choudhary Vs. Union of India & Ors., reported in (2015) 7 SCC 291 and the Division Bench judgment of this Court in the case of The State of Assam & Ors. Vs. Mrigen Haloi, reported in 2021 (4) GLT 682.

3. The petitioner, who is working as a Deputy Controller, Legal Metrology Department (Zonal Guwahati) under the Food Civil Supplies & Consumer Affairs Department, Government of Assam was arrested on 20.09.2021, in pursuant to Crime Branch P.S. Case No. 11/2021 dated 20.09.2021 under Section 120 (B)/420/409/467/468/471 IPC.

4. As the petitioner was placed in judicial custody for more than 48 hours, the petitioner was suspended vide Notification dated 29.09.2021, in exercise of Rule 6 (2) of the Assam Services (Discipline and Appeal) Rules, 1964 w.e.f. 21.09.2021.

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5. The petitioner's counsel submits that though the petitioner's suspension has been extended vide Notification dated 21.12.2021, the respondents have not filed any charge-sheet in respect of Crime Branch P.S. Case No. 11/2021. He also submits that no Departmental Proceeding has been initiated against the petitioner.

6. The petitioner's counsel thus prays for setting aside the suspension order and the order extending his suspension order in terms of the judgment of the Apex Court in Ajay Kumar Choudhary Vs. Union of India & Ors., reported in (2015) 7 SCC 291 and the Division Bench judgment of this Court in the case of The State of Assam & Ors. Vs. Mrigen Haloi, reported in 2021 (4) GLT 682.

7. Mr. T.C. Chutia, learned counsel for the State respondents, on the other hand submits that the petitioner's suspension has been extended, vide Notification dated 21.12.2021, in terms of Regulation 2.1.8 (iii) of the Manual of Departmental Proceedings. He submits that as a review of the petitioner's suspension order had been done within 3 (three) months from the date of the petitioner's initial suspension and the decision taken to extend the suspension period had been issued within the said 3 (three) months, there cannot be any automatic revocation of the suspension order. He submits that the extension of the petitioner's suspension order had been done to enable the respondents to further examine the allegation made in the criminal case and in view of the review being done within 3 (three) months of the initial suspension order, the judgment of the Apex Court in Ajay Kumar Choudhary (supra) would not be applicable to the facts of this case.

8. I have heard the learned counsels for the parties.

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9. The petitioner's case is that he was arrested on 20.09.2021 in pursuant to Crime Branch P.S. Case No. 11/2021. He was suspended vide Notification dated 29.09.2021 w.e.f. 21.09.2021. The petitioner thereafter submitted representation dated 03.11.2021 praying for reinstatement into service. As the representation was not considered, the petitioner filed WP(C) No. 6088/2021 praying for reinstatement into service. This Court vide Order dated 22.11.2021 disposed of WP(C) No. 6088/2021, by directing the Principal Secretary to the Government of Assam, Food Civil Supplies & Consumer Affairs Department and the Secretary to the Government of Assam, Food Civil Supplies & Consumer Affairs Department to examine the petitioner's representation dated 03.11.2021 and to take a decision on the same within a period of 2 (two) weeks.

10. Consequent to the above direction passed by this Court, the respondent No. 3, i.e., The Secretary to the Government of Assam, Food Civil Supplies & Consumer Affairs Department issued the impugned Notification dated 21.12.2021, wherein it extended the petitioner's suspension until further orders, on the ground that the nature of allegations made against the petitioner required further enquiry and examination in consultation with the Judicial Department.

11. The Notification dated 21.12.2021 is reproduced below:-

"Whereas, Shri Altaf Hussain, Deputy Controller of Legal Metrology (Zonal) Guwahati was placed under deemed suspension vide Order No.FSA.187/2018/92 dated 29-09-2021 consequent upon his arrest by crime Branch, Police Station, Guwahati in connection Crime Branch Police Station, Police Commissionerate, Guwahati case No.11.2021/, US 120(b)/420/409/467/468/471 IPC and placing him under Judicial Custody.

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Whereas, Shri Altaf Hussain has submitted a petition dated 26-11-2021 for re-instatement in service in terms of the order dated 22.11.2021 passed by the Hon'ble High Court, Gauhati in W.P(C) No.6088/2021. The Hon'ble High Court vide order dated 22-11-2021 had directed respondent

Nos-2 and 3 to examine the petitioner's representation dated 03-11-2021 for re- instatement and take a decision on the same within a period of two weeks from the date of receipt of a certified copy of the order of the Hon'ble High Court.

Now, upon examination of the matter, it is observed that nature of the allegation against the delinquent officer requires further enquiry and examination in consultation with the Judicial Department. In this connection, Principal Secretary, Home & Political Department has been requested to submit a report on the matter vide no. FSA.126/2021/20 dated 09-12-2021.

Considering the facts as above, the suspension of Shri Altaf Hussain affected vide order no. FSA.187/2018/92 dated 29-09-2021 shall continue until further orders and the representation of Shri Altaf Hussasin is accordingly disposed of.

By order and in the name of the Governor of Assam."

12. Paragraph No. 14 of the judgment of the Apex Court in Ajay Kumar Choudhary states that the currency of a suspension order should not extend beyond 3 (three) months, if within this period the memo of charge/charge-sheet is not served on the delinquent officer/employee. The Apex Court further held that if the memo of charge/charge-sheet is served, a reasoned order must be passed for the extension of the suspension.

13. A perusal of the above decision of the Apex Court clearly shows that the memo of charge/charge-sheet has to be served on the delinquent officer/employee within 3 (three) months or else, the suspension order cannot be extended. It further held that once a memo of charge/charge-sheet is served Page No.# 6/10

within the time period of 3 (three) months from the date of the suspension order, a reasoned order must be passed by the authorities for extension of the suspension period. There is nothing stated by the Apex Court to the effect that a suspension order can be extended beyond 3 (three) months, if a review of the delinquent officer's suspension is held within 3 (three) months from the date of issuance of the initial suspension order and in the absence of a memo of charge/charge-sheet. As such, this Court is of the view that in terms of the judgment of the Apex Court in Ajay Kumar Choudhary (supra), the petitioner's suspension order could not have been extended beyond 3 (three) months in the absence of memo of charge/charge-sheet, even if a review of the suspension order had been made and a decision taken to extend the suspension period.

14. The present case however pertains to the petitioner being placed under suspension in terms of Rule 6 (2) of the Assam Services (Discipline and Appeal) Rules, 1964. In the case of The State of Assam & Ors. Vs. Mrigen Haloi (supra), the Division Bench of this Court has held at paragraph No. 20 that the principles laid down in the case of Ajay Kumar Choudhary (supra) would also be applicable in a case of deemed suspension under Section 6 (2) of the 1964 Rules. Accordingly, as the petitioner has been placed under deemed suspension in terms of Rule 6 (2) of the 1964 Rules, the respondent authorities were bound to submit a charge-sheet in Crime Branch P.S. Case No. 11/2021, within 3 (three) months from the date of the initial suspension of the petitioner.

15. Having stated the above and by referring to the judgments of the Apex Court in Ajay Kumar Choudhary (supra) and Mrigen Haloi (supra), it is quite apparent that a review of the suspension order, in the absence of memo of charge/charge-sheet being served within 3 (three) months of the suspension Page No.# 7/10

order, would have no effect, inasmuch as, there could not have been an extension of the suspension of the delinquent officer/employee beyond 3 (three) months. However, Regulation 2.1.8 (iii) of the Manual of Departmental Proceedings provides that in cases where it is not reasonably practicable to prepare the charges for service within 3 (three) months from the date of suspension and the continued suspension of the Government Servant is considered necessary in public interest, the authority concerned should move the Personnel Department through the Administrative Department, well before the expiry of the period of 3 (three) months, with a letter dictating the nature of the allegations and the reasons for which charge cannot be prepared, so that the Personnel Department could give it's advice as to whether any further extension of the period of suspension should be permitted or not.

16. In the case of Atfur Rahman & Ors. Vs. State of Assam & Ors., reported in 2019 6 GLR 460, this Court had also stated that under criminal jurisprudence, till a charge-sheet is filed, it cannot be presumed that there is a prima-facie case against the accused. It was further held that 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 paragraph 2.1.4 to 2.1.8 of the Manual. The relevant paragraph No. 67 in Atfur Rahman (supra) is reproduced below:-

"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 Page No.# 8/10

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."

17. As can be seen from the above Regulation 2.1.8 (iii), the continued suspension of a Government servant can be done even in the absence of charges being served upon him, if the Personnel Department makes an advisory to the effect that extension of the suspension period is required in public interest. However, Regulation 2.1.8 (iii) has been made by taking into account Regulation 2.1.4, which is 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."

18. In the present case, the petitioner had been suspended vide Notification dated 29.09.2021 w.e.f. 21.09.2021. The extension of the petitioner's suspension order has been made vide Notification dated 21.12.2021, .i.e., beyond 3 (three) months. In fact, it is one day beyond the 3 (three) months' period. Thus, on this count alone, the petitioner's suspension order has to be set aside. The above being said, the Notification dated 21.12.2021, extending the petitioner's suspension period does not indicate that the advice of Page No.# 9/10

the Personnel Department has been taken through the Administrative Department, with regard to whether the petitioner's suspension period should be extended. Copies of the Notification dated 21.12.2021 has also not been given to the Personnel Department. Also, there is nothing to show that the Notification dated 21.12.2021 has been made in public interest.

Though an argument can be put forth to the effect that as this Court had directed the Principal Secretary and the Secretary to the Government of Assam, Food Civil Supplies & Consumer Affairs Department to consider the petitioner's application for reinstatement into service vide Order dated 22.11.2021 passed in WP(C) No. 6088/2021 and as such, the decision for extension of the suspension order made vide the impugned Notification dated 21.12.2021, extending the suspension order had to be accepted to be a valid extension, this Court is of the view that such an argument cannot be accepted. The reason being that the procedure to be followed for extension of the suspension order having already been enumerated in paragraph 2.1.4 to 2.1.8 of the Manual of Departmental Proceedings, which has also been noted in the case of Atfur Rahman (supra), this Court is of the view that the procedure and requirements enumerated in paragraph 2.1.8 (iii) would have to be followed for extending the suspension, even if the consideration/review had been made by the State respondents, on the basis of a Court order. It is settled law that if power to do a certain thing is to be done in a certain manner, the thing must be done in that way or not at all. However, as stated in the foregoing paragraph, Regulation 2.1.8 (iii) has not been followed by the respondents.

19. In view of the reasons stated above, this Court is of the view that the impugned Notification dated 29.09.2021 and the extension of the suspension Page No.# 10/10

vide Notification dated 21.12.2021 are not sustainable in law. The same are accordingly set aside.

20. The respondents are directed to re-instate the petitioner into service. However, in terms of the judgment of the Apex Court in Ajay Kumar Choudhary (supra), 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 can also prohibit him from contacting any person, handling records and documents. The State respondents shall ensure that the arrear subsistence allowance payable to the petitioner is paid to the petitioner forthwith.

The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant