Gauhati High Court
Biswajit Hazarika vs The State Of Assam And 2 Ors on 21 October, 2022
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GAHC010189652022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6176/2022
BISWAJIT HAZARIKA
S/O LATE NAGEN HAZARIKA, R/IO KRISHNA MAGNUN OPERA TOWER,
BLOCK-1, FLAT-6 B, ZOO-ROAD TINIALI, R.G. BARUAH ROAD, NEAR
AIRTEL BUILDING, P.S.-GEETANAGAR, P.O.-ZOO-ROAD TINIALI, DIST-
KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY, DEPARTMENT
OF HANDLOOM, TEXTILE AND SERICULTURE, DISPUR, GUWAHATI-06,
ASSAM
2:THE DIRECTOR OF HANDLOOM AND TEXTILES ASSAM
AMBARI
GUWAHATI-01
3:THE ASSISTANT DIRECTOR
HANDLOOM AND TEXTILE
TEZPUR
SONITPUR
ASSAM
Advocate for the Petitioner : MR S P DAS
Advocate for the Respondent : SC, HANDLOOM AND TEXTILE
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 21-10-2022
Heard Mr. SP Das, learned counsel for the petitioner and Mr. R Dhar,
learned counsel appearing for the Handloom and Textile Department in the
Government of Assam.
2. The petitioner's case is that the petitioner was suspended on 28.01.2021.
However, despite no departmental proceeding being initiated against the
petitioner nor any charge-sheet being filed in the criminal case, the suspension
order has not been cancelled or re-called. The petitioner's further case is that no
review of the suspension order has been undertaken by the respondents, so as
to extend the petitioner's suspension.
3. The petitioner's counsel submits that as per the judgment of the Apex
Court in Ajay Kumar Choudhary vrs. Union of India and Anr. , reported in
(2015) 7 SCC 291, the currency of a suspension order should not extend
beyond 3 (three) months, if within this period, the memorandum of
charges/charge-sheet is not served on the delinquent officer/employee. Further
the Apex Court has held that if the memorandum of charges/charge-sheet is
served, a reasoned order should be passed for the extension of the suspension.
4. The petitioner's counsel submits that a criminal case was registered
against the petitioner and his senior officer, Sri Abani Kalita, Assistant Director,
Handloom and Textiles, Sonitpur for misappropriation of money. However, as no
departmental proceeding had been initiated or charge-sheet submitted in the
criminal case registered against Sri Abani Kalita, Sri Abani Kalita filed WP(C) No.
3107/2021, praying for setting aside his suspension order.
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5. The petitioner's counsel further submits that the suspension of Sri Abani
Kalita, Assistant Director, Handloom and Textiles, Sonitpur has been set aside by
this Court, vide order dated 20.08.2021 passed in WP(C) No. 3107/2021, as no
charge-sheet had been filed in the criminal case nor departmental proceeding
initiated against him, in terms of the judgment of the Apex Court in Ajay
Kumar Choudhary (supra). He also submits that after setting aside the
suspension order of Sri Abani Kalita, he has been reinstated into service.
6. Mr. R Dhar, learned counsel appearing for all the respondents submits
that show cause notices were sent to the petitioner in his home address at
Tezpur and at Guwahati in October, 2021. However, the petitioner refused to
accept the said show cause notices. He accordingly submits that the
departmental proceeding should be deemed to have been initiated against the
petitioner w.e.f. October, 2021. He further submits that the charge-sheet could
not be filed against the petitioner within 3 (three) months, from the date of his
suspension order, due to the restrictions passed by the State Government during
the Pandemic. He also submits that he does not have instructions as to whether
a review of the petitioner's suspension order has been undertaken by the
respondents.
7. I have heard the learned counsels for the parties.
8. A perusal of the letter dated 22.01.2021 issued by the Director,
Handloom and Textiles to the Officer-In-Charge, Tezpur Police Station, Sonitpur
shows that the Police case registered against the petitioner and Sri Abani Kalita
was with regard to the same case and on the basis of one FIR, wherein both of
them were accused of misappropriating money. As such, the petitioner can be
said to be similarly placed as Sri Abani Kalita.
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9. As can be seen from the order dated 20.08.2021 passed in WP(C) No.
3107/2021, the suspension of Sri Abani Kalita has been set aside in terms of the
judgment of the Apex Court in Ajay Kumar Choudhary (supra), as no
departmental proceeding had been initiated against Sri Abani Kalita nor any
charge-sheet filed in the criminal case.
10. On considering the fact that the petitioner is similarly placed as Sri Abani
Kalita, this Court is of the view that the petitioner has to be treated in a similar
manner as Sri Abani Kalita. Accordingly, in terms of the judgment of the Apex
Court in Ajay Kumar Choudhary (supra), where it has been held that the
currency of a suspension order should not be extended beyond 3 (three)
months, if within the said period, the memorandum of charge/charge-sheet is
not served upon the delinquent officer/employee, this Court is of the view that
the suspension order 28.01.2021 is not sustainable. The said suspension order
is hereby set aside. Beside the above, there is nothing to show that any review
exercise has been undertaken by the State respondents for extension of the
petitioner's suspension. The above being said, liberty is granted to the State
respondents to transfer the petitioner to any of its offices within the State or
outside, 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
respondents may also prohibit him from contacting any person or handling any
records or documents till the stage of him preparing his defence. Consequently,
the respondents are directed to reinstate the petitioner into service. With regard
to the petitioner's prayer for release of his subsistence allowance, the order
dated 17.10.2022 issued by the Director, Handloom and Textiles, Assam has
been brought to the notice of this Court, wherein it has been stated that the
petitioner is to be given his subsistence allowance as per law.
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11. The writ petition stands disposed of accordingly.
JUDGE
Comparing Assistant
