Page No.# 1/7 vs The State Of Assam And 4 Ors
2022 Latest Caselaw 3454 Gua

                                                                     Page No.# 1/7

GAHC010147472022




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

                                 Case No. : WP(C)/4891/2022

            RIJUMONI KATAKI
            S/O LT. NABA KATAKI,
            VILL.- MILANPUR, NAGAON, P.O.- NAGAON, DIST.- NAAON, ASSAM, PIN-
            782001.



            VERSUS

            THE STATE OF ASSAM AND 4 ORS.
            REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
            REVENUE AND D.M. DEPTT., ASSAM, DISPUR, GUWAHATI- 6.

            2:THE DIRECTOR OF LAND RECORDS AND SURVEYS ETC.
            ASSAM
             BAMUNIMAIDAM
             GUWAHATI- 21.

            3:THE DEPUTY COMMISSIONER
             HOJAI
             SANKARDEV NAGAR
             P.O.- SANKARDEV NAGAR
             DIST.- HOJAI
            ASSAM
             PIN- 782442.

            4:THE CIRCLE OFFICER
             DOBAKA REVENUE CIRCLE
             P.O.- DOBAKA
             DIST.- HOJAI
            ASSAM
             PIN- 782440

Advocate for the Petitioner   : MR. N J DUTTA
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Advocate for the Respondent : GA, ASSAM




                                 BEFORE
               HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

Date : 09-09-2022

Heard Mr. N.J. Dutta, learned counsel for the petitioner. Also heard Mr. J. Handique, learned counsel for the respondent Nos. 1 & 2 and Mr. J.K. Goswami, learned counsel for the respondent Nos. 3 & 4.

2. The petitioner's grievance in this case is that though the petitioner had been suspended on 01.02.2022, pending Departmental Proceedings in terms of Rule 6(1) of the Assam Service (Disciplinary & Appeal) Rules, 1964 (as amended), no Departmental Proceeding has been initiated against the petitioner till date. Further, though Dobaka P.S. Case No. 43/2022 under Section 120 B/384/409/420 IPC has been registered against the petitioner, no Charge-sheet has been filed till date.

3. The petitioner's counsel submits that in terms of the judgment of the Apex Court in the case of Ajay Kumar Choudhury Vs. Union of India & Others , reported in (2015) 7 SCC 291, the suspension order should be set aside.

4. Mr. J.K. Goswami, learned counsel for the respondent Nos. 3 & 4 has submitted a letter dated 06.08.2022 issued by the Deputy Commissioner, Hojai, which is to the effect that the Inquiry Officer and Presenting Officer have been appointed, vide Order dated 03.06.2022 and that a Departmental Proceeding had been initiated and is under process.

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5. Mr. J.K. Goswami, learned counsel for the respondent Nos. 3 & 4 has also submitted a letter dated 07.09.2022 issued by the Addl. Deputy Commissioner (P), Hojai, which is to the effect that the suspension order of the petitioner had been reviewed by the respondent authority, within the period of 90 days. He has also submitted the file notings, which purportedly contain reasons given by the Review Committee, to extend the petitioner's suspension.

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

7. The Apex Court in the case of Ajay Kumar Choudhury (supra) has held that the currency of a suspension order should not extend beyond 3 months, if within the said period, the Memorandum of Charges/Charge-sheet is not served on the delinquent officer/employee. The Apex Court has further held that if the Memorandum of Charges/Charge-sheet is served, a reasoned order must be passed for the extension of the suspension.

8. In the present case, no Charge-sheet has been filed in the criminal case against the petitioner and the fact that the Inquiry Officer and Presenting Officer have been appointed only on 03.06.2022, clearly goes to show that the Departmental Proceeding has not been initiated, within 3 months from the date of issuance of the suspension order dated 01.02.2022.

9. The only question that needs to be decided is whether a review had been undertaken by the authorities, for extension of the petitioner's suspension order within the period of 90 days. Though the letter 07.09.2022 issued by the Addl. Deputy Commissioner (P), Hojai states that a review of the petitioner's suspension had been undertaken and that the extension of the suspension has Page No.# 4/7

been approved within 90 days, the file notings, which are annexed to the letter dated 07.09.2022, does not indicate that there has been any review undertaken for extending the petitioner's suspension. The file notings only state that the period of suspension is about to be completed by the end of April, 2022 and that Departmental Proceeding has been drawn up and no Charge-sheet has been filed by the Police. The closest thing that the respondents have stated in the note sheet, with regard to reviewing the petitioner's suspension, is to state as follows:- "However, suspension of Rijumoni Kataki and others may be reviewed, within the period of 90 days and subsistence allowance @ 50% for a period of 3 months w.e.f. 01.02.2022 to 30.04.2022 and thereafter, 75% of the basic pay till reinstatement of service, may be allowed if pleases".

10. In the case of Ajay Kumar Choudhury (supra), the Apex Court at paragraph No. 11 has stated that suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature.

11. As stated in the foregoing paragraph, there has been no discussion by the respondent authorities in the file notings that the petitioner's suspension order was required to be extended or that a decision had been taken that it was extended. The above clearly goes to show that there has been no review of the petitioner's suspension order for extending the suspension.

12. The above being said, the Manual of Departmental Proceedings issued by the Department of Personnel, Government of Assam states at paragraph No. Page No.# 5/7

2.1.8 as follows:-

"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 of 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 that the Personnel Department could advise whether any further extension of the period of suspension should be permitted or not. Where the services of a Government servant are lent to the Central Government, any other State Government or to local or other Authority, the Borrowing Authority will have the powers of the Appointing Authority for the purpose of placing the officer under suspension and of the Disciplinary Authority for the purpose of initiating a disciplinary proceeding against him subject to the provisions of the Assam Services (Discipline and Appeal) Rules, 1964.

13. A perusal of paragraph 2.1.8 of the Manual of Departmental Proceeding shows that for the continued suspension of a Government Servant beyond 3 months, the authority concerned should move the Personnel Department through the Administrative Department, well before the expiry of the period of 3 months, by a letter detailing the nature of allegations and the reasons for which charges could not be prepared, so that the Personnel Department could advice whether any further extension of the period of suspension should be permitted or not.

14. As is clear from the file notings submitted by Mr. J.K. Goswami, learned Page No.# 6/7

counsel for the respondent Nos. 3 & 4, paragraph No. 2.1.8 of the Manual of Departmental Proceedings has not been followed by the respondent authorities. Mr. J.K. Goswami has also submitted Order dated 26.04.2022 issued by the Addl. Deputy Commissioner, Hojai, which states that the petitioner, who is under suspension, is to be granted subsistence allowance @ 50% for a period of 3 months and thereafter, @ 75% of the basic pay. The said order cannot be said to be an order extending the petitioner's suspension. The file notings do not indicate that any decision has been taken to extend the petitioner's suspension.

15. In view of the reasons stated above, this Court is of the view that the suspension order dated 01.02.2022 is not sustainable beyond the period of 90 days from the date of issuance of the same, as no review for extension of the suspension was undertaken. Consequently, the suspension order is set aside.

16. The respondents are directed to reinstate the petitioner. However, the respondents are given the liberty to transfer the petitioner to any of its offices, within the State of Assam, so as to sever any local or personal contact that the petitioner may have and which he may misuse for obstructing the investigation against him. The respondents may also prohibit the petitioner from contacting any person, or handling records and documents.

17. The letter dated 07.09.2022, Order dated 26.04.2022 and "file notings" are made part of the record and marked as Annexure- 'X, Y & Z' respectively. The Order dated 06.08.2022 is also made a part of the record and marked as Annexure-'A'.

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18. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant