Gauhati High Court
Md. Hamidur Rahman vs The State Of Assam And 2 Ors on 16 September, 2022
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GAHC010164272022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5352/2022
MD. HAMIDUR RAHMAN
SON OF TAZIBAR RAHMAN,
R/O- VILLAGE- SIMLABARI,
P.O.- FUTKIBARI,
P.S.- SAPATGRAM,
DIST- DHUBRI, ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
SECONDARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI- 781006.
2:THE DIRECTOR OF SECONDARY EDUCATION
ASSAM
KAHILIPARA
GUWAHATI- 781019.
3:THE INSPECTOR OF SCHOOLS
DHUBRI DISTRICT CIRCLE
DHUBRI
P.O. AND DISTRICT- DHUBRI
ASSAM
PIN- 783301
Advocate for the Petitioner : MR. S ISLAM
Advocate for the Respondent : SC, SEC. EDU.
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BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
16-09-2022
Heard Shri S. Islam, learned counsel for the petitioner. This Court on the
earlier occasions had directed the learned Standing Counsel for the Department
to obtain the instructions.
Shri N.J. Khataniar, learned counsel for the Secondary Education
Department has placed before this Court a copy of the written instructions
dated 08.09.2022.
The petitioner is an Assistant Teacher (Science) and is working in the
Palash Kandi Pre-Sr. Madrassa to the district of Dhubri. The petitioner was
arrested in a Forest Case and was released on bail on 04.01.2022 and on
furnishing of the said information, the petitioner was placed under suspension
vide an order dated 20.12.2021.
It is the case of the petitioner that more than eight months have passed
and till now neither any Departmental Proceedings nor any review has been
done. Shri Islam, the learned counsel for the petitioner accordingly prays for a
direction for interference with the impugned order of suspension.
As stated above, the written instructions dated 08.09.2022 has been
placed before this Court.
Shri Khataniar, the learned counsel for the Secondary Education
Department has fairly submitted that till now no Departmental Proceeding has
been initiated and it is also a fact that no review regarding the extension or
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otherwise of the order of suspension has been made.
The Hon'ble Supreme Court in the case of Ajay Kumar Choudhary vs.
Union of India & Anr. reported in (2015) 7 SCC 291 has clearly laid down
that an order of suspension cannot be sustained after three months if in the
meantime no Departmental Proceeding has been initiated and no review to
extend such order of suspension is made.
For ready reference, paragraph 21 of the said judgment is extracted
herein below:
"21. We, therefore, direct 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/employee; if the memorandum of charges/charge-
sheet is served, a reasoned order must be passed for the extension
of the suspension. As in the case in hand, the Government is free to
transfer the person concerned 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 may also prohibit
him from contacting any person, or handling records and documents
till the stage of his having to prepare his defence. We think this will
adequately safeguard the universally recognized principle of human
dignity and the right to a speedy trial and shall also preserve the
interest of the Government in the prosecution. We recognise that
the previous Constitution Benches have been reluctant to quash
proceedings on the grounds of delay, and to set time-limits to their
duration. However, the imposition of a limit on the period of
suspension has not been discussed in prior case law, and would not
be contrary to the interests of justice. Furthermore, the direction of
the Central Vigilance Commission that pending a criminal
investigation, departmental proceedings are to be held in abeyance
stands superseded in view of the stand adopted by us."
A Division Bench of this Court in the case of Rakibuddin Ahmed Vs.
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State of Assam reported in 2019 (5) GLT 600 had also answered a reference
that the principles laid down in Ajay Kr. Choudhury (supra) would also apply
in a case of deemed suspension wherein a Government Employee is put under
suspension on account of his arrest and being in custody for more than 48
hours.
In that view of the matter, this Court is of the unhesitant opinion that the
impugned order of suspension dated 20.12.2021 is unsustainable in law and is
accordingly set aside.
The authorities are however at liberty to transfer the petitioner in any
non-sensitive posting.
The writ petition accordingly stands disposed of.
A copy of the written instructions dated 08.09.2022 is made part of the
records.
JUDGE
Comparing Assistant
