Kulendra Kumar Das vs The State Of Assam And 2 Ors
2023 Latest Caselaw 777 Gua

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GAHC010017902023




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

                          Case No. : WP(C)/601/2023

         KULENDRA KUMAR DAS
         S/O LT. KHARGE DHAR DAS R/O FOREST COLONY WARD NO. 10 P.O. AND
         P.S BARPETA ROAD DIST. DHUBRI ASSAM


         VERSUS

         THE STATE OF ASSAM AND 2 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
         REVENUE AND DM DEPTT. DISPUR GUWAHATI 6

         2:THE INSPECTOR GENERAL OF REGISTARTION ASSAM
          RUPNAGAR GUWAHATI 32

         3:THE DISTRICT REGISTRAR
          BONGAIGAON ASSA


          Advocate for the Petitioner      : Mr. B. Kaushik, Advocate.

          Advocate for the Respondents : Mr. S. Dutta, Advocate.

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH Date of Hearing : 27.02.2023

Date of Judgment : 27.02.2023 JUDGMENT AND ORDER (ORAL) Heard Mr. B. Kaushik, the learned counsel appearing on behalf of the petitioner and Mr. S. Dutta, the learned counsel appearing on behalf of the Page No.# 2/9

respondents.

2. The case of the petitioner herein is that an FIR was filed being Bongaigaon P.S. Case 742/2021 under Sections 120(B)/420/468/471 IPC wherein there has been certain allegations made of execution of a forged registered Sale Deed bearing No. 839/779. Subsequent thereto the petitioner was arrested on 24/6/2022. On the ground that the petitioner was arrested, the respondent authorities have exercised powers under Rule 6(2) of the Assam Services (Discipline and Appeal) Rules 1964 (for short "the Rules of 1964") and had put the petitioner under suspension pending initiation of departmental proceedings made on 01.07.2022 giving effect from 24.06.2022. It further appears from the records that on 8/7/2022, the petitioner was granted the bail by the Court of the Sessions Judge, Bongaigaon in Misc. Criminal Case No. 137/2022. Thereupon the petitioner from time and again had requested the respondent authorities to revoke the suspension order and to re-instate him. However, the respondent authorities as alleged, in complete derogation to the law laid down by the Supreme Court in the case of Ajay Kr Choudhury Vs. Union of India through its Secretary & Anr., reported in (2015) 7 SCC 291 had

continued with the suspension for which the petitioner is before this court.

3. The learned counsel appearing on behalf of the petitioner, Mr. B. Kaushik has also drawn the attention of this Court to the judgment rendered in the case of Rakibuddin Ahmed Vs. The State of Assam reported in 2020 (2) GLR 621 and submitted that the principles as laid down by the Supreme Court in the case of the Ajay Kr Choudhury(supra) would also be applicable in the case of a deemed suspension done in exercise of the powers under Rule 6(2) of the 1964 Rules. The learned counsel therefore Page No.# 3/9

referred to paragraph Nos.15, 16 and 17 of the said judgment which are reproduced herein below:-

"15. We have consciously applied our mind to the query raised by the learned Single Judge. Though the case of Ajay Kumar Choudhury(Supra) is a case where suspension order was issued pending drawal of Disciplinary Proceeding and not a case of deemed suspension, the observation made by the Hon'ble Supreme Court in paragraph-20 whereby, the analogy of Section 162(2) Cr.P.C.,1976 has been brought in, we are persuaded to hold that the principles laid down in the said case cannot be restricted to an order of suspension issued only on contemplation of drawal of Disciplinary Proceeding and not for deemed suspension.

In our view, the issue should be seen from the perspective of the consequence and effect of suspension which is the same in both the cases. We also feel that no prejudice, whatsoever, would be caused to the Department by such interpretation inasmuch as no blanket order of revocation of suspension is passed and it is left to the Department to make periodic review within a period of 3(three) months and decide as to whether such suspension is required to be extended or not by assigning reasons. Whether such reasons are justified and germane can be the subject matter of a separate challenge.

In view of the aforesaid discussion, we answer the reference by holding that the principles laid down in the case of Ajay Kumar Choudhury(Supra) would also be applicable in case of deemed suspension under Section 6(2) of the 1964 Rules.

16. Further, in the instant case, it is seen that the order of suspension is also on account of pending drawal of Disciplinary Proceeding in which case, periodic review within 3(three) months is otherwise held to be mandatory.

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17. Since we have already answered the reference holding that periodic review in the case of deemed suspension is mandatory, the requirement of remanding the matter to the learned Single Judge would be a meaningless exercise and as agreed by the parties, while answering the reference, as above, we are of the opinion that a case for interference of the impugned order dated 16.02.2019 is made out.

Accordingly, the order of suspension dated 16.02.2019 issued by the Divisional Forest Officer, Guwahati Wildlife Division is hereby set aside and quashed. We. However, hasten to add that the Department would be a liberty to post the petitioner in any non-sensitive post."

4. This Court, upon filing of the instant writ petition, had issued notice on 06.02.2023 thereby directing the respondent Nos.1 & 2 to apprise this Court as regards the compliance to the law laid down by the Supreme Court in the case of Ajay Kumar Choudhury (supra).

5. Mr. S. Dutta, the learned counsel appearing on behalf of the Revenue and Disaster Management Department has placed on record the Minutes of the virtual meeting held on 15.02.2023 at 4:00 PM regarding Suspension Review Committee for the Sub-Registrar, Bongaigaon (under suspension). It was decided in the meeting that as the charge could not be submitted within 3 (three) months time, the Suspension Review Committee recommended for immediate revocation of the suspension. The said minutes is kept on record and marked with the letter "X".

6. It further transpires that the petitioner was suspended vide an order dated 01.07.2022 in terms with Rules of 1964. The petitioner was granted bail on 08.07.2022 in Misc. Criminal Case No.137/2022 and this aspect of the matter was duly brought to the attention of the Appointing Authority on 20.07.2022. In a recent judgment by this Court dated 17.02.2023 in Page No.# 5/9

the case of Rafed Ali Ahmed vs. the State of Assam & 3 Others in WP(C) No.455/2023, this Court has held that another condition has to be culled out on the basis of the law laid down in the case of Ajay Kumar Choudhury (supra) as well as in the case of Rakibuddin Ahmed (supra) to the effect that where the Memorandum of charges/ chargesheet is not served upon the delinquent officer/employee within 3 (three) months from the date of release on bail or released from any custody or imprisonment and if the Memorandum of charges/chargesheet is served, a reasoned order must be passed for the extension of suspension. It was also mentioned that the period for applying the said condition shall be taken up for consideration by the Appointing Authority when the delinquent officer/employee brings the fact that he/she has been released on bail or otherwise not in any custody or imprisonment to the Appointing Authority who has the power to vacate the suspension order. Paragraph Nos.17 to 20 of the said judgment in Refed Ali Ahmed (Supra), being relevant, are quoted herein under:-

"17. A perusal of the above Rules would show that the Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of such detention, by an order of the Appointing Authority and shall remain under suspension until further orders. The proviso to said Rule mandates that where the detention is made on account of any charge not connected with the delinquent officer's position as a Government servant or continuance in office is not likely to embarrass the Government or the Government servant in the discharge of his duties or the charge does not involve moral turpitude, the Appointing Authority may vacate the suspension order made or deemed to have been made when he is released on bail or is not otherwise in custody or imprisonment.

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18. The said provision, therefore, would show that if a Government servant who is in custody for a period exceeding 48 hours shall be deemed to be suspended with effect from the date of such detention by an order of the Appointing Authority and the Government servant shall continue to remain in suspension until further orders. Therefore, till the Government servant remains in custody or imprisonment after the initial period of 48 hours he/she shall continue to remain under suspension. The judgment of the Supreme Court in the case of Ajay Kumar Choudhury (supra) neither dealt with a case of suspension under Rule 6 (2) of the Rules of 1964 nor dealt with the issue of deemed suspension which was on account of person remaining in custody or imprisonment after the initial period of 48 hours. The said judgment of the Supreme Court also do not deal with the question as how a person in custody or imprisonment can be served with the Memorandum of charges/chargesheet or for the matter whether the delinquent employee would have a reasonable opportunity as required under Article 311 (2) of the Constitution when the delinquent officer is in custody or imprisonment.

19. The above aspect of the matter can also be seen from another angle. By virtue of Section 6 (2) of the Rules of 1964, a Government servant, upon being detained in custody for a period of exceeding 48 hours, would be deemed to have been suspended with effect from the date of such detention by an order of the Appointing Authority and shall remain under suspension until further orders. The said Sub-Rule, therefore, mandates that till the Government servant who had been suspended is not released on bail or not otherwise in custody or imprisonment, shall remain suspended. The question of setting aside the suspension till the Government servant remains in custody or imprisonment cannot arise and if it is held that such Government servant is to be reinstated for not serving the Memorandum of charges/chargesheet upon completion of 3 (three) months from the date of suspension, it would be contrary to Rule 6 (2) of the Rules of 1964 which continues to hold the field. Now coming to the judgment of the Supreme Page No.# 7/9

Court in the case of Ajay Kumar Choudhury (supra), it would be seen that reasons behind the directions in paragraph Nos.20 & 21, as quoted above, have been spelt out in paragraph Nos.11 & 12 of the said judgment. In the opinion of this Court, the directions in paragraph No.21 of the said judgment in Ajay Kumar Choudhury (supra) can only be applied when the Government servant is released on bail or otherwise not in custody or imprisonment.

20. A very pertinent question, therefore, arises as to from which period the directions in paragraph No.21 of the judgment of the Supreme Court in the case of Ajay Kumar Choudhury (supra) shall apply in the case of Deemed Suspension. It would be seen that the judgment of the Division Bench of this Court in the case of Rakibuddin Ahmed (supra), however, with due respect, did not deal with this question. An insight to the same can be unraveled from the proviso to Rule 6 (2) of the Rules of 1964. The proviso speaks upon the following conditions upon which the Appointing Authority may vacate the suspension order when the Government servant is released on bail or is not otherwise in custody or imprisonment. They are:-

(i) Where the detention is made on account of any charge not connected with the Government servant's position; or

(ii) Where the detention is not likely to embarrass the Government or the Government servant in discharge of his duties; or

(iii) Where the charge does not involve moral turpitude.

However, upon applying the judgment of the Supreme Court in the case of Ajay Kumar Choudhury (supra) and the judgment of the Division Bench of this Court in the case of Rakibuddin Ahmed (supra), a fourth condition can be culled out, i.e.:-

(iv) Where the Memorandum of charges/ chargesheet is not Page No.# 8/9

served upon the delinquent officer/employee within 3 (three) months from the date of release on bail or released from any custody or imprisonment and if the Memorandum of charges/chargesheet is served, a reasoned order must be passed for the extension of suspension.

Now the question, therefore, arises that when the above mentioned conditions can be taken into consideration by the Appointing Authority. In the opinion of this Court, the conditions above noted can only be taken into consideration when the delinquent officer/employee brings the fact that he/she has been released on bail or otherwise not in any custody or imprisonment to the Appointing Authority who has the power to vacate the suspension order."

7. In the instant case, it would be seen that the Appointing Authority on 01.07.2022 issued the suspension order on the ground that the petitioner was arrested on 24.06.2022 by applying Rule 6 (2) of the Rules of 1964. Thereupon, on 08.07.2022, the petitioner was released on bail which was brought to the attention of the Appointing Authority on 20.07.2022. Under such circumstances, applying of law laid down in the case of Rafed Ali Ahmed (supra), the respondent authorities having not served the

Memorandum of charges/chargesheet upon the petitioner could not have continued to place the petitioner under suspension after the lapse of three months from the date of due intimation. It also appears from the minutes of the virtual meeting held on 15.02.2023 that the Suspension Review Committee had also acknowledged the said fact and recommended for immediate revocation of the suspension order.

8. Mr. B. Kaushik, the learned counsel for the petitioner submitted that it is only a recommendation, which however has not been acted upon till date.

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9. Considering the above, this Court, therefore, directs the respondent No.1, i.e. the Commissioner & Secretary to the Government of Assam, Revenue & Disaster Management Department, Dispur, Guwahati-781006 to forthwith reinstate the petitioner upon a certified copy of the instant order being served upon him.

10. It is also made clear that the respondent authorities would be at liberty to transfer the petitioner to any of its offices within the State so as to sever any local or personal contacts that the petitioner may have and which he may misuse for obstructing the investigation against him. Further, the Government is also given the liberty to prohibit the petitioner from contacting any person or handling records and documents till the stage of the petitioner prepares his defence.

11. With the above observations and directions, the instant writ petition stands disposed of.

JUDGE

Comparing Assistant