Gauhati High Court
Saumyabrata Bhattacharjee vs The State Of Assam And Anr on 26 May, 2025
Author: Nelson Sailo
Bench: Nelson Sailo
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GAHC010019212025
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/659/2025
SAUMYABRATA BHATTACHARJEE
S/O-LATE HARENDRA KUMAR BHATTACHARJEE, R/O-ZERO POINT LANE,
KATHAL ROAD, SILCHAR-05, DISTRICT-CACHAR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
GENERAL ADMINISTRATION DEPARTMENT DISPUR, GUWAHATI-06.
2:THE DISTRICT COMMISSIONER
CACHAR
SILCHAR-01
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A H M R CHOUDHURY
Advocate for the Respondent : GA, ASSAM,
BEFORE
HON'BLE MR. JUSTICE NELSON SAILO
ORDER
26.05.2025
Heard Mr. H R A Choudhury, learned Senior Counsel assisted by Mr. A H M
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R Choudhury for the petitioner. Also heard Mr. J K Goswami, learned Addl.
Senior Government Advocate for the respondents. Having regard to the nature
of the case projected by the petitioner, the writ petition is taken up for disposal
at this stage.
[2.] By filing this writ petition, the petitioner has challenged the Order dated
18.06.2024 and 13.12.2024 by which, he was placed under suspension w.e.f.,
12.06.2024 pending Departmental Proceedings against him and the extension of
his suspension period respectively. It is the case of the petitioner that after
being suspended as such, he has not received his subsistence allowance at the
increased rate of 75% and therefore, prays for a direction to the respondent
authorities to reinstate him back into service. The petitioner contends that after
being released from custody, he informed the respondent authority concerned
by writing a Letter dated 22.08.2024 and thereafter, a reminder on 21.09.2024.
Despite the same and despite passage of 90 days from the initial date of his
suspension, the respondent authority has not reinstated him into service in
violation of the Apex Court's decision rendered in Ajay Kumar Choudhary vs.
Union of India, reported in (2015) 7 SCC 291. The learned counsel for the
petitioner has submitted that against the show-cause notice given to the
petitioner alongwith Memorandum of Charge and the list of witnesses on
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19.09.2024, the petitioner submitted his reply to the show-cause notice on
27.09.2024 and thereafter, another Letter on 25.11.2024 for revoking his
suspension.
[3.] The learned counsel submits that the petitioner had also intimated to the
authority concerned in his show-cause reply that he had submitted his release
order by courier and therefore, the respondent authority concerned ought to
have taken proper steps in terms of his Communication dated 22.08.2024.
Despite the same, the respondent authority denied receiving such
communication, except for the reminder dated 21.09.2024 and proceeded to
pass the impugned Order dated 13.12.2024, extending the period of his
suspension until further orders. The learned Senior Counsel, therefore, submits
that the decision of the Apex Court in Ajay Kumar Choudhary (supra) and also a
decision rendered by a Division of this Court in the State of Assam vs. Ajit
Sonowal & 3 Ors., reported in 2023 0 Supreme (GAU) 199 being violated by the
respondent authority, the petitioner should be reinstated back into service and
the proportionate increase in the subsistence allowances, which was denied to
him be also paid to him.
[4.] Mr. J K Goswami, learned Addl. Senior Government Advocate, on the
other hand, submits that the Communication dated 22.08.2024 was no only not
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received by the respondent authority concerned but the same has been
addressed to the Addl. Deputy Commissioner, Personnel Branch, Cachar, Silchar,
which is not the authority who were issued the suspension order. The petitioner
has only brought his release from custody through his Communication dated
21.09.2024 and thereafter, the period of 3 months' time will count from that
date. Accordingly, the continuation of his suspension was passed on 13.12.2024,
which does not call for any interference by this Court. The learned State counsel
also submits that as per the records, a further suspension order has been
passed on 10.03.2025 which is until further orders. The learned State counsel,
referring to paragraph No. 22 of Ajay Kumar Choudhary (supra) submits that
when a charge-sheet has been served, the direction for non-extension of
suspension period beyond 3 months is no longer relevant which has happened
in the instant case. He submits that in terms of the Apex Court's decision in Ajay
Kumar Choudhary (supra), the Govt. of Assam, Department of Personnel (B)
had issued an O.M dated 04.02.2020 which provides that after the issuance of
memorandum of charges/charge-sheet, the Senior Most Secretaries shall
undertake a review within 6 months as regards the desirability to further
continue with the suspension order. The same has been duly complied with in
the instant case and thus, no interference called for at this stage.
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[5.] The learned State counsel lastly submits that in Rafed Ali Ahmed vs.
State of Assam & Ors., reported in 2023 (3) GLT 718, wherein a Co-ordinate
Bench of this Court has held that a period of 3 months from the date of release
of bail or from custody or from imprisonment would count from the date the
employee/officer concerned brings the fact of his/her release to the appointing
authority, who has the power to vacate the suspension order.
[6.] I have heard the submissions made by the learned counsels and I have
perused the materials available on record.
[7.] Facts not in dispute is that the petitioner was placed under suspension
vide Order dated 18.06.2024 w.e.f. 12.06.2024 i.e., the date of his arrest,
pending drawal of the Departmental Proceedings against him. Thereafter, the
petitioner was given a show-cause under Rule 9 of the Assam Services
(Discipline and Appeal), 1964 read with Article 311 of the Constitution of India
to show-cause by submitting written statement of defence within 10 days of
receipt of the communication. Alongwith the show-cause, the statements of the
allegation and the list of witness was also given to him. The petitioner submitted
his reply to the show-cause on 27.09.2024. Thereafter, he also submitted a
Letter dated 25.11.2024 seeking revocation of his suspension. However, the
respondent authority concerned (respondent No. 2) issued the impugned Order
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dated 13.12.2024 extending the suspension period of the petitioner until further
orders. Although the petitioner has maintained that he had intimated about his
release from custody on 22.08.2024 to the Addl. Deputy Commissioner,
Personnel Branch, Cachar, Silchar wherein, the seal and the receipt number and
date was also endorsed by the receiving authority, the respondents have denied
receipt of the same. Mr. J K Goswami, learned State counsel submits that in the
record which has been furnished to him, the same is not available. He reiterates
the fact that the petitioner's release from custody was received only on
21.09.2024 where he sent the reminder and which is available in the record.
[8.] Coming to the decision relied upon by the parties, it may be seen that
the Apex Copurt in Ajay Kumar Choudhary (supra) at paragraph No. 21 has held
that the currency period of suspension order should not extend beyond 3
months if within this period the memorandum of charges/charge-sheet is not
served on the delinquent officer/employee. However, if the memorandum of
charge/charge-sheet is served, a reasoned order must be passed for the
extension of the suspension. At paragraph No. 22 of the said judgment as
already noticed herein above, the Apex Court in the facts of that case held that
since the appellant had already been served with charge-sheet, the direction
given in paragraph No. 21 may no longer hold good. Under the circumstance,
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the appellant may challenge the continuation suspension in any manner, if so
advised and in accordance with law. Similarly, a Division Bench of this Court in
State of Assam & Anr. Vs. Ajit Sonowal & 3 Ors. (supra) had relied upon the
decision of the Apex Court in Ajay Kumar Choudhary (supra).
[9.] Further, a Co-ordinate Bench of this Court in Rafed Ali Ahmed (supra) had
also held that the period of 3 months as prescribed in Ajay Kumar Choudhary
(supra) would count in case of an employee who is arrested from the date he
brings to the notice to the appointing authority to revoke a suspension order the
fact about his release from custody.
[10.] Coming back to the present case, the respondents have taken the stand
that the Communication dated 22.08.2024 submitted by the petitioner to the
Addl. Deputy Commissioner, Personnel Branch was not received except for the
reminder dated 21.09.2024, counting of 90 days would begin from 21.09.2024.
Such being the case, the extension of the suspension order dated 13.12.2024 is
only in order. However, the fact remains that in the reply to the show-cause
dated 19.09.2024 submitted by the petitioner on 27.09.2024 which was
addressed to the District Commissioner, Cachar Personnel Branch, Silchar, he
stated that he submitted his release order and the courier receipt copy to the
said authority vide Application dated 22.08.2024. Likewise, the subsequent
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letter submitted by the petitioner on 25.11.2024 before the respondent No. 2,
the petitioner again referred to his previous show-cause reply dated 27.09.2024.
[11.] Such being the position, it is clear that the petitioner had informed the
respondent No. 2 about being released from custody. Although, the
Communication dated 22.08.2024 may not be addressed to the respondent No.
2 but the fact remains that the show-cause reply as well as the Communication
dated 25.11.2024 is indeed addressed to respondent No. 2 who is supposed to
be aware of the petitioner's release from custody in terms of the communication
made by the petitioner. Therefore, admittedly, the impugned Order dated
13.12.2024 having not been passed within the time frame of 3 months as
stipulated in Ajay Kumar Choudhary (supra) and also in view of the decision in
Rafed Ali Ahmed (supra) as well, the same is not sustainable and accordingly,
set aside. The subsequent order of further suspension said to have been passed
on 10.03.2025 shall also be vitiated in view of the observation and direction
already made herein. The respondent No. 2 is directed to reinstate the
petitioner within 15 days from the date of receipt of a certified copy of this
order. The respondent No. 2 shall also grant the petitioner the subsistence
allowance which remains unpaid to him till his reinstatement. Needless to say
that the other benefits that may be entitled to the petitioner shall be governed
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by the order to be passed once the proceeding drawn against him is concluded.
[12.] With the above observation and direction, the Writ Petition stands
disposed of. No cost.
JUDGE
Comparing Assistant
