Kongkendra Fouzder vs State Of Assam And 4 Ors
2025 Latest Caselaw 7592 Gua

Gauhati High Court

Kongkendra Fouzder vs State Of Assam And 4 Ors on 24 September, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

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GAHC010227042024




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

                         Case No. : WP(C)/5704/2024

         KONGKENDRA FOUZDER
         SON OF SRI ASHWINI KUMAR FOUZDER, WARD NO.1, GAURIPUR,
         DISTRICT DHUBRI, ASSAM, PIN 783331



         VERSUS

         STATE OF ASSAM AND 4 ORS.
         TO BE REPRESENTED BY THE COMMISSIONER OF TAXES, GOVERNMENT
         OF ASSAM, KAR BHAWAN, GANESHGURI, DISPUR, GUWAHATI -06.

         2:JOINT COMMISSIONER OF TAXES
          GOVERNMENT OF ASSAM
          KAR BHAWAN
          GANESHGURI
          DISPUR
          GUWAHATI -06.

         3:DEPUTY COMMISSIONER OF TAXES
          DHUBRI ZONE
          P.O DHUBRI
          DISTRICT DHUBRI
         ASSAM PIN- 783301

         4:ASSISTANT COMMISSIONER OF TAXES OF DHUBRI UNIT
          DHUBRI
          DISTRICT DHUBRI
         ASSAM
          PIN- 783301.

         5:SUPERINTENDENT OF TAXES CIRCLE-2 (RECOVERY)
          BARPETA UNIT
          P.O BARPETA
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             DISTRICT BARPETA
             ASSAM
             PIN- 781301

Advocate for the Petitioner   : MR. T DAS, MR. H ALI,MS. N GOGOI

Advocate for the Respondent : SC, FINANCE AND TAXATION,




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

24.09.2025 Heard Ms. N. Gogoi, learned counsel for the petitioner. Also heard Mr. B Chowdhury, learned Standing Counsel, Finance.

2. The petitioner is aggrieved by the fact that he has been placed under suspension by the order dated 09.10.2024.

3. The learned counsel for the petitioner submits that by the said order, the petitioner was placed under suspension pending initiation of disciplinary proceedings. It is submitted that subsequently the charge sheet was served on the petitioner but beyond the period of 90 days. It is submitted that the petitioner continues to be under suspension without there being any review to examine the necessity of continuance of the suspension order issued against the writ petitioner.

4. The learned counsel for the petitioner submits that this is completely is in violaton of the law laid down by the Apex Court rendered in Ajay Kumar Choudhury Vs. Union of India through its Secretary and Anr., reported in (2015) 7 SCC 291 and followed in several judgments rendered by this Court. It is submitted that since there was no review undertaken by the departmental authorities, the suspension order should be interfered with.

5. Mr. B Chowdhury, learned Standing Counsel, Finance on the other hand Page No.# 3/5

submits that the departmental proceeding is at the stage of examination of witnesses. He however fairly submits that no steps have been undertaken for review of the continuance of suspension in respect of writ petitioner. He submits that once the enquiry is concluded whatever order(s) are passed by the disciplinary authority depending on that, the petitioner's suspension will also be considered.

6. Having heard the learned counsel for the parties, it is seen that the petitioner has been placed under suspension by the impugned order dated 09.10.2024, he has continued to be under suspension. The departmental proceedings have been initiated which however has not been concluded.

7. Perusal of the Judgment of the Apex Court in Ajay Kumar Choudhury (Supra), the Apex Court directed that ordinarily suspension order is to be reviewed within prior to expiry of 90 days if the show cause notice has not been served. The relevant paragraph of Ajay Kumar Choudhury (Supra) is extracted 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 recognised 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."

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8. Following this Judgment, several Judgments and orders have been passed by this Court. In Reekib Uddin Ahmed Vs. State of Assam and Ors, [W.P(C) No. 3218/2019], a Division of this Court while examining the matter of suspension came to a finding that unless the review is mandatorily undertaken within a period of 90 days for continuance of the suspension, the suspension is required to be revoked. This is the finding of the Division Bench rendered in the State of Assam Vs. Ajit Sonowal & Ors, [W.A No. 114/2022], the Division Bench held that unless the show cause notices issued within a period of 90 days, the review of suspension is mandatorily required to be undertaken prior to expiry of 90 days.

9. In the facts of the case on the basis of the submissions and the materials placed before the Court, it is seen that show cause notice was also belatedly issued on 17.03.2025. The Departmental proceedings are underway and is presently at the stage of examination of witnesses as is submitted by the learned counsel for the State.

10. Under such circumstances, taking into account the Judgments referred to and relied upon by the learned counsel for the parties, it is seen that as the review of suspension was not undertaken within 90 days nor any show cause notice was issued within 90 days, the suspension order is liable to be set aside. It is ordered accordingly.

11. During the course of the hearing, the learned counsel for the respondents submitted that the petitioner is serving as a Senior Assistant under the Assistant Commissioner of Taxes, Dhubri Unit. Under the said office of the Assistant Commissioner of Taxes, Dhubri, Unit-Dhubri, there are four circles. The petitioner was posted as a Senior Assistant and entrusted with work relating to Circle No. (ii) & (iii). The show cause notice is enclosed to the affidavit filed by the respondents and it is seen that there are four charges brought against the petitioner.

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Therefore, although this Court has interfered with the order of suspension dated 09.10.2024, in view of the pendency of the departmental proceedings against the petitioner for which he was placed under suspension while serving and entrusted with work relating to Circle (ii) & (iii) and considering that there are other circles available under the Office of the respondent No.3, the respondent authorities will reinstate the petitioner in any of the other circles except Circles (ii) & (iii) during the pendency and till the conclusion of the departmental proceedings.

12. The respondents will pass appropriate orders within two weeks from the date of receipt of a certified copy of this order and will consider the reinstatement of the petitioner to any of the two circles namely (i) and (iv) under the office of the Assistant Commissioner of Taxes, Dhubri Unit.

The writ petition accordingly stands disposed in terms of the above.

JUDGE

Comparing Assistant