Bakuli Deka v. State of Assam — 1999 DIGILAW 102 (GAU)

The only question requiring adjudication in this writ application pertains to the legitimacy of the second order of suspension dated 21.6.95, issued by the Director of Elementary Education, Assam, Kahilipara, suspending the petitioner, Smti Bakuli Deka, which is impugned in this application under Article 226 of the Constitution of India. 2. Petitioner, Smti Bakuli, Deka, is a School Teacher, working in Kharagaon Junior Basic School, Kharagaon in the North Salmara Sub Division. That by an order dated 6.10.93, passed by the Director of Elementary Education, Assam, “pending drawal of departmental proceeding”, petitioner Smti Bakuli Deka, was placed under suspension with immediate effect. The petitioner assailed the above order dated 6th October, 1993 before this High Court by way of a writ petition which was registered and numbered as Civil Rule No. 1550 of 1994. This Court by its order dated 8.11.94, quashed the order of suspension dated 6.10.93 and directed the respondents to take back the petitioner in service with all service benefits from that date. The authority was left with his discretion to proceed with the inquiry by initiating departmental proceeding. The Court further ordered that “the petitioner shall not be placed under suspension again” (emphasis supplied). The order of the Court was seemingly honoured by the respondents, as would appear from the order dated 15.3.95, passed by the Director of Elementary Education, which reads as follows : “In pursuance of the Hon'ble High Court's order dated 8.11.94 in respect of CR No. 1550 of 1994 and without prejudice to the departmental proceeding to be drawn up and the Police Case No. C/N/14/94 under section 420 IPC under Jogighopa Police Station against Smti Bakuli Deka, Assistant Mistress, Kharagaon Govt Junior Basic School under North Salmara who was placed under suspension vide this office order No. KAA 67/85/109 dated 6.10.93 is hereby reinstated in her original post with immediate effect. The period of suspension is hereby treated as on duty for all purpose.” A consequential order was passed by the Deputy Inspector of Schools thereby reinstating the petitioner in her original post with immediate effect treating the period of suspension as on duty with effect from 1.11.93 to 31.3.95 and onwards. The substitute teacher appointed against the vacancy caused by the suspension of the petitioner, was released from her service with effect from 20th March, 1995. The substitute teacher appointed against the vacancy caused by the suspension of the petitioner, was released from her service with effect from 20th March, 1995. Three months thereafter, the impugned order dated 21st June, 1995 was passed suspending the petitioner for the second time, with effect from 13.5.95, ie, the date on which she was arrested by the police in connection with the Jogighopa Police Station Case No. 14/94 under section 420 JPC without any prejudice to the drawal of departmental proceeding against her. It may be stated herein that the petitioner admitted that she was arrested by the police on 13.5.95, in connection with Jogighopa PS Case No. 14/94 under section 420 IPC. However, she was released on bail on the same day by the SDJM, North Salmara, Abhayapuri and the said order was made absolute on 4,8.95. 3. Mr. BP Kataki, learned counsel for the petitioner has assailed the impugned order of suspension dated 21st June, 1995 as arbitrary, discriminatory and unlawful. Mr.Kataki has further submitted that the impugned order was passed by the respondents with oblique motive only to avoid the direction of this Court rendered in the judgment and order passed in Civil Rule No. 1550 of 1994, which was apparently shown to be complied with by way of passing of the order dated 15.3.95 by the Director of Elementary Education, Assam. According to Mr. Kataki, the learned counsel for the petitioner the impugned order of suspension was not only illegal and arbitrary, but also suffers from non-application of mind. Lastly, he submitted that the impugned order was passed only with the motive to favour someone by creating a vacancy. 4. Mr. D. Goswami, learned Govt Advocate supporting the impugned order of suspension, pointed to the provisions of Rule 6 (1) of the Assam Service (Discipline and Appeal) Rules, 1964 which reads as follows : “6. Lastly, he submitted that the impugned order was passed only with the motive to favour someone by creating a vacancy. 4. Mr. D. Goswami, learned Govt Advocate supporting the impugned order of suspension, pointed to the provisions of Rule 6 (1) of the Assam Service (Discipline and Appeal) Rules, 1964 which reads as follows : “6. (1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Governor in that behalf may place a Govt servant under suspension (a) where a disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence involving moral turpitude is under investigation or trial: Provided that where the order of suspension is made by an authority lower than the Appointing Authority such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made.” 5. Mr. Goswami, the learned Govt Advocate, submitted that the petitioner was arrested in connection with a criminal offence involving moral turpitude trial of which is yet to be concluded. A criminal case against a teacher itself put the respondents in an unenviable position and keeping in mind the public interest, the impugned order of suspension was passed and, therefore, the said order of suspension was/is justified, submitted Mr. Goswami, the learned Govt Advocate. 6. The power to suspend its employee(s) is inherent and implicit on the employer. By suspension, an officer is only forbidden from discharging his duties in the office, but he remains in employment till his service is determined by the authority. An order of suspension, normally is not to be treated as a penal action since it is only a temporary cessation of the right of the employee to discharge his duty. This is only a temporary measure during the pendency of the proceeding and, therefore, the authority is empowered to interrupt in the discharge of the duties and functions of an employee. To that extent there is no controversy in this matter. The real controversy is as to the legitimacy of exercise of the power in the fact situations of the present case. Admittedly, the petitioner was earlier placed under suspension by an order dated 6.10.93; that was a deliberate and conscious decision taken by the authority to suspend the petitioner pending drawal of departmental proceeding. The real controversy is as to the legitimacy of exercise of the power in the fact situations of the present case. Admittedly, the petitioner was earlier placed under suspension by an order dated 6.10.93; that was a deliberate and conscious decision taken by the authority to suspend the petitioner pending drawal of departmental proceeding. The order was challenged in the Court of law which was set aside and the respondents were ordered to reinstate the petitioner in service. The respondents chose not to challenge the aforesaid order of reinstatement passed by the Court and ungrudgingly complied with the order of the Court by the order dated 15.3.95 passed by the Director of Elementary Education. Subsequently, she was again suspended by the authority in view of the fact that she was arrested by the police in connection with Jogighopa Police Station Case No. 14/94 under section 420 IPC. Under the Rules, 1964, as indicated above, a suspension order can be passed against a person where the person against whom the suspension order is passed is accused of a criminal offence involving moral turpitude which is under investigation or trial. There is also a deeming provision which envisages that a Govt servant who, is detained in custody where 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 (Rule 6 (2) of the Rules, 1964). It is not a case in which the said deeming provision was resorted to nor did the authority chose to resort to the former ground. The respondents suspended the petitioner only on the ground of her arrest by the police. The discretion to suspend an employee is not an arbitrary power. It is to be exercised Only as and when the situation as stated in the Rules arise. The respondents suspended the petitioner only on the ground of her arrest by the police. The discretion to suspend an employee is not an arbitrary power. It is to be exercised Only as and when the situation as stated in the Rules arise. A Division Bench in considering a similar situation in the case of Dhirendra Kumar Barthakur vs. State of Assam & others, reported in (1983) 2 GLR 459, held as follows: “Despite the apparent wide power of suspension under Rules 6 it is now well settled that the authority concerned is to keep in view several factors in exercise of its powers, such as, where continuance in the office of the Govt servant would prejudice the investigation, trial or an enquiry, or where the allegations against him are such that in the interest of maintenance of purity of the administration or the upkeep of proper standards of discipline and morale in the service, it is considered expedient to place him under suspension. It is necessary that the authority concerned passing the order must address its mind to relevant aspects and come to the bonafide conclusion that a disciplinary proceeding against him is under contemplation. No doubt suspension is not a punishment by itself; but it cannot be denied at the same time that in such cases the officers placed under suspension suffer a lot. Apart from this, suspension of a Govt servant is liability on the part of the Govt in the sense that not only the person concerned is required to be paid substantial allowance but also a substitute in his place is to be taken. The idea behind placing an officer under suspension is not to inflict punishment which can be done only when the charges are proved but to safeguard against further loss to the Govt manipulation of records, intimidation of witnesses or embarrassment to Govt in the public eye as in the case where moral turpitude is involved.” The disciplinary authority is not devoid of the power of suspension, but it is to be exercised taking into consideration the gravity of the misconduct those sought to be investigated or gone into and the nature of the evidence those are placed before the authority. No such materials are placed before this Court despite opportunities given to the respondents; nor could the respondents show as to under what circumstances, the impugned order was passed, that too after quashing of an order of suspension passed on an earlier occasion by the Court. The situation was not different when the order was quashed by this Court on 8.11.94. Rule 6 of the Rules conferred a discretion on the authority to place an employee under suspension. The discretion is. not unfettered. It is to be exercised for the attainment of the object of the statute. When a power granted by a statute is used for a purpose other than the purpose set out by the law, the exercise of discretion will amount to arbitrary and unlawful exercise of power. The decision making process will be flawed when the power is exercised for collateral purposes and outside the objects and purposes of the law. As mentioned earlier, the decision maker while exercising its discretion, took leave of the relevant considerations and persuaded by irrelevant consideration which finally affected the decision making process. 7. Considering all the facts and circumstances of the case, I hold that the order of suspension dated 21st June, 1995 is not sustainable. Accordingly, the same is set aside and the respondents are directed to reinstate the petitioner forthwith with the full back wages. The writ petition is allowed. No order as to costs.