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2005 DIGILAW 418 (GAU)

Matiur Rahman v. State of Assam

2005-05-30

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. The challenge in the present writ petition is against the order dated 5.9.1997 placing the petitioner under suspension under Rule 6(b) of the Assam Services (Discipline and Appeal) Rules, 1965 (hereinafter referred to as the Rules). As the aforesaid suspension of the petitioner has continued till date, the continuation of the same on grounds other than what have been pleaded in the writ petition, have also been urged at the oral hearing. 2. The petitioner, who was at the relevant point of time serving as an Accountant in the Office of the Officer-in-Charge, I.C.D.S. Project at Howly, was initially placed under suspension by an order dated 31.3.1993. The said order of suspension-dated 31.3.1993 was challenged by the writ petitioner by instituting a writ proceeding registered and numbered as C. R. No. 2932 of 1993. The aforesaid writ proceeding was answered by the Court in favour of the writ petitioner and interference having been made with the impugned suspension of the petitioner, the authority by issuing a consequential order dated 17.11.1993, revoked the suspension of the petitioner and he was reinstated in service. The petitioner thereafter continued to be in service when by a Memo, dated 30.10.1995 certain charges were brought against the petitioner, on the basis of which a disciplinary proceeding was initiated against him. While the aforesaid proceeding was pending, in respect of the same allegations, a FIR was lodged, inter alia, against the writ petitioner and charge-sheet having been submitted against the petitioner in the criminal case instituted, which was investigated by the C.B.I., the petitioner was once again placed under suspension by the order dated 5.9.1997. The aforesaid order was passed in exercise of the powers conferred by Rule 6(b) of the Rules. The departmental proceeding against the petitioner having dragged and the criminal case instituted against him, i.e., Special Case No. 6(C) of 1997 in the Court of the Special Judge, Assam, Guwahati having made tardy progress, the petitioner had instituted this writ application in the year 2003 calling into question the legality of the order of suspension dated 5.9.1997 and the continuation thereof, 3. I have Heard Mr. U. Bhuyan, learned Counsel for the petitioner and Mr. R.K. Bora, learned Government Advocate, Assam. 4. Mr. I have Heard Mr. U. Bhuyan, learned Counsel for the petitioner and Mr. R.K. Bora, learned Government Advocate, Assam. 4. Mr. Bhuyan, learned Counsel for the petitioner, by placing before the Court the averments made in the writ petition, has submitted that the petitioner continues to be under suspension since the year 1997 and neither the departmental proceeding nor the criminal case instituted against him have been concluded. The petitioner is to superannuate shortly, i.e., in approximately 2(two) years time and, therefore, the further argument advanced is that the impugned suspension, by the efflux of time, has proved to be oppressive and, therefore, unwarranted in law. Pointing to the specific averments made in the writ petition, learned Counsel for the petitioner has also submitted that persons similarly situated have been granted the benefit of reinstatement in service either on the orders of the Court or by the Government acting on its own but similar relief has not been afforded to the petitioner. In this regard, learned Counsel has drawn the attention of the Court to an order dated 3.5.2000 passed by the Court in WP(C) No. 6386 of 1999 (Jiauddin Ahmed v. State of Assam and Ors.) and the consequential orders issued by the Governor on. 28.12.2001, not only revoking the suspension order against the aforesaid person but also dropping the departmental proceeding pending against him. The order, dated 28.12.2001 passed by the Governor adopting the aforesaid course of action has been placed before the Court by the learned Counsel for the petitioner at the hearing. That apart, Mr. Bhuyan, learned Counsel for the petitioner has contended that the persons named in paragraph 17 of the writ petition including one Janardan Mishra, who is also a chargesheeted accused in the same criminal case has been reinstated in service while similar relief to the petitioner has been denied. In this regard, the order dated 31.10 1998 passed by the learned Special Judge, Assam, Guwahati in Special Case No. 6(C)of 1999 framing charges against the accused including the writ petitioner has been placed before the Court. Shri Bhuyan, learned Counsel for the petitioner has finally contended that the departmental proceeding being inextricably wound up with the criminal case, there is no reasonable prospects of the departmental proceeding being brought to an early conclusion. The criminal, case is yet to make any substantial progress and examination of witnesses is yet to be completed. Shri Bhuyan, learned Counsel for the petitioner has finally contended that the departmental proceeding being inextricably wound up with the criminal case, there is no reasonable prospects of the departmental proceeding being brought to an early conclusion. The criminal, case is yet to make any substantial progress and examination of witnesses is yet to be completed. In such circumstances, if the petitioner has to retire while remaining under suspension, grave injustice and harm will be caused to the petitioner, on which account the discretionary power under Article 226 of the Constitution may be invoked to facilitate the reinstatement of the petitioner in service. 5. The learned Government Advocate, Assam, at the hearing, has placed before the Court, the affidavit filed by the Director of Animal Husbandry and Veterinary, Assam in order to contest the claims made on behalf of the writ petitioner. In the aforesaid affidavit filed by the Director, the reasons for the continuation of the departmental proceeding against the petitioner have been stated to be on account of the pendency of the criminal case in connection with which the records relevant to the departmental proceeding have been seized by the investigating authority. In the affidavit filed, the Director has also taken the stand that, as the petitioner is an accused in a criminal case under the Prevention of Corruption Act, the continuance of the suspension of the petitioner until the criminal, case comes to an end, would be justified. However, the statements made by the petitioner that similarly situated persons have been treated differently, as noticed above, have not been refuted by the Director in the affidavit filed. 6. In the instant case, the petitioner has been put under suspension under Rule 6(b) of the Rules. Rule 6(b) of the Rules confers power to place a Government servant under suspension, if any criminal case, against such a Government Servant, involving moral turpitude, is pending investigation. In the present case, undoubtedly, there is a criminal case against the writ petitioner, under the provisions of the Prevention of Corporation Act, which is pending before the competent Court for trial. The order dated 5.9.1997 placing the petitioner under suspension, therefore, would be within the four-corners of the power of the appointing authority. In the present case, undoubtedly, there is a criminal case against the writ petitioner, under the provisions of the Prevention of Corporation Act, which is pending before the competent Court for trial. The order dated 5.9.1997 placing the petitioner under suspension, therefore, would be within the four-corners of the power of the appointing authority. However, the question that the Court has to address itself in the present case is whether the aforesaid suspension should be allowed to continue indefinitely, particularly in a situation, when an early culmination of the criminal trial is nowhere in sight. In this regard, what would be relevant for an answer to the above question is the purpose for which the power under Rule 6(b)of the Rules has been conferred on the appointing authority. This Court has noticed that Rule 6(b) covers a special situation, i.e., pendency of a criminal case against a Government servant involving moral turpitude. Ordinarily, the power to suspend is exercised so as to prevent the concerned Government Servant from having any access to the records relevant to the departmental proceeding or to prevent such a government servant from influencing the departmental proceeding, in any way. However, in a situation, where a criminal case is pending against a Government Servant, the rule-making authority had thought it appropriate that the government servant involved in criminal case may be placed under suspension so that public confidence in the system of laws and administration that a good government has to ensure is not eroded. Government servants, who are involved in criminal cases, are, therefore, not to be ordinarily allowed to resume work and in such cases the relationship of master and servant is kept in abeyance until such time that the Government Servant is exonerated of the charges leveled. But what would happen in a situation where neither the departmental proceeding nor the criminal case on account of which the suspension order was passed initially has any reasonable chances of early conclusion ? Is the Government servant destined to remain under suspension indefinitely ? These are the moot questions that will have to be answered by the Court in the present proceeding. The answer to the above questions cannot be found in any straight jacket formula. Is the Government servant destined to remain under suspension indefinitely ? These are the moot questions that will have to be answered by the Court in the present proceeding. The answer to the above questions cannot be found in any straight jacket formula. Much will depend on the facts and circumstances of the each case, namely, the period for which the Government Servant has remained under suspension; the years of service left to his credit; the gravity of the charges and the possibility of either the departmental proceeding or the criminal case being concluded at an early date. In the present case, the petitioner has remained under suspension for nearly 8 years. The departmental proceeding against him has been pending for nearly a decade and it has been admitted by the authority in the affidavit filed that there are no reasonable chances of the departmental proceeding being brought to an early conclusion. The stage of the Criminal Case has not been revealed by the Respondents though the Court has been told by the learned Counsel for the petitioner that the criminal case is yet to reach a matured stage. The petitioner has to his credit about 2 years of service left. The petitioner is also not responsible, in any manner, for the pendency of the departmental proceeding or the criminal case against him. In such a situation, this Court, in order to strike the right balance between the conflicting interests which is the essence of the judicial process and having regard to the totality of the facts of the case, must take the view that the suspension of the petitioner though initially legal and valid, by efflux of time, has become oppressive, arbitrary and unreasonable. The action-of the State in revoking the suspension orders in cases of other similarly situated persons would again be a relevant factor for this Court to reach the above conclusion. I am, therefore, of the considered view that the suspension of the petitioner should not be allowed to continue any more and this Court should interfere with the impugned order dated 9.5.1997. Accordingly, the order of suspension is set aside and quashed. The petitioner is directed to be reinstated in service by the authority forthwith and in any event within a period of 30 days from the date of receipt of a certified copy of this order. Writ petition stands allowed as indicated above. Accordingly, the order of suspension is set aside and quashed. The petitioner is directed to be reinstated in service by the authority forthwith and in any event within a period of 30 days from the date of receipt of a certified copy of this order. Writ petition stands allowed as indicated above. Petition allowed