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2017 DIGILAW 1485 (GAU)

Birendranath Sarma v. State of Assam

2017-11-30

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. U.K. Nair, learned senior counsel for the petitioners. Also heard Mr. T.C. Chutia, learned Addl. Senior Govt. Advocate appearing for the State respondents. As the Court intended to deal into the question as to why the required follow up actions are not being taken after an order of suspension is issued, this Court had also requested the services of Mr. D. Saikia, learned Senior Advocate for the State of Assam for his views. 2. Apart from the aspect that individual persons have approached this Court by filing separate writ petitions against separate suspension orders, but all such suspension orders are required to be dealt with on the basis of a common question of law, which itself may be sufficient to adjudicate upon the writ petition without going into the individual merits and demerits of the suspension orders and therefore, this Court deems it appropriate that all the five writ petitions be taken up together and be given its consideration by a common order. 3. The petitioner in WP(C) No. 6465/2017 is holding the post of District Agriculture Officer, Jorhat and is aggrieved by the order dated 14.03.2017 by which, he had been placed under suspension. The order of suspension provides that the petitioner was arrested by the CID on 24.02.2017 in connection with CID PS. Case No. 56/2014 under Section 120(B)/420/406/409 of the IPC read with Section 13(10)(c)(2) of the Prevention of Corruption Act and he had been detained in custody beyond 48 hours. Accordingly, the Governor of Assam in exercise of power under Sub-Rule 2 Rule 6 of the Assam Service (Discipline and Appeal) Rules, 1964 had placed the petitioner under suspension w.e.f. from the date of his arrest. 4. Similarly, the petitioner in WP(C) No. 6468/2017, who was holding the post of Executive Engineer in the Directorate of Agriculture, Assam was also placed under suspension by an order dated 14.03.2017, wherein, the same reason as indicated above had been stated. So also, is the writ petitioner in WP(C) No. 6470/2017, WP(C) No. 6480/2017 and WP(C) No. 6494/2017, the only difference being that the respective petitioners were holding different posts, but all were under the Agriculture Department of the Govt. of Assam and further all of them had been suspended by orders of 14.03.2017 by stating the same reason as indicated above. 5. Mr. of Assam and further all of them had been suspended by orders of 14.03.2017 by stating the same reason as indicated above. 5. Mr. U.K. Nair, learned senior counsel for the petitioner assails the aforesaid suspension orders on the limited ground that as per the law laid down by the Hon'ble Supreme Court in Paragraph-21 of Ajay Kumar Choudhury v. Union of India reported in 2015 7 SCC 291 , wherein, it is provided that the currency of a suspension order should not extend beyond three months, if within the said period, the Memorandum of Charges/Charge-Sheet is not served on the delinquent officer/employee, with further provision that in the event the memorandum of charge/charge-sheet is served, a reasoned order must be passed for extension of the order of suspension. 6. In paragraph-21, it has further been provided that in the event, the order of suspension is interfered for the aforesaid reason, the Govt. would be free to transfer the concerned person to any department in any of its offices within or outside the State, so as to the sever any local or personal contact that the delinquent may have and which he may misuse for obstructing the investigation against him. Paragraph 21 is quoted hereinbelow:- "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 concerned person 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 recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that 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." 7. Mr. T.C. Chutia, learned Addl. Senior Govt. Advocate on the other hand upon verification of the records has stated that although the orders of suspension are dated 14.3.2017, but till date no such Memorandum of Charge/Charge-sheet have been served on the petitioners. 8. In the aforesaid premises as the Memorandum of Charges/Charge-Sheet have not been submitted, the provision of law laid down by the Hon'ble Supreme Court in Paragraph 21 of Ajay Choudhury's case would be applicable in this case. 9. As already alluded, the implication of the pronouncement of the Hon'ble Supreme Court is that in the event, the Memorandum of Charge/Charge-Sheet is not served within a period of three months, the suspension order can no longer sustain. 10. Accordingly, in the instant case also, as it is found from the records that the Memorandum of Charges/Charge-Sheet have not been served upon the petitioners, therefore, this Court is of the considered view that the orders of suspension dated 14.03.2017 passed against the petitioners in the aforementioned writ petitions are no longer sustainable in the eye of law. 11. In such view of the matter, the suspension orders dated 14.03.2017 in respect of the petitioners in WP(C) No. 6465/2017, WP(C) No. 6468/2017, WP(C) No. 6470/2017, WP(C) 6480/2017 and WP(C) No. 6494/2017 are hereby set aside. But having said so, it is also a matter of concern that judicial notice can be taken that various suspension orders passed by the authorities from time to time are required to be interfered by this Court on the sole ground that the Memorandum of Charges/Charge-Sheet are not submitted within a period of three months as required by the pronouncement of the Hon'ble Supreme Court. 12. 12. The order of suspension under the law is permissible when the authorities have materials to proceed against the delinquent employee and for the interest of the investigation and the enquiry, the delinquent officer is placed under suspension, so that such delinquent officer by remaining in his office, does not interfere either with the enquiry or with the process of initiating the departmental proceeding and also does not indulge in tampering with the available materials. 13. It is not understood that if the materials are available with the concerned departmental authority, who passed the order of suspension, as to why such authority cannot submit the Memorandum of Charge/Charge-Sheet within the required period of three months. It can also be taken note of that once of the Memorandum of Charge/Charge-Sheet is submitted, the law also allows the departmental authority to submit any supplementary Memorandum of Charge/Charge-Sheet, if necessary. Therefore, a purported reason that the enquiry is not completed, also cannot be a reason for the departmental authority not to issue the memorandum of charges/charge-sheet within the required period of three months. It is also noticed, as is also in the case at hand, that the charges against the delinquent officer are serious enough, which may not want an interference with the suspension may order on its own merit, but as because the authorities have not undertaken the duty entrusted upon them under the law to issue the Memorandum of Charges/Charge-Sheet within the stipulated period of three months, the Courts have no other option to interfere with such suspension order. Such omission on the part of the disciplinary authority is not only against the public interest, but it also serves the purpose in favour of the delinquent and the same also leads to a situation, where the public at large will lose its faith on the administration. 14. In the aforesaid circumstance, this Court deems it necessary that an order be issued directing the Chief Secretary to the Govt. of Assam to issue a notification indicating the law laid down in Paragraph 21 of Ajay Choudhury's case and also directing the disciplinary authorities in all the departments to strictly comply with the requirement to issue the Memorandum of Charges/Charge-sheet before the expiry of three months from the date of issuance of order of suspension. of Assam to issue a notification indicating the law laid down in Paragraph 21 of Ajay Choudhury's case and also directing the disciplinary authorities in all the departments to strictly comply with the requirement to issue the Memorandum of Charges/Charge-sheet before the expiry of three months from the date of issuance of order of suspension. The notification shall provide that it shall be mandatory for the disciplinary authority to issue the Memorandum of Charges/Charge-Sheet before the expiry of three months from the date of the suspension. The notification shall also provide that in the event, the concerned disciplinary authority fails to issue the Memorandum of Charges/Charge-Sheet before the expiry of three months from the date of issuance of the order of suspension, appropriate disciplinary proceeding shall also be initiated against the concerned disciplinary authority itself. Upon issuance of such notification, it is also directed that the Chief Secretary shall conduct a periodical review every three months of the various suspension orders issued during the previous three months and verify as to whether the aforesaid requirement has been fulfilled by the concerned disciplinary authority or not. Upon such review, if it comes to the notice that a particular disciplinary authority had not followed the above requirement, appropriate action of a disciplinary proceeding be taken against them. In the notification to be issued by the Chief Secretary, it shall also be specifically stated that even after issuance of a Memorandum of Charge/Charge-Sheet, the concerned disciplinary authority shall undertake a review as regards the desirability to further continue with the suspension order and in the event, such exercise of review is not taken, the same procedure as regards the non-issuance of Memorandum of Charge shall also follow. The notification shall accordingly also provide that the periodical review shall be done every six months. The aforesaid review to be undertaken by the Chief Secretary shall be done through the Personnel (B) Department of the Govt. of Assam. Writ petition is accordingly disposed of.