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2018 DIGILAW 721 (GAU)

ABDUL KADER JILANI v. STATE OF ASSAM

2018-05-02

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT & ORDER : 1. Heard Mr. M.U. Mandal, learned counsel for the petitioner and Mr. N. Sarma, learned Standing Counsel for the Elementary Education Department. 2. The petitioner, who was serving as the Headmaster of 1960 Number Uttar bahir Suwapata LP School under the Block Elementary Education Officer, Bilasipara, was placed under suspension by the order dated 04.12.2013. In the order of suspension, three reasons were stated as to why the petitioner was placed under suspension. The first reason was that he was absent from duty as the Headmaster of the school for a long period, secondly the petitioner did not provide the mid-day-meal to the students for a long period and further, there was also certain lapses in the construction of an additional class room of the school. 3. Apparently, the three reasons are not very specific so as to infer as to what actually the petitioner had done. Without going into the aspect on the justifiability of the order of suspension, it has also been brought to the notice of the Court that since 04.12.2013, the petitioner has been in continuous suspension i.e. for a period of almost 4 years till date. Repeated opportunities were given to the learned Standing Counsel for the respondents to produce if any memorandum of charge/charge sheet was issued against the petitioner. The said information were sought for by various orders dated 16.02.2018, 12.03.2018, 28.03.2018, 06.04.2018 and 25.04.2018, but prior to today, no such information was provided. 4. Mr. N. Sarmna, learned Standing Counsel for the Education Department has stated that after the aforesaid orders enquiring about the issuance of memorandum of charge were passed, the authorities by an order dated 18.04.2018 had served the memorandum of charge to the petitioner. 5. The very information that the memorandum of charge was issued on 18.04.2018 goes to show that as on 16.02.2018, 12.03.2018, 28.03.2018 and 06.04.2018 when the said information was being sought for, no such memorandum of charge was served on the petitioner. The law in this respect has been settled by the Supreme Court in Ajay Kumar Choudhary vs- Union of India, reported in (2015) 7 SCC 291 , wherein in paragraph 21, it has been held as follows:- "21. The law in this respect has been settled by the Supreme Court in Ajay Kumar Choudhary vs- Union of India, reported in (2015) 7 SCC 291 , wherein in paragraph 21, it has been held as follows:- "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. 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." 6. From a reading of the said paragraph, it is seen that in the event the memorandum of charge/charge sheet is not served within a period of three months, the suspension order is no longer sustainable. Further, even if such memorandum of charge/charge sheet has been served, still a periodical review is required to be made in order to further sustain the order of suspension. 7. Further, even if such memorandum of charge/charge sheet has been served, still a periodical review is required to be made in order to further sustain the order of suspension. 7. From the said point of view, at least on the initial dates when the information was sought for, no such memorandum of charge was served on the petitioner and secondly, even though the memorandum of charge/charge sheet was submitted on 18.04.2018, but no material has been produced that a periodical review had been undertaken to justify further continuation of the suspension order. 8. In view of the above, by applying the law laid down by the Supreme Court in Ajay Kumar Choudhary (supra), the order of suspension dated 04.12.2013 is hereby set aside. But, however, it is clarified that setting aside the order of suspension shall not preclude the respondent authorities from proceeding against the petitioner by following the due procedure of law. In terms of the above, the writ petition stands disposed of.