Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 645 (GAU)

Phatik Sonowal v. State Of Assam

2020-08-27

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT Achintya Malla Bujor Barua, J. - Heard Mr. P.P. Dutta, learned counsel for the petitioner. Also heard Ms. N. Phukan, learned standing counsel for the Elementary Education Department. 2. The petitioner who is a head teacher in No. 128 Borpather Jr. Basic School was placed under suspension by the order dated 10.06.2019 of the Deputy Inspector of Schools Dibrugarh for the reason that he was arrested by the police on the allegation of being involved in some illicit activity with some girl student of the school. 3. It is an admitted position that on being arrested by the police, the petitioner was in detention for a period of more than 48 hours. Although in the order of suspension dated 10.06.2019, it is stated that the suspension is as per Rule 6(a) of the Assam Disciplinary and Appeal Rules, 1964 (in short Rules of 1964), but we take note of that there is no such provisions as Rule 6(a) of the Rules of 1964. The Rules of 1964 provide for Rule 6(1)(a) where the Appointing Authority or any other competent authority may place a government servant under suspension where a departmental proceeding is being contemplated or is pending against such employee and for Rule 6(2) where a government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 (forty-eight) hours shall be deemed to have been suspended with effect from the date of such detention and, which is to be formalized by an order of the Appointing Authority and shall remain under suspension until further orders. 4. As the reason for placing the petitioner under suspension is that he was arrested by the police on a criminal charge and was in detention for a period of over 48 hours, we have to understand the order of suspension dated 10.06.2019 to be an order under Rule 6(2) of Rules of 1964. 5. Mr. P.P. Dutta, learned counsel for the petitioner raises a contention that as required in the pronouncement of the Supreme Court in paragraph 21 of Ajay Choudhury vs. Union of India & anr., (2015) 7 SCC 291 , the order of suspension is liable to be interfered as no memorandum of charge had been submitted to the petitioner within the required period of 3(three) months. 6. 6. The said proposition of law laid down by the Supreme Court in paragraph 21 of Ajay Choudhury (supra) would definitely be applicable when a government employee is suspended pending departmental proceeding, but in the instant case, as we have already taken note of that the petitioner was deemed to have been suspended by operation of law under Rule 6(2) of Rules of 1964 and the order dated 10.06.2019 is merely a formalized order as required under Rule 6(2). A relevant aspect to be taken note of is that in the order dated 10.06.2019, it is not provided that the petitioner was suspended pending drawal of a departmental proceeding and the specific reason stated in the order as to why he was placed under suspension is that he was arrested by the police due to involvement of certain activities with some girl student of the school. 7. The proviso to Rule 6(2) of Rules, 1964 provides that where the detention is made on account of any charge not connected with his position as a government servant or continuance in office is not likely to embarrass the government or the government servant in the discharge of his duties or in the charge does not involve in any act of moral turpitude, the appointing authority may vacate the order of suspension made or deemed to have been made when he had in the meantime released on bail. 8. Admittedly, the present writ petitioner was arrested on 01.06.2019 and he was released from detention on 02.07.2019 and the petitioner upon being released from detention, a legal right has accrued to him for a consideration by the Appointing Authority under the proviso of the Rule 6(2) of the Rules of 1964 as to whether the order of suspension is required to be vacated. 9. Accordingly, it is provided that the petitioner shall submit a representation before the Deputy Inspector of Schools Dibrugarh, who is the Appointing Authority of the petitioner, raising a contention that the detention of the petitioner was not on account of any charge not connected with his position as a government servant or his continuance in his office is not likely to embarrass the government or the petitioner in the discharge of his duties or in the charge was not involved in any act of moral turpitude. 10. 10. Upon such representation being submitted, the Deputy Inspector of Schools, Dibrugarh shall give a hearing to the petitioner and pass a reasoned order within a period of 15(fifteen) days of submitting such representation. It is stated that presently the District Elementary Officer, Dibrugarh is also discharging the functions of a Deputy Inspector of Schools. If it is so, the requirement of this order to be done by the Deputy Inspector of Schools, Dibrugarh now be done by the District Elementary Education Officer, Dibrugarh. wxyz The writ petition stands disposed of in the above terms. zyxw