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2021 DIGILAW 704 (GAU)

Tamiyo Tatak v. State of A. P.

2021-11-17

ROBIN PHUKAN

body2021
JUDGMENT : Robin Phukan, J. 1. In this Writ Petition, under Article 226 of the Constitution of India, the petitioner Shri Tamiyo Tatak, put to challenge the Order No. PERS-15/93/39, dated 19.07.2021, issued by the Chief Secretary, Government of Arunachal Pradesh, Itanagar and signed by Secretary (personnel) to the Govt. of Arunachal Pradesh, under Sub-Rule (6) of Rule-10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. It is to be mentioned here that, vide impugned order, the Chief Secretary, Government of Arunachal Pradesh has extended the period of suspension of the petitioner for a further period of 90 days w.e.f. 20.07.2021 to 17.10.2021, in exercise of powers conferred under the Rule--10(6) of the CCS (Classification, Control and Appeal) Rules, 1965. It is also to be mentioned here that, the petitioner was also deemed to be suspended with effect from the date of detention, i.e. 21.04.2021, in terms of Sub-rule (2) (a) of Rule -10 of the Central Civil Services (Classification, Control and appeal) Rules, 1965, vide order dated 30.04.2021, Memo No. PERS-15/93/689 issued by the Chief Secretary, Government of Arunachal Pradesh and signed by Secretary (personnel) to the Govt. of Arunachal Pradesh. 2. The factual background leading to filing of the present writ petition is briefly stated as under :- "The petitioner was arrested in connection with SIC(VIG), P.S. Case No. 03/2021, under sections 120(B)/409/468/471 of the IPC, read with section 13(1)(c) (d) & 13(2) of the Prevention of Corruption Act, 1988. Thereafter, the Chief Secretary, Government of Arunachal Pradesh, Itanagar issued an order dated 30.04.2021, which was signed by the Secretary (Personnel), Government of Arunachal Pradesh on 05.05.2021, by which the petitioner was deemed to have been suspended with effect from the date of the detention i.e., 21.04.2021, in terms of Sub-rule (2) of Rule -10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, and shall remained under suspension on and until further order. Thereafter, the petitioner was expecting that the departmental proceedings will be initiated against him and memorandum of charges would be served upon him within a period of 90 days in terms of the ratio laid down by the Hon'ble Supreme Court in Ajay Kumar Choudhary Vs. Union of India reported in 2015 (7) SCC 291 . Thereafter, the petitioner was expecting that the departmental proceedings will be initiated against him and memorandum of charges would be served upon him within a period of 90 days in terms of the ratio laid down by the Hon'ble Supreme Court in Ajay Kumar Choudhary Vs. Union of India reported in 2015 (7) SCC 291 . But, the respondent authority, instead of serving any memorandum of charges to the petitioner, extended his suspension period, vide order No. PERS-15/93/39, issued on 19.07.2021, by the Chief Secretary, Govt. of Arunachal Pradesh, Itanagar, and it was signed by the Secretary (Personal) to the Govt. of Arunachal Pradesh, Itanagar on 19.07.2021, and by the said order, suspension period of petitioner was extended for a further, period of 90 days, w.e.f. 20.07.2021 to 17.10.2021, in exercise of powers conferred under the Rule-10(6) of the CCS (Classification, Control and Appeal) Rules, 1965. The contentions of the petitioner is that, in view of the ratio laid down by the Hon'ble Supreme Court in Ajay Kumar Choudhary Verses Union of India (Supra) the currency of suspension order could not have been extended beyond 3(three) months, and in the event of failing to serve the memorandum of charges to the delinquent Officer within this period, then a reasoned order must be passed for the extension of suspension, but in the case in hand the respondent authorities in the impugned order dated 19.07.2021, did not assign such reasons and the same is against the law laid down by the Hon'ble Supreme Court. 3. Heard Mr. D. Panging, learned counsel for the petitioner and also heard Mr. S. Tapin, learned Senior Government Advocate for the respondent. 4. Mr. Panging, learned counsel for the petitioner, submits that the petitioner was place under suspension, vide order dated 30.04.2021, but the respondent authority has failed to serve the memorandum of charges to the petitioner within the period of 90(ninety) days, and extended the same vide order dated 19.07.2021, for another period of 90 days, and also from 20.07.2021, to 17.10.2021. It is further submitted that after 17.10.2021, also the respondent authority failed to serve memorandum of articles of charges to the petitioner and again extended the same and such action of the respondent authority, according to Mr. It is further submitted that after 17.10.2021, also the respondent authority failed to serve memorandum of articles of charges to the petitioner and again extended the same and such action of the respondent authority, according to Mr. Panging, violates the principle of natural justice and administrative fair play, and also it violates the provisions of Rule--10(6) of the CCS (Classification, Control and Appeal) Rules, 1965, and law laid down by Hon'ble Supreme Court in Ajay Kumar Choudhary Vs. Union of India (Supra). Mr. Panging, learned counsel for the petitioner, therefore, contended to set aside the impugned order No. PERS-15/93/39, dated 19.07.2021. 5. Per contra, Mr. S. Tapin, learned Senior Govt. Advocate, appearing for the respondent authorities, submits that the memorandum of charges have not yet been served to the petitioner. It is to be mentioned here that on 10.11.2021, while the matter came up for hearing then the learned counsel for the respondent was asked to obtain instruction from the Government of Arunachal Pradesh, as to whether memorandum charges have been furnished to the petitioner or not and pursuant to the said direction Mr. Tapin, learned Senior Govt. Advocate verbally apprised this Court that, the memorandum of charges have not yet been furnish to the petitioner and the period of suspension is further extended from 17.10.2021. 6. Having heard the submission of learned Advocates of both the side, I have gone through the petition and the document place on record carefully. It appears that the on the basis of one Preliminary Enquiry Report, submitted by Inspector S. Roy, Enquiry Officer, SIC(VIG.), P.S., Civil Secretariat Itanagar, the OC, SIC(Vig.), Police Station, Itanagar has registered SIC (Vig.) P.S. Case No. 03/2021, under section 120(B)/409/468/471 IPC, read with section 13(1) (c) (d) and 13(2) of the Prevention of Corruption Act, 1988. It also appears that the Preliminary Enquiry Report relates to irregularities committed in the process of fixation of land acquisition and disbursement of compensation to the land owners, in connection with Railway Project, Phase-I & II, from Ruksin to Pasighat, East Siang District, Arunachal Pradesh. It also appears that the petitioner was serving as Deputy Commissioner at East Siang District, Pasighat at the relevant time of occurrence. He was arrested in connection with the said case on 21.04.2021. And pursuant to his arrest on 21.04.2021, the Chief Secretary, Govt. It also appears that the petitioner was serving as Deputy Commissioner at East Siang District, Pasighat at the relevant time of occurrence. He was arrested in connection with the said case on 21.04.2021. And pursuant to his arrest on 21.04.2021, the Chief Secretary, Govt. of Arunachal Pradesh, vide order dated 30.04.2021 suspended him w.e.f. from 21.04.2021, for a period of 90 days. In terms of Rule--10 (6) of the CCS (Classification, Control and Appeal) Rules, 1965, within a period of 90 days memorandum of charges has to be served upon the petitioner. But, the respondent authorities failed to cause the service of memorandum of charges to the petitioner within the period of 90 days. Thereafter, vide order dated 19.07.2021, the Chief Secretary, Govt. of Arunachal Pradesh, again extended the date of suspension for another period of 90 days from 20.07.2021 to 17.10.2021, in exercise of power conferred under Rule--10 (6) of the CCS (Classification, Control and Appeal) Rules, 1965. 7. And Mr. Tapin, the learned Senior Govt. Advocate confirmed that within the period of 17.10.2021, the respondent authorities failed to cause service of memorandum of charges to the petitioner, and extended it for further period. Thus, the respondent authorities have failed to serve memorandum of charges to the petitioner even after 180 days. The law relating to the period of services of memorandum of charges to the delinquent Officer is well settled by the Hon'ble Supreme Court in Ajay Kumar Choudhary Vs. Union of India (Supra). 8. In Paragraph 21 of Ajay Kumar Choudhary v. Union of India (Supra), the Hon'ble Supreme Court has held that :- "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 person concerned 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. 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 recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quashed 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." 9. In view of the above ratio of the Hon'ble Supreme Court, the contention of the petitioner appears to be justified. While, failing to submit the charge-sheet within the period of 90 days, the respondent authorities have extended the suspension period beyond period of 90 days. Thereafter, again the respondent authority has extended the same for another period, without furnishing memorandum of charge to the petitioner in most mechanical manner. Thus, the impugned order, passed by the respondent authorities, by which it has extended the period of suspension beyond 90 days in a mechanical manner, to the considered opinion of this Court is illegal and violative article 14 and 16 of the constitution of India. It fails to withstand the test of propriety and it is also against the CCS (Classification, Control and Appeal) Rules, 1965, and the law laid down by the Hon'ble Supreme Court. 10. In Union of India vs. Tulsiram Patel : (1985) 3 SCC 398 , Hon'ble Supreme Court, in paragraph No. 95 and 96, beautifully concertized law on the subject, which for facility of reference are reproduced hereunder :- "The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs thus violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of state action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body men, not coming within the definition of "State" in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially. 11. Drawing premises from the illuminating discourse, it can safely be concluded that the impugned order No. PERS-15/93/39, dated 19.07.2021, issued by the Chief Secretary, Government of Arunachal Pradesh, Itanagar and signed by Secretary (personnel) to the Govt. of Arunachal Pradesh, violates the rule of natural justice, which results in arbitrariness, which is the same as discrimination. As held in Union of India vs. Tulsiram Patel (supra) where discrimination is the result of state action, it is a violation of Article 14: therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. 12. In view of above, the impugned order, No. PERS-15/93/39, dated 19.07.2021, stands set aside and quashed. The respondent authorities are directed, by a mandamus of this Court, to revoke the suspension order of the petitioner with immediate effect and to reinstate him in the post, which he was holding at the time of his suspension. 13. It is clarified that, on such reinstatement, he will be entitled to get all the service benefit as per entitlement. With the above observation this instant Writ Petition stands disposed of.