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2022 DIGILAW 23 (GAU)

MRINMOY KUMAR DAWKA v. STATE OF ASSAM

2022-01-06

KALYAN RAI SURANA

body2022
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. U.K. Nair, learned senior counsel, assisted by Mr. D. Choudhury, learned counsel for the petitioner and Ms. M. Bhattacharjee, learned Addl. Senior Government Advocate appearing for all the State respondents. 2. The petitioner, who at the relevant time posted as the Superintendent of Central Jail, Tezpur was arrested on 16.07.2020 in connection with Tezpur P.S. Case No. 841/2020 under Section 354A/409 and 376(C) of the Indian Penal Code. He was placed under suspension vide impugned order dated 18.07.2020 issued by the Joint Secretary to the Government of Assam, Home and Political Department in exercise of power under Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964. Amongst others, on the ground that no charge-sheet was submitted before the trial Court and no charge-sheet in respect of any disciplinary proceeding was served on the petitioner within three months of his suspension, and nor any review of the order of suspension was made within three months from the date of suspension despite submitting representations dated 12.11.2020 and 07.04.2021, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the order of suspension dated 18.07.2020, and his continued suspension. In this regard, reliance has been placed on the case of (i) Ajay Kumar Choudhary vs. Union of India and Another, (2015) 7 SCC 291 and (ii) Rakibuddin Ahmed vs. State of Assam and Others, 2019 (5) GLT 600 (DB). 3. It may be mentioned that although the Court had issued notice of motion returnable within three weeks by order dated 03.05.2021, the State respondents have not filed any affidavit-in-opposition. At the outset the learned Additional Senior Government Advocate has submitted that due to some medical issues, she would be going out of station today and a fervent prayer was made to adjourn the matter for at least two weeks to enable her to file an affidavit-in-opposition. The prayer for adjournment was refused and the matter was heard on merit. While refusing the prayer for adjournment, the Court was fully conscious of the intent and purport of the ratio laid down in the case of Ajay Kumar Choudhary (supra) and Rakibuddin Ahmed (supra). The prayer for adjournment was refused and the matter was heard on merit. While refusing the prayer for adjournment, the Court was fully conscious of the intent and purport of the ratio laid down in the case of Ajay Kumar Choudhary (supra) and Rakibuddin Ahmed (supra). In this regard, it would be appropriate to quote the observation of the Supreme Court of India in Para-12 of the case of Ajay Kumar Choudhary (supra), which reads as follows: “12....Indubitably the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of common law jurisprudence, antedating even the Magna Carta of 1215, which assures that we will sell to no man, we will not deny or defer to any man either justice or right. In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.” 4. As pointed out by the learned senior counsel for the petitioner, it has been observed that in the connected contempt petition, numbered as Cont. Case (C) No. 307/2021, which is analogously listed with this writ petition, the respondent therein, who at the relevant time was holding the post of Principal Secretary to the Government of Assam, Home and Political Department had filed his affidavit-in-opposition on 29.11.2021 and in paragraph 4 thereof, it has been specifically stated as follows: “...Following this, he was placed under suspension vide Government order No. HMB.93/2019/Part/4 dated 18.07.2020. Further the delinquent officer had submitted an application dated 12.11.2020 to vacate the suspension order and release the subsistence allowance.” ...A review Board was constituted in the Home Department, Government of Assam vide No. HMB.93/2019/Part/14 dated 04.02.2021 for review/vacation of suspension order under the Chairmanship of Commissioner Secretary (Home & Political Department as Member Convenor and Inspector General (Prisons) and Sr. Financial Advisor (Home & Political Department) as Members. The Committee in its meeting on 08.04.2021 examined the charges against Shri M.K. Dawka in detail. Financial Advisor (Home & Political Department) as Members. The Committee in its meeting on 08.04.2021 examined the charges against Shri M.K. Dawka in detail. After examining the charges, the Board came to a conclusion that the delinquent official should continue to be under suspension and that the matter would be reviewed again after 3 (three) months. Subsequently the Review Board met again on 12.08.2021 and after thorough deliberation it was decided that the delinquent official should continue to be under suspension and issued a speaking order vide No. HMB.93/2019/Pt/24 dated 10.09.2021 in this regard.” 5. Thus, from the above quoted excerpts from paragraph 4 of the affidavit-in-opposition filed in connection with Cont. Case (C) No. 307/2021 (Mrinmoy Kumar Dawka vs. Niraj Verma and Another), it is an admitted position by the Principal Secretary to the Government of Assam, Home and Political Department that (i) the petitioner was suspended on 18.07.2020; (ii) the petitioner had submitted a representation dated 12.11.2020 to the authorities to withdraw the suspension order; (iii) review meeting held on 12.08.2021 and minutes prepared; (iv) order was passed on 10.09.2021 to extend the suspension. In view of above, as indicated herein before, the prayer for adjournment was refused as because having taken a particular stand on the contempt proceeding, it cannot be perceived that the respondent authorities could now take a contradictory stand in the writ petition. 6. It would now be appropriate to quote paragraph 21 of the case of Ajay Kumar Choudhary (supra), which is as follows: “1. 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. 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.” 7. The learned Additional Senior Government Advocate has submitted that the petitioner was put under suspension for allegedly heinous offence of sexual assault on a jail inmate as such his reinstatement was not in public interest. Moreover, it has been submitted that by now a memorandum of charges of the disciplinary proceeding has been served on the petitioner and that the petitioner has been examined and accordingly, it is submitted that there is every likelihood that the disciplinary proceeding initiated against the petitioner would culminate within an estimated period of one month. In this regard, it may be mentioned that the Division Bench of this Court in the case of Rakibuddin Ahmed (supra) had examined the issue - whether in a case covered by Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, the decision of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary (supra) would have automatic application. The said issue was answered in the affirmative and the order of suspension was quashed. 8. The said issue was answered in the affirmative and the order of suspension was quashed. 8. In view of the discussions above and in light of the ratio laid down in the herein before referred cases of (i) Ajay Kumar Choudhary (supra) and (ii) Rakibuddin Ahmed (supra), as the order of suspension dated 18.07.2020 was not reviewed within three months without serving any memorandum of charges upon the petitioner, and further extended by order dated 10.09.2021, the said action would be contrary to the ratio laid down in the case of Ajay Kumar Choudhary (supra), as such, the Court has no hesitation to pass the following - ORDER: (a) The impugned order of suspension bearing No. HMB.93/2019/Pt/4 dated 18.07.2020 issued by the Commissioner and Secretary to the Government of Assam, Home and Political Department, thereby suspending the petitioner is hereby set aside and quashed prospectively with effect from the date of the order. (b) As a consequence, the petitioner shall forthwith be reinstated in service within a period of 10 days from the date when a certified copy of this order is served in the office of the Head of the Department of Home and Political, Government of Assam. However, upon reinstatement, in terms of the observations made by the Supreme Court of India in the case of Ajay Kumar Choudhary (supra), it would be open to the respondent authorities to post the petitioner in any place and/or keep him attached to any post till the departmental proceeding is concluded. (c) The petitioner would be entitled to his suspension allowance for the period he was under suspension at such rate as is provided/prescribed in law. The subsistence allowance would be correctly calculated as per the entitlement of the petitioner and the payment is directed to be released within an outer period of 31.03.2022 after adjustment of any such allowance that might have been disbursed to the petitioner by now. The Head of the Department of Home and Political, Government of Assam shall issue consequential orders in this regard. 9. The Head of the Department of Home and Political, Government of Assam shall issue consequential orders in this regard. 9. It is left to the wisdom of the Head of the Department of Home and Political, Government of Assam to consider if a copy of this order should be transmitted to the Chief Secretary to the Government of Assam to bring to the notice of the said authority to take a call if the Government should sensitize all Heads of the Departments to take note of the herein before referred decisions in the cases of (i) Ajay Kumar Choudhary (supra) by the Supreme Court of India and (ii) Rakibuddin Ahmed (supra) by the Division Bench of this Court. 10. The writ petition stands allowed to the extent as indicated above. There shall be no order as to cost.