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2025 DIGILAW 624 (GAU)

Pradip Kalita S/o Dharo Kalita v. State of Assam

2025-04-09

SUMAN SHYAM

body2025
JUDGMENT & ORDER : SUMAN SHYAM, J. Heard Mr. J. Patowary, learned counsel appearing for the writ petitioner. Also heard Mr. S. Dutta, learned Standing Counsel, Revenue & Disaster Management Department, Assam appearing for the respondent Nos.1 and 2 and Mr. A. Chakraborty, learned Govt. Advocate, Assam appearing for the respondent Nos.3 and 4. 2. The challenge in this writ petition is to the order of suspension dated 27.01.2024 issued by the respondent No.3 whereby, the writ petitioner was placed under suspension. The impugned order has been assailed primarily on the ground that due to failure on the part of the authorities to review of the order within the period of 90 days from the issuance of the same, the order of suspension has already lapsed by operation of law. As such, the impugned order dated 21.01.2024, as extended from time to time, is liable to be set aside by this court and the petitioner is liable to be reinstated in service forthwith. The facts and circumstances of the case, leading to the filing of this writ petition, narrated in brief, are as hereunder. 3. The writ petitioner was initially appointed as a Lot Mondal on 23.02.2006. Thereafter, he was promoted to the post of Supervisory Kanungo. While serving as Supervisory Kanungo in the office of the Circle Officer, Chamaria Revenue Circle, Boko, the petitioner was arrested on 05.01.2024 in connection with ACB P.S. Case No.05/2024 registered under Section 7(a) of the Prevention of Corruption Act, 1988 on the allegation of accepting bribe of Rs 3,000/- and he was detained in police custody for a period exceeding 48 hours. In view of his arrest and detention in police custody exceeding the period of 48 hours, the District Commissioner, Kamrup (R) i.e. the respondent No.3, by invoking powers under Section 6(2) of the Assam Services (Discipline & Appeal) Rules, 1964 (herein after referred to as the Rules of 1964), had placed the petitioner under suspension by issuing the order dated 27.01.2024 with effect from the date of his arrest i.e. 05.01.2024. The writ petitioner was released on bail on 07.02.2024. According to the petitioner, the fact regarding his release on bail was duly intimated to the authority i.e. the respondent No.2 herein. The writ petitioner was released on bail on 07.02.2024. According to the petitioner, the fact regarding his release on bail was duly intimated to the authority i.e. the respondent No.2 herein. Notwithstanding the same, a show cause notice dated 03.04.2024 was served upon the petitioner on 04.04.2024, accompanied by list of documents, list of witnesses and statement of allegations, thus initiating a disciplinary proceeding against the writ petitioner by framing as many as four different charges against him. The charges brought against the writ petitioner include the charge of acceptance of bribe of Rs 3000/- and recovery of un-accounted cash from the residence of the petitioner to the tune of more than Rs 7,36,000/-. 4. On 08.04.2024 the order of suspension dated 27.01.2024 was apparently reviewed and the same was extended for a further period of three months with effect from 05.04.2024. The reason for extension of the period of suspension, as mentioned in the order, was in the interest of smooth conduct of the enquiry and keeping in mind the gravity of the charge as well as the likelihood of the petitioner vitiating the working environment if he is reinstated. On 12.04.2024, the petitioner submitted his show cause reply. Thereafter, by order dated 06.05.2024, Enquiry Officer and Presenting Officer were appointed by the Disciplinary Authority i.e. the Director of Land Records and Survey, Assam (respondent No.2 herein) for conducting enquiry into the charges brought against the petitioner. While the enquiry proceeding was under progress, by order dated 11.07.2024 the period of suspension of the petitioner was extended for a further period of three months with effect from 05.07.2024 on the same grounds as mentioned in the order dated 08.04.2024. Thereafter, on 04.11.2024, the respondent No.2 had once again extended the order of suspension of the petitioner for the 3 rd time, for a further period of three months with effect from 05.10.2024 on the same ground. Eventually, by order dated 11.01.2025 the suspension of the petitioner was extended with effect from 05.10.2025 until further orders. From the order dated 11.01.2025 it appears that the extension of suspension of the petitioner on that occasion was not for the period of three months but until further orders. However, what is to be noted herein is that the suspension of the petitioner was extended on each occasion on the same ground, as noted above. 5. According to Mr. From the order dated 11.01.2025 it appears that the extension of suspension of the petitioner on that occasion was not for the period of three months but until further orders. However, what is to be noted herein is that the suspension of the petitioner was extended on each occasion on the same ground, as noted above. 5. According to Mr. Patowary, learned counsel for the petitioner, an order of suspension is not punishment by itself and therefore, by referring to Clause 2.1.4 of Rule 6(1) and of the Manual of Departmental Proceeding, the learned counsel for the petitioner has argued that the suspension order is liable to be set aside on such ground alone. Mr. Patowary has also argued that there was failure on the part of the respondents to review and extend the suspension order within the prescribed period of time, thus having a vitiating effect on the order itself. In support of his above argument, Mr. Patowary has relied upon the decision of the Supreme Court in the case of Kalyan Dombivali Municipal Corporation Vs. Sanjay Gajanan and others reported in AIR 2022 SC 1618 , the decision of the Division Bench of this Court rendered in the case of State of Nagaland & others Vs. Chubanungsang Imchen & another reported in 2019 (5) GLT 444 as well as the decision of the learned Single Judge of this Court rendered in the case of Bhumidhar Das Vs. State of Assam & others [2017(3) GLT 27] to contend that since the enquiry proceeding has already been concluded and the enquiry report has been submitted, there can be no justifiable ground for the authorities to continue with the order of suspension of the petitioner any further, at this stage. 6. The respondent No.2 has contested the case of the petitioner by filing counter- affidavit. In paragraph 13 of the counter-affidavit it has been categorically stated that the departmental enquiry initiated against the petitioner has already been completed and the enquiry report has been submitted on 29.10.2024. The matter is now pending before the respondent No.1 for necessary concurrence so as to take appropriate action in the matter. 7. Mr. S. Dutta, learned counsel appearing for the Revenue Department submits that not to speak of the writ petitioner, even the department has nothing to gain by prolonging the order of suspension of the writ petitioner. The matter is now pending before the respondent No.1 for necessary concurrence so as to take appropriate action in the matter. 7. Mr. S. Dutta, learned counsel appearing for the Revenue Department submits that not to speak of the writ petitioner, even the department has nothing to gain by prolonging the order of suspension of the writ petitioner. However, in view of the standing Government Circular dated 27.05.2024, further action in the matter can be taken only with the approval of the Chief Minister of Assam, which process is yet to be completed. Hence, the delay. Assuring this Court that an order from the Disciplinary Authority bringing the departmental proceeding to its logical end will be issued as soon as the necessary approval is received, the learned departmental counsel has submitted that considering the nature of allegation brought against the petitioner, reinstating him at this stage would cause embarrassment for the department. As such, he submits that no interference with the order of suspension is called for in this case. 8. I have considered the submissions made at the Bar and have also gone through the materials available on record. 9. The basic facts of the case are not in dispute. It is not disputed that the writ petitioner was arrested on 05.01.2024 in connection with ACB P.S. Case No.05/2024 on being allegedly caught red handed while accepting bribe and he was detained in police custody exceeding a period of 48 hours. As per Rule 6(2) of the Rules of 1964, suspension of an employee is warranted in case of detention in police custody exceeding a period of 48 hours in connection with any criminal proceeding. Therefore, the order of suspension dated 27.01.2024 was apparently issued as per Ruled 6(2) of the Rules of 1964. 10. The departmental proceeding initiated against the petitioner under Rule 9 of the Rules of 1964 was based on a charge memo dated 03.04.2024 served upon him which contained definite charges. The list of documents and list of witnesses along with the statement of allegations were also made available to the petitioner. At this stage no issues has been raised before this court as regards the validity of the enquiry proceeding. As such, this court need not go into that aspect of the matter. The list of documents and list of witnesses along with the statement of allegations were also made available to the petitioner. At this stage no issues has been raised before this court as regards the validity of the enquiry proceeding. As such, this court need not go into that aspect of the matter. The only issue that has been raised by the writ petitioner in this writ petition is pertaining to the legitimacy of continuance of his suspension even after submission of the Enquiry Report. The petitioner’s counsel has urged that his client has been under suspension for nearly 1 year 9 months as on date and considering the ground on which the suspension was extended, there is no justifiable ground for the authorities to continue with his suspension at this point of time since the enquiry proceeding has admittedly been completed. 11. It is no doubt correct that suspension of an employee cannot take the place of punishment nor can an employee be kept under suspension for indefinite period without proper justification. The said position is apparent even from clause 2.1.4 of Rule 6(1) of Chapter –II of the Manual of Departmental Proceedings of the Government of Assam. Clause 2.1.4 is reproduced here-in-below for ready reference:- “2.1.4. Although suspension is not a punishment by itself, it cannot be denied at the same time that in such cases the officers placed under suspension suffer a lot. Apart from this, suspension of a Government Servant is a liability on the part of the Government. The idea behind placing an officer under suspension is not to inflict punishment, which can be done only when the charges are proved, but to safeguard against further loss to Government, manipulation of records, intimidation of witnesses or embarrassment to Government in the public eye, as in the case, where moral turpitude is involved. In all cases of suspension the elementary justice demands that the period of suspension should be reduced to the barest minimum. It is, therefore, necessary to conclude proceedings drawn up as quickly as possible and in any case if it is not possible to do so due to reasons beyond control, the persons proceeded against may be allowed to resume their duties, where possible in places away from their former place of duty, vacating the suspension order so as to save Government expenditure in the event of his acquittal.” 12. Taking note of Clause 2.1.4 of the Manual of Departmental Proceeding, a co- ordinate Bench of this court had interfered with an order of suspension under challenge in the case of Bhumidhar Das (supra), relied upon by Mr. Patowary. In that case, the order, by mean of which, the petitioner there-in was placed under suspension for more than two years was set aside on the ground that the departmental proceedings initiated against him was yet to be concluded and a direction was issued to reinstate him in service. 13. In the case of Chubanungsang Imchen & another (supra), relied upon by Mr. Patowary, the decision was rendered in the context of suspension of an employee of the Government of Nagaland, whose service conditions were governed by the Nagaland Services (Discipline and Appeal) Rules, 1967 and not the Rules of 1964. Moreover, it appears that in that case no disciplinary proceeding was either pending or contemplated against the Government servant. Taking note of such facts, it was held by the Division Bench that the suspension order passed under Rule 6 (1)(a) of the Rules of 1967 was without the authority of law. Therefore, the ratio laid down in the said decision relied upon by Mr. Patowary, may not be strictly applicable to the facts of this case. 14. Be that as it may, in the case of Ajay Kumar Choudhury Vs Union of India through its Secretary and another reported in (2015) 7 SCC 291 the Hon’ble Supreme Court has laid emphasis on the fact that an order of suspension should not be extended beyond three months, if within that period, Memorandum of Charge/Charge Sheet is not served upon the delinquent/ employee. Even when the Memorandum of Charge is served, a reasoned order should be passed for the extension of the suspension, thus imposing a limit on the period of suspension. 15. Following the decision of the Supreme Court in the case of Union of India Vs Dipak Kumar Mali reported in (2010) 2 SCC 222 as well as in the case of Ajay Kumar Choudhury (supra), a Division Bench of this court has held in the case of State of Assam and Anr Vs Ajit Sonowal and Ors reported in 2023 (6) GLT 115 that an order of suspension issued under Rule 6(2), unless reviewed within 90 days or extended with reasons, would not survive in the eyes of law. The observations made in paragraph 13 of the decision would be relevant for this case and therefore, the same is being reproduced here-in-below for ready reference :- “13. From careful analysis of the above decisions of the Supreme Court what follows is that unless review is held within 90 days, an order of suspension including one issued due to the detention of an employee in custody for 48 hours, would not survive nor can such an order be granted fresh lease of life by carrying out a review after expiry of the period of 90 days. In view of the law laid down in the case of Dipak Mali (supra) and Ajay Kumar Choudhary (Supra) it is axiomatic that the order of suspension dated 07.12.2019 had lapsed after the expiry of 90 days due to want of review of the same by the Disciplinary Authority. We, therefore, find ourselves in agreement with the findings recorded by the learned Single Judge in the impugned Judgment and order dated 22.04.2021 16. From a careful analysis of the ratio of law laid down in Ajay Kumar Choudhury (supra) as well as Ajit Sonowal (supra) it is crystal clear that unless an order of suspension is reviewed with 90 days and extended by furnishing proper reasons, the same would lapse by operation of law and the same cannot be given a fresh lease of life by carrying out a review after the expiry of 90 days period. 17. Coming to the facts of the present case, it is apparent from the materials on record that on each occasion upto the fourth review, the review of the suspension order dated 27.01.2024 was carried out after the period of 90 days had expired. Although the successive orders of extension of suspension were given retrospective effect from a date falling within 90 days, yet, such orders were admittedly and evidently issued after the expiry of 90 days. On each occasion, there was delay in issuing the orders notifying the extension of suspension of the petitioner which further goes to indicate that the review itself was carried out beyond the period of 90 days. The learned departmental counsel has failed to displace such assumption of the Court by providing any cogent materials. If that be so, it is clear that the suspension order of the petitioner had lapsed by operation of law. The learned departmental counsel has failed to displace such assumption of the Court by providing any cogent materials. If that be so, it is clear that the suspension order of the petitioner had lapsed by operation of law. The same is accordingly declared so by this Court. 18. As noted above, the enquiry proceeding in this case has already been concluded and the Enquiry Officer has also submitted his report nearly six months back. The matter is now pending before the competent authority for taking appropriate decision in the matter in accordance with law. Therefore, it is not understood as to why there should be further delay in concluding the disciplinary proceeding. Ordinarily, that would have been sufficient cause for this Court to order immediate reinstatement of the writ petitioner. However, this Court is also conscious of the fact that there are allegations of serious misconduct involving moral turpitude against the writ petitioner and the enquiry report with regard to the charges brought against him has already been submitted. Under such circumstances the submission of the learned departmental counsel made to the effect that reinstating the petitioner before a final decision is taken by the Disciplinary authority on the Enquiry Report may cause embarrassment to the department cannot be completely brushed aside by this court by adopting a hyper technical approach in the matter. At the same time, this Court cannot also permit the authorities to indefinitely prolong the culmination of the departmental proceeding by keeping the petitioner under suspension on the ground that the enquiry report is under consideration by the competent authority and necessary approval for taking action in the matter is still awaited. 19. Law is well settled that an order of suspension cannot be extended without proper justification. What would be proper justification for extension of the order of suspension would depend on the facts and circumstances of each case. 20. In the case of Kalyan Dombivali Municipal Corporation (supra) the Hon’ble Supreme Court, while deprecating the practice of prolonged suspension, has declined to pass an order of reinstatement by taking note of the peculiar facts and circumstances of the case. Instead, the authorities were directed to complete the departmental proceeding within a stipulated period of time. The observations made in paragraph 53 are relevant for the purpose of this case and therefore, are reproduced herein below :- “53. Instead, the authorities were directed to complete the departmental proceeding within a stipulated period of time. The observations made in paragraph 53 are relevant for the purpose of this case and therefore, are reproduced herein below :- “53. We find that in the present case, it is the respondent No.1 who, though called upon to participate in the departmental proceedings, has on his own, chosen not to participate therein. It is the respondent No.1, who had objected to the initiation of the departmental proceedings by the Commissioner on the ground of jurisdiction and refused to participate in the departmental proceedings. We therefore find that the respondent No.1 cannot be permitted to take benefit of his own wrong. In any case, we find that the issue of prolonged suspension would be taken care of by directing the departmental proceedings to be completed within a stipulated period but the suspension of respondent No.1 would continue till then.” 21. Having regard to the peculiar facts and circumstances of this case and by balancing the equities, this writ petition is being disposed of by granting 3 (three) weeks time to the respondents, with effect from today, to pass a final order in the departmental proceeding initiated against the petitioner, bringing the same to its logical end. In the event of failure on the part of the respondents to pass a final order in the disciplinary proceeding within three weeks from today, the writ petitioner shall be forthwith reinstated in service. The order of this court shall, however, not come in the way of the disciplinary authority in passing appropriate order in the disciplinary proceeding, in accordance with law, at any stage. With the above observation, the writ petition stands disposed of.