Gauhati High Court
Jinna Abdur Rahim vs State Of Assam And Ors. on 19 October, 2001
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. Heard Mr. A.B. Chowdhury learned counsel for the petitioner and also heard Mr. B. Chowdhury, learned State-counsel for the respondents.
2. By this writ petition the petitioner has challenged his suspension order dated 28.1.1997 by which he was put under suspension pending drawal of departmental proceeding with effect from the date of his arrest in connection with Boko P. S. Case No. 181/96.
3. The case of the petitioner is that he has been working as an Assistant Teacher at No. 1 Dakhin Rangapani L.P. School under Boko Police Station in the district of Kamrup. On 13.12.1996 he was arrested along with some other persons in connection with Boko P.S. Case No. 181/96 registered under Sections 147/325/365/302/201 IPC on the basis of an FIR lodged with the police on 20.10.1996 by one Md. Kaser Ali. Immediately after his arrest the petitioner moved a bail application for his release before the competent Court and he was granted the privilege to go on bail, But surprisingly petitioner was placed under suspension by the impugned order dt. 28.1.1997 with effect from the date of his arrest in connection with the said police case, i.e., 13.12.1996.
4. It is contended on behalf of the petitioner that since the date of suspension, no disciplinary proceeding has been initiated against the petitioner till today. On the other hand on 25.9.1997 the charge sheet in connection with the said Boko P.S. Case No. 181/96 has already been submitted. But the trial has yet to be commenced and it is absolutely uncertain when the same would commence and complete. It is further contended that the petitioner, not being involved in the said criminal offence, has been falsely implicated in this police case and though he is drawing the subsistence allowance for last more than four years since his suspension, the petitioner along with his family members, have been facing severe financial crisis.
5. Considering the nature of controversy involved in this case and as agreed by the learned counsel for the parties I propose to dispose of this writ petition at the motion stage today itself.
6. Having perused the materials available on record and also upon hearing the learned counsel for the parties, it seemingly appears that since the date of suspension the departmental proceeding whatsoever has not been initiated till date. Moreover there is also no certainity when the trial of the said criminal case would start and culminate. It is also seen that though charge sheet has been submitted on 25.9.1997, for last four years there has been no information to the petitioner for the initiation of the trial. There is a complete uncertainty as regards the commencement and. completion of the said criminal trial. Due to such uncertainity the suspension of the petitioner should not be permitted to continue for indefinite period.
7. Suspension not being a punishment, by itself, is only of the kind of an administrative measure. An employer has an absolute right to place its employee under suspension. But the said right, being the discretionary in nature, must not be exercised very lightly and without sufficient justification. The Disciplinary authority should exercise its discretion with utmost care and caution. In the instant case, it transpires that the petitioner has been placed under suspension with effect from his arrest, i.e., 13.12.1996 pending drawal of departmental proceeding, but though he has been paid his subsistence allowance, he has been allowed to continue to remain in suspension without the knowledge and information as to when and how long the criminal case would commence and continue. Further, as stated, charge sheet has also been filed long back on 25.9.1997 but petitioner yet to receive any communication or information as regards the present position of the trial. In view of such fact situation I do not see any justification for putting the petitioner under suspension for any Indefinite period when he has already been under suspension for last more than four and half years. It is also established principle that the departmental proceeding whatsoever drawn against an employee, placed under suspension, should be completed within a reasonable time. There is no gainsaying that an order of suspension, until the disciplinary proceeding is concluded within a reasonable time, affects the employee injuriously. Prolonged suspension without initiation of any departmental enquiry whatsoever results in great hardship to the employee. Therefore it is highly needed that the departmental enquiry should be completed at the earliest possible so that the period of suspension may be minimised to a reasonable period. One should keep in mind that the suspension does not mean the culmination of the service of the employee. Despite his suspension he continues to be an employee under the said authority. The suspension is a measure taken against the employee to facilitate the initiation and completion of the departmental enquiry in order to protecting the interest of the Government or the Organisation. On the other hand the indefinite suspension without any plausible and sufficient cause shall not only the wastage of human resources but also shall adversely affect the materials resources of Government which is under obligation to pay the subsistence allowance to the employee.
8. It is pertinent to mention that in the Manual of Departmental Proceeding published by the Government of Assam, Department of Personnel under Chapter-II under the heading of 'suspension', it is clearly indicated that the Government also desires that the order of suspension should not continue to any uncertain period and for which it is necessary that the departmental proceeding so initiated should be concluded at an earliest possible date and if the same could not be completed the incumbent may be allowed to resume his duty by revoking the suspension order. At Clause 2.1.4 of the said Manual reads as follows :-
"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 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."
9. A Division Bench of this Court in the case of Md. Sahobuddin v. State of Assam and Ors. (1990) 1 GLR 276 held that prolonged suspension for more than three years of the employee from his service without any further action having been taken in the matter was neither proper nor justified. In the case in hand the petitioner has been out under suspension for more than four and half years and as such the ratio of the said case seems to be squarely applicable in this case. In Md. Sahabuddin's case (supra) their Lordships in paragraphs 5 and 6 observed as follows :-
"5. Without entering into that controversy at this stage, we do think that prolonged suspension for more than three years of the petitioner from service without any further action having been taken in the matter, was neither proper nor justified.
6. Suspension from service is a very serious matter and should be for as minimum period as may only be necessary. A prolonged suspension without any justifiable cause is not only wastage of human resources but also of material resources of the organisation which has to pay the subsistence allowance etc. without any return. We find absolutely no reason to continue the suspension of the petitioner."
10. In the case of Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. and Anr., reported in (1999) 3 SCC 679 the Apex Court dealing with the question of suspension observed that exercise of right of suspension of an employee may be justified on the facts of a particular case. However, instances are not rare where the Officers have been found to be afflicted by 'suspension syndrome' and the employees have been found to be placed under suspension just for nothing.
11. In another case of the Supreme Court reported in (1999) 6 SCC 257 (K. Sukhendar Reddy v. State of A.P. and Anr.), their Lordships had to deal with a case of similar nature of suspension wherein an incumbent was placed under suspension in contemplation of departmental enquiry in view of his prime facie involvement in a criminal case registered under certain provisions of Penal Code. In the said case, however the investigation of the criminal proceeding could not be completed during two and half long years and further more there was no information as to how long it will continue further. More so, in the said case there was an allegation of involvement of many more other senior officers and despite the likelihood of the involvement of some other persons only the appellant before the Supreme Court was placed under suspension. Under such circumstances their Lordships held that when no departmental proceeding was contemplated the appellant could not be kept under suspension indefinitely and accordingly ordered re-instatement of the appellant. In paragraphs 6 and 7 it was held as follows :-
"6. The appellant was placed under suspension on 6.2.1997 by an order passed by the Chief Secretary to the Government of Andhra Pradesh under Sub-rule (1) of Rule 3 till the completion of the disciplinary proceedings against him. This order was subsequently replaced by another order passed on 12.3.1997, in which it was clearly spelt out that disciplinary proceedings against the appellant were not at all contemplated, but since he was involved in Crime Case No. 327 of 1996 registered under Sections 468, 471, etc., by Anakapalli Town Police Station, he was being placed under suspension. This matter is still under investigation by the CID and a charge-sheet has not yet been filed in the case.
7. Another vital fact which has come on record is that in the criminal case a number of senior IAS officers even senior to the appellant, may be found involved, but nothing positive or definite can be said as yet as the investigation is likely to take time. The matter is pending with the police since 1.12.1996 when the FIR was lodged at Anakapalli Town Police Station. The investigation has not been completed although about two-and-a half years have passed. We do not know how long it will take to complete the investigation. That being so, the officer of the rank of the appellant, against whom it has now come out that the disciplinary proceedings are not contemplated, cannot be kept under suspension for an indefinite period, particularly in a situation where many more senior officers may ultimately be found involved, but the appellant alone has been placed under suspension. The Government cannot be permitted to resort to selective suspension. It cannot be permitted to place an officer under suspension just to exhibit and feign that action against the officers, irrespective of their high status in the service hierarchy, would be taken."
12. In the instant case, as discussed above the petitioner being a L.P. School Teacher, has been put under suspension for more than four and half years without any initiation of disciplinary proceeding which seems to be unjustified and improper. Such indefinite suspension of the petitioner has definitely come to the petitioner as mental torment resulting in his grave penury and scourge in maintaining the livelihood of his family including himself.
13. That being the position, having regard to the above cited decisions and also on perusal of the materials available on record and upon hearing the counsel for tine parties I am of the considered view that this writ petition deserves acceptance and accordingly it is ordered that the suspension order dated 28.1.1997 (Annexure-1 to the writ petition) is hereby quashed and set aside. Consequently petitioner be re-instated forthwith and be paid all his arrears of his salary upto date excluding the subsistence allowance, if any already paid to him. However, liberty is granted to the authorities to take necessary steps for initiation of departmental proceeding or to take any other action subsequent to the decision of the criminal case if so advised.
In the result this petition is allowed.