Gauhati High Court
Jadab Chandra Nath vs The State Of Assam And 5 Ors on 14 February, 2022
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/5
GAHC010005212022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/201/2022
JADAB CHANDRA NATH
S/O. LT. NAGEN CHANDRA NATH, R/O. 29, SARATHI PATH HENGRABARI,
P.O./P.S. DISPUR, GUWAHATI, DIST. KAMRUP (M), PIN-781006, ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM IN THE
ENVIRONMENT AND FOREST DEPTT., DISPUR, GUWAHATI, PIN-781006.
2:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS AND HEAL OF
FOREST FORCE
ASSAM
PANJABARI
GUWAHATI-37.
3:THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS
WILDWIFE
ASSAM
PANJABARI
GUWAHATI-37.
4:THE CONSERVATOR OF FORESTS
NORTHERN ASSAM CIRCLE TEAPUR
ASSAM
PIN-784001.
5:THE DIVISIONAL FOREST OFFICER
LAKHIMPUR DIVISION LAKHIMPUR
ASSAM
Page No.# 2/5
PIN-787001.
6:THE SUPDT. OF POLICE VIGILANCE AND ANTI CORRUPTION ASSAM
CUM OFFICER IN CHARGE
ANTI CORRUPTION BRANCH POLICE STATION SRIMANTAPUR
GUWAHATI-32
Advocate for the Petitioner : MR. N C DAS
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
14.02.2022 Heard Ms. M. Devi, learned counsel appearing for the writ petitioner. I have also heard Mr. R. R. Gogoi, learned Standing Counsel, Forest Department, Assam, appearing on behalf of respondent Nos.1 to 5 and Ms. A. Talukdar, learned Govt. Advocate, Assam, representing the respondent No.6.
The petitioner herein was serving as a Divisional Forest Officer (DFO) under the Forest Department, Govt. of Assam, under Lakhimpur Division when he was placed under suspension by order dated 29.10.2020 in contemplation of initiation of departmental enquiry. Since then the petitioner has remained under suspension.
Ms. Devi, learned counsel for the petitioner, submits that notwithstanding the decision of the Hon'ble Supreme Court rendered in the case of Ajay Kumar Choudhary vs. Union of India Through its Secretary and another reported in (2015) 7 SCC 291 the respondents have neither reviewed the order of suspension nor have they paid the subsistence allowance to the her client as a Page No.# 3/5 result of which, the petitioner has suffered immensely.
The learned departmental counsel, Mr. R. R. Gogoi, submits on the basis of written instructions that although no charge sheet has yet been submitted against the petitioner, yet, the order of suspension has not been reviewed till today. The learned departmental counsel has also admitted that no subsistence allowance has been paid to the petitioner till today.
It appears from the materials placed on record that the writ petitioner was arrested by the police in connection with ACB P.S. Case No.11/2020 registered under Section 7(a) of the P.C. Act, 1988 (as amended) and remanded to judicial custody. Subsequently, by order dated 05.11.2020 passed by this Court in Bail Appln. No.2241/2020 he was allowed to go on bail. Materials placed before the Court also prima-facie goes to show that no charge-sheet has yet been submitted against the petitioner.
In the above factual backdrop, by placing reliance on the order dated 01.10.2021 passed in WP(C) No.4753/2021, Ms Devi has prayed for setting aside the order of suspension and to issue a direction to reinstate the petitioner back in service since more than a year has already elapsed since her client was placed under suspension.
Law is firmly settled that a Government employee placed under suspension would be entitled to receive subsistence allowance in accordance with the Rules. The order dated 29.10.2020 also clearly provides that during the period of suspension, the petitioner would be allowed to receive the subsistence allowance as per FR (53)(1)(ii)(a) subject to conditions of Sub-Rule 2 of FR 53. Notwithstanding the same, no subsistence allowance has been paid to the petitioner till date. There is also no justification offered by the learned Page No.# 4/5 departmental counsel for not doing so. Therefore, it is evident that the petitioner would be entitled to a direction from this Court for release of his subsistence allowance along with arrear dues, if any.
In so far as the failure to review the order of suspension is concerned, it is correct that in terms of the decision of the Hon'ble Supreme Court rendered in the case of Ajay Kumar Choudhary (supra) an order placing an employee under suspension is required to be periodically reviewed. In the case of Rakibuddin Ahmed vs. State of Assam and others, it has been held that the law laid down in the case of Ajay Kumar Choudhary (supra) would also be applicable in the case of a deemed suspension under Rule 6(2) of the Assam Service (Discipline and Appeal) Rules, 1964. The aforesaid law has been reiterated by the Division Bench of this Court by the order dated 30.07.2021 passed in Writ Appeal No.28/2021 [ State of Assam & others vs. Mrigen Haloi ]. In view of the above, it is now settled that the ratio laid down in the case of Ajay Kumar Choudhary (supra) would be applicable even in cases of deemed suspension under Rule 6(2) due to arrest and detention of an employee in police custody for more than 48 hours. If that be so, there can hardly be any doubt about the fact that the authorities would not be justified in keeping the petitioner under suspension without suitably reviewing the order of suspension, which exercise has evidently not been carried out in case of the writ petitioner. At the same time, this Court cannot also be oblivious of the fact that due to the outbreak of the pandemic, functioning of the various administrative departments of the Government of Assam have been impaired and it is possible that necessary review of the order of suspension could not be done on such count. Under the circumstances, I am inclined to grant one opportunity to Page No.# 5/5 the respondent No.1 to review the order of suspension dated 29.10.2020 and pass appropriate order.
This writ petition is, therefore, disposed of by granting two weeks time to the respondent No.1 to review the order of suspension dated 29.10.2020 in the light of the decision rendered in the case of Ajay Kumar Choudhary (supra) as well as the subsequent decision rendered by the Division Bench of this Court in Rakibuddin Ahmed (supra) and Mrigen Haloi (supra) and pass a speaking order redressing the grievance of the petitioner.
In so far as the prayer for release of subsistence allowance is concerned, the respondent Nos.1 and 2 are directed to ensure that the subsistence allowance, admissible under the Rules, along with arrear dues, if any, is made available to the petitioner within four weeks from today. The petitioner to produce a certified copy of this order before the respondent Nos.1 and 2 within two days from today for doing the needful.
Writ petition stands disposed of accordingly.
JUDGE Comparing Assistant