Gauhati High Court
Prasanta Dutta vs The State Of Assam And 4 Ors on 26 November, 2021
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
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GAHC010189642021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6081/2021
PRASANTA DUTTA
SON OF SRI PURNA DUTTA
HOUSE NO. 9A, BISHNU PATH MATHURA NAGAR, DOWN TOWN, DISPUR,
GUWAHATI-781006
VERSUS
THE STATE OF ASSAM AND 4 ORS
REP. BY THE SECRETARY TO THE HOME DEPARTMENT, GOVT. OF ASSAM,
SECRETARIAT COMPLEX, DISPUR, GUWAHATI-781006.
2:THE PRINCIPAL SECRETARY TO THE DEPARTMENT OF HOME AFFAIRS
GOVT. OF ASSAM
SECRETARIAT COMPLEX
DISPUR
GUWAHATI-781006.
3:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
HOME AND POLITICAL DEPARTMENT
SECRETARIAT COMPLEX
DISPUR
GUWAHATI-781006
4:THE DIRECTOR GENERAL OF POLICE
ASSAM POLICE HEAD QUARTER
ULUBARI
GUWAHATI-781003.
5:THE ADDITIONAL DIRECTOR GENERAL OF POLICE
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CRIME INVESTIGATION DEPARTMENT (CID)
ASSAM POLICE ULUBARI
GUWAHATI-78100
Advocate for the Petitioner : MR. S KALITA
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 26-11-2021 Heard Mr. S. Kalita, learned counsel for the petitioner, who submits that the petitioner was placed under suspension vide Order dated 17.06.2021. He submits that despite 5 (five) months having elapsed, no memorandum of charge/charge sheet has been filed against the petitioner. He also submits that there has been no review of the petitioner's suspension order for extension of the suspension order.
2. Mr. R. Dhar appearing for all the respondents submits that he has received instructions this morning vide letter dated 25.11.2021, issued by the Joint Secretary to the Government of Assam, Home (A) Department. He submits that in terms of the letter dated 25.11.2021, the suspension period of the petitioner was extended for another period of 3 (three) months vide Notification dated 08.11.2020. He further submits that he may be given 7 (seven) days time to file affidavit-in-opposition.
3. I have heard the learned counsels for the parties.
4. In the case of Ajay Kumar Choudhury Vs. Union of India & Anr., reported in (2015) 7 SCC 291, the Apex Court has held that the currency of a suspension order should not extend beyond 3 (three) months, if within this period, the memorandum of charges/charge sheet is not served upon the delinquent officer/employee. The Apex Court has also held that if the memorandum of charge/charge sheet is served, a reasoned order must be passed for extension of the suspension.
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5. In the present case, the letter dated 25.11.2021 issued by the Joint Secretary to the Government of Assam, Home (A) Department, which is addressed to Mr. R. Dhar, learned Addl. Senior Government Advocate states that the suspension given to the petitioner was extended for a period of 3 (three) months vide Department Order dated 08.07.2021. The letter dated 25.11.2021 also states that the DIG of Police (Admin) Assam has submitted draft charges, statement of allegations, list of witnesses against the petitioner for initiating departmental proceeding against the petitioner vide letter dated 27.10.2021.
6. A further reading of the letter dated 25.11.2021, shows that the departmental proceeding has not been initiated as on date, though approval for initiating the same had been granted by the Judicial Department. The relevant portion of the letter dated 25.11.2021 is reproduced below:-
"The suspension period of Shri Prasanta Dutta, APS (under suspension) was extended for a period of 3 (three) months vide this Department's Order No. HMA.593/2017/238 dated 08.11.2021 (copy enclosed).
The Deputy Inspector General of Police (Admin), Assam submitted draft charges, statement of allegations, list of witnesses etc. against Shri Prasanta Dutta, APS (under suspension) for initiating departmental proceedings against the officer vide letter No.Proc.Cell/XXVII/1/2021/96 dated 27.10.2021 (copy enclosed).
Accordingly, views of the Judicial Department have been obtained in the matter. The Judicial Department advised that departmental proceedings may be initiated against the officer by issuing Show Cause Notice. The views of the Judicial Department are as follow:-
"It appears that the delinquent officer namely Sri Prasanta Dutta, APS was placed under suspension for his alleged involvement in CID P.S. Case No. 21/2021, pending drawal of D.P. Now, it is seen that the investigation of the aforesaid case culminated into filing of charge-sheet before the court but name of the delinquent officer has not been figured in the list of accused persons named in the charge sheet.
However, from the draft Charge-Memo/show-cause notice (Flag-R) and materials on record (particularly Sl.4, 30 & 37/c) contains some facts regarding his lapse as a Govt. servant connected to the incidence leading to the occurrence, the department may proceed with the draft show-cause notice.
Page No.# 4/6 The department may decide appropriately.
This has the approval of LR, Assam."
Accordingly, the Show Cause Notice was issued against Shri Prasanta Dutta, APS (under suspension) vide No.HMA.89/2021/238 dated 24.11.2021 (copy enclosed).
In view of the above, you are requested kindly to apprise the Hon'ble Court accordingly and to plead before the Hon'ble Court for appropriate steps to be taken against Shri Prasanta Dutta, APS (under suspension)."
7. The Notification dated 08.11.2021, extending the suspension order of the petitioner is reproduced below:-
"NOTIFICATION Dated Dispur, the 8th November, 2021 No.HMA.593/2017/238 : The suspension of Shri Prasanta Dutta, APS, who was placed under suspension vide this Department's Order No.HMA.89/2021/50 dated 17/06/2021, is hereby extended till 10/12/2021 or until further orders whichever is earlier."
8. Clause 2.1.8 of the manual of the departmental proceeding states as follows:-
"2.1.8. The following principles and procedure with regard to suspension need strict compliance-
(i) suspension should be resorted to only in cases where a major punishment is likely to be imposed if the charges are proved;
(ii) charges and the statement of allegations should be served within three months from the date of suspension failing which the Government Servant concerned should be reinstated; and
(iii) In cases where it is not reasonably practicable to prepare the charges for service within three months from the date of suspension and the continued suspension of the Government servant is considered necessary in the public interest, the authority concerned should move the Personnel Department through Administrative Department well before the expiry of the period of three months with a letter detailing the nature of the allegations and the reasons for which charges could not be prepared so that the Personnel Department could advise whether any further extension of the period of suspension should be Page No.# 5/6 permitted or not."
In the present case, the extension of the suspension order has been made vide Notification dated 08.11.2021, i.e. way beyond the 3 (three) months period provided in Clause 2.1.8 of the manual of the departmental proceeding, inasmuch as, the petitioner was suspended on 17.06.2021.
9. A perusal of the above clearly goes to show that the application for extending the suspension order has been made after the expiry of 3 (three) months from the date of the suspension order. The letter dated 25.11.2021 and the Notification dated 08.11.2021 are made a part of the record and marked as Annexure 'X' and 'Y' respectively.
10. In view of the fact that no memorandum of charge/charge sheet has been filed till today against the petitioner, though approval for initiating a departmental proceeding has been given, this Court is of the view that the case of Ajay Kumar Choudhury (Supra) will be applicable to the case in hand. As the extension of the suspension order vide Notification dated 08.11.2021 has been made after the expiry of 3 (three) months and there is nothing to show that Personnel Department had advised the extension of the suspension period, the same is not sustainable in terms of Clause 2.1.8 (iii) of the Manual of departmental proceedings and as per Ajay Kumar Choudhury (Supra). Accordingly, the impugned Order dated 17.03.2021 is set aside. The respondents are directed to reinstate the petitioner immediately. However, the State respondents are free to transfer the petitioner 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 document till the stage of him having to prepare his defense. It is needless to add that the respondents have the liberty to go ahead with the departmental proceeding initiated against the petitioner as per law.
11. The writ petition is accordingly disposed of.
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