Gauhati High Court
Sudhir Kr Paul vs The State Of Assam And 3 Ors on 12 June, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/14
GAHC010225952024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5623/2024
SUDHIR KR PAUL
S/O- LATE SUNIL KUMAR PAUL,
R/O- SURYA SEN ROAD, WARD NO-6, P.O AND DIST- BONGAIGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
LAND REVENUE AND DISASTER MANAGEMENT DEPARTMENT, DISPUR,
GUWAHATI-6.
2:THE DIRECTOR OF LAND RECORDS AND SURVEYS ETC.
ASSAM
(DISCIPLINARY AUTHORITY)
RUPNAGAR
GUWAHATI-32
3:THE DISTRICT COMMISSIONER
BONGAIGAON
DISTRICT- BONGAIGAON
ASSAM
PIN- 783380.
4:THE CIRCLE OFFICER
BONGAIGAON REVENUE CIRCLE
DISTRICT- BONGAIGAON
ASSAM
PIN- 783380
Advocate for the Petitioner : MR. M KHAN, MS J AKTAR,MR A K DAS
Page No.# 2/14
Advocate for the Respondent : SC, REVENUE, GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
12.06.2025 Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned Standing Counsel, Revenue & Disaster Management Department for the respondents no. 1 & 2 and Ms. M. Bhattacharjee, leaned Additional Senior Government Advocate Assam for the respondents no. 3 & 4.
2. The petitioner before this Court was serving as a Lot Mondal in Bongaigaon Revenue Circle. He was placed under suspension by order dated 14.12.2023 with effect from 11.12.2023 as the petitioner was taken into custody by the Directorate of Vigilance and Anti Corporation Assam in connection with ACB Case No.106/2023 under Section 7(a) of PC Act, 1998 based on an FIR dated 11.12.2023 lodged by one Nilambar Barman alleging demand and acceptance of bribe in return of public service. Subsequently, the petitioner was released on bail by the order dated 22.01.2024 passed by the Court of Special Judge, Assam at Guwahati. He, thereafter, filed an application dated 05.02.2024 requesting for subsistence allowance and also for reinstatement in service.
Page No.# 3/14 Thereafter, the respondent authorities on 01.03.2024 issued a show-cause notice to the petitioner, charging him with misconduct and breach of trust, which was unbecoming on a part of the Government servant. He was asked to submit his written statements within 7 (seven) days. The petitioner replied to the show-cause notice thereafter. After submission of his reply on 20.03.2024, the Departmental proceedings commenced putting the petitioner to notice about the date of hearing etc. The suspension of the petitioner was reviewed on 20.06.2024 and subsequently, again on 02.09.2024 and 10.12.2024. It is submitted by the learned counsel for the petitioner that the action of the respondents in keeping the petitioner under suspension is contrary to the provision of law as the extension of suspension was admittedly after expiry of the 90 (ninety) days. In support of his contentions the petitioner has referred to the judgments passed by the Division Bench of this Court in State of Assam and Another vs. Ajit Sonowal and Others reported in (2024) 2 GLR 802 as well as State of Assam and Another vs. Mrigen Haloi reported in 2021 5 GLR 98. It is submitted by the learned counsel for the petitioner that as per the law laid down by the judgment of the Apex Court rendered in Union of India and Others vs. Dipak Mali reported in (2010) 2 SCC 222, the review of the suspension is required to be done within 90 (ninety) days from the date when the first suspension order was issued. Learned counsel for the petitioner referring to the Page No.# 4/14 orders passed submits that the order of suspension was issued on 14.12.2023 and the first review of the suspension was done only on 20.06.2024.
3. Referring to the judgments of the Division Bench and in view of the law laid down by the Apex Court in Dipak Mali (supra), learned counsel for the petitioner submits that once the extension of the order is not made within 90 (ninety) days from the date of issuance of the suspension order, the suspension order loses its force and it cannot be given effect to by subsequent extensions. He submits that notwithstanding the Disciplinary Proceedings being initiated against the petitioner the review of the suspension was mandatorily required to be conducted within 90 (ninety) days. He, therefore, submits that the continuation of suspension of the petitioner being illegal in view of the same not being reviewed within the mandatory period, the suspension has lost its force and therefore, the same should be interfered with, set aside and all the consequential review orders should also be interfered with and set aside.
4. Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, on the other hand disputes the contentions raised by the petitioner. Referring to the affidavits filed by the respondent no.3, it is submitted that the suspension order was issued on 14.12.2023 and a show-cause notice was issued to the petitioner on 01.03.2024. Learned Additional Senior Government Page No.# 5/14 Advocate, Assam, therefore submits that after suspension of the petitioner, within 90 (ninety) days the show-cause notice was issued and therefore, there is no infirmity with the procedure adopted by the respondents and notwithstanding that the continuation of the suspension was duly reviewed on 20.06.2024, 02.09.2024 and 10.12.2024.
5. Learned Additional Senior Government Advocate, Assam also refers to the Office Memorandum No. ABP.13/2018/Pt./35 dated 04.02.2020, wherein it is provided that after issuance of the Memorandum of Charges/Charge-Sheet, the Senior Most Secretaries will undertake the review within a period of 6 (six) months as regards the desirability of the further continuance of the suspension order. Learned Additional Senior Government Advocate submits that the procedure prescribed has been followed by the respondents, therefore, there is no infirmity in continuation of the suspension order. With regard to the judgments placed before the Court, it is submitted that in Ajit Sonowal (supra) the suspension order was interfered with as the suspension order was not reviewed on the ground that the Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964 did not provide for review of the suspension order. It is submitted that in the facts of the case in Ajit Sonowal (supra) that after issuance of the suspension order it was not reviewed or revoked by the Disciplinary Authority within 90 (ninety) days as no memorandum of charge was Page No.# 6/14 served on the respondents therein and it is under those circumstances, the Division Bench interfered with the order. In Mrigen Haloi (supra) also on similar facts the Writ Appellate Court dismissed the appeal preferred by the State of Assam.
6. Learned counsel for the parties have been heard and pleadings on record have been carefully perused.
7. There is no dispute on facts nor is there any quarrel in the proposition of law laid down in Ajay Kumar Choudhury vs. Union of India reported in (2015) 7 SCC 291 and Dipak Mali (supra) which were followed in Ajit Sonowal (supra) and Mrigen Haloi (supra). The Office Memorandum No. ABP.13/2018/Pt./35 dated 04.02.2020 is still in force which provides that the Memorandum of Charges/Charge-Sheet must be served on the delinquent officer or employee before the expiry of 3 (three) months from the date of issuance of the order of suspension and it mandates that after issuance of the Memorandum of Charges/Charge-Sheet the Senior Most Secretaries will undertake the review within 6 (six) months as regard to the desirability for further continuance with the suspension order.
8. In the facts of the present case, the petitioner was placed under suspension on 14.12.2023 and the Disciplinary Proceeding was initiated against Page No.# 7/14 the petitioner by serving of a show-cause notice on 01.03.2024. This show- cause notice admittedly was served before the expiry of 90 (ninety) days and the Departmental Proceedings had commenced pursuant to the issuance of the charge-sheet. During the course of the hearing, learned Additional Senior Government Advocate submits before the Court that the Enquiry Officer has concluded the proceedings and the matter is before the Disciplinary Authority at present.
9. In the judgment of the Apex Court in Dipak Mali (supra), Rules 10 (6) and 10(7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 were under consideration with respect to the suspension and the extension of the suspension of the respondent therein. Under Rules 10 (6) and 10(7) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, it is specifically prescribed that suspension shall be reviewed or modified before expiry of 90 (ninety) days from the date of the order of suspension. If it is not reviewed then the suspension will not be valid after a period of 90 (ninety) days.
However, such prescription is not provided for under Rule 6 of the Assam Services (Discipline and Appeal) Rules, 1964. That apart, pursuant to the order dated 30.11.2017 passed in WP(C) No. 6465/2017 and other bunch of writ petitions the OM No. dated 04.02.2020 was issued by the State of Assam Page No.# 8/14 whereby it was provided that Memo of Charges/Charge-sheet before expiry of 3 (three) months was required to be issued from the date of suspension of order. This OM dated 04.02.2020 is extracted below for ready reference:
Government of Assam Department of Personnel :: Personnel (B) Dispur ::: Guwahati No. ABP.13/2018/Pt/35 Dated Dispur, the 4th February 2020 Hon'ble High Court Guwahati in its order dated 30-11-2017 in a series of writ petitions, the lead case being W.P.(C) No.6465/2017 has directed to issue a notification indicating the law laid down by the Hon'ble Supreme Court in Ajay Kumar Choudhary-VS-Union of India case to the effect that the Disciplinary Authorities are to strictly comply with the requirement to issue the Memorandum of Charges/Charge Sheet before the expiry of three months from the date of issuance of Order of suspension.
It is therefore directed that all the Senior Most Secretaries of all the Departments shall ensure that the Memorandum of Charges/Charge Sheet is served on the delinquent officer/employee before the expiry of three months of period from the date of issuance of Order of suspension. They shall also ensure that the currency of the 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 within 3 (three) months of suspension, a reasoned Order must be passed for the extension of the suspension, wherever necessary.
The officer proposing for suspension shall also ensure that the charges are framed and submitted to the Disciplinary Authority within two weeks from the date of passing order of suspension.
After issuance of Memorandum of Charges/Charge - Sheet, the Senior Most Page No.# 9/14 Secretaries shall undertake a review within 6 months as regards the desirability to further continue with the suspension Order.
Senior Most Secretaries will be held responsible if cases of suspension in their respective Departments are not dealt with and reviewed accordingly. However, for those certain categories of employees for whom Disciplinary Authorities are not the Governor or the Chief Secretary, the concerned Appointing Authority as listed at Schedule in the Assam Services (Discipline and Appeal) Rules, 1964 will be held responsible if cases of suspension under their subordinate offices are not dealt with and reviewed accordingly. All the departments shall submit quarterly return to the Personnel (B) Department with details about the suspension Order issued, Memorandum of Charges /Charge Sheet served upon the delinquent officer/employee and if any extension of suspension period is given etc. The Personnel Department will compile the reports received from all the departments and place before the undersigned for a periodical review every 3 months of the last 3 months suspension orders for further necessary action."
11. A perusal of the OM dated 04.02.2020 extracted above reveals that Memo of Charges/Charge-sheet is required to be issued before expiry of 3 (three) months from the date of issuance of the suspension order. This Office Memorandum No. ABP.13/2018/Pt./35 dated 04.02.2020 is not under challenge in the present proceeding. This OM also appears to have not been brought to the notice of this Court and consdiered in Ajit Sonowal (supra).
12. Be that as it may, in Ajit Sonowal (supra), while ultimately rejecting the contentions of the appellants-State held that an order of suspension requires periodic review as mandated in Ajay Kumar Choudhury (supra) and Dipak Mali Page No.# 10/14 (supra) and which view was considered and followed in Rekibuddin Ahmed vs. State of Assam in WP(C) No. 3218/2019, wherein while the Division Bench of this Court declined to accept such contentions of the appellants, however, held that Rule 6 (1-A) of the Assam Services (Discipline and Appeal) Rules, 1964, permits the authorities to place an employee under suspension when Disciplinary Proceedings against him is contemplated or is pending and considering the fact that the Disciplinary Proceedings has, in the meantime, been initiated by the respondents therein, the Division Bench while disposing of the appeal made it clear that the order passed in Ajay Kumar Choudhury (supra) would not come in the way of the Disciplinary Authority from exercising jurisdiction under Rule 6 (1) of the Assam Services (Discipline and Appeal) Rules, 1964 and issue a fresh order of suspension, if so advised.
13. Coming to the present proceedings, it is evident that the petitioner was suspended on 14.12.2023 with effect from 11.12.2023. Before expiry of 3 (three) months, the Disciplinary Proceedings were initiated by issuance of a show-cause notice dated 01.03.2024. Subsequently, the review of suspension was also undertaken on 20.06.2024, 02.09.2024 and 10.12.2024 which was also within a period of 6 (six) months from the earlier order passed. The fact remains that the Disciplinary Proceedings were initiated within a period of 3 (three) months in terms of the Office Memorandum No. ABP.13/2018/Pt./35 Page No.# 11/14 dated 04.02.2020 and the petitioner has urged before the Court that such action of the respondents is violative of the direction contained in the judgment rendered in Ajay Kumar Choudhury (supra) and Dipak Mali (supra) which followed by the Ajit Sonowal (supra), Mirgen Haloi (supra), Rekibuddin Ahmed (supra), whether the OM dated 04.02.2020 can be held to be implied with overruled by this Court is a question which need not detain this Court at this stage and the same is left open to be decided in an appropriate proceedings.
There is no dispute on facts in the present proceedings that pursuant to the order of suspension issued, the show-cause notice has been served on the writ petitioner and the Departmental Proceedings have been initiated and further as submitted by the learned Additional Senior Government Advocate, Assam, during the course of the hearing, the Departmental Proceedings have been concluded and the matter is presently before the Disciplinary Authority for necessary orders. In that view of the matter, this Court while respectfully agreed to the ratio laid down in the judgments cited and discussed above, however, declines to interfere with the suspension order issued by the concerned Authority. The respondent Authorities, however, shall ensure that the Disciplinary Authority passes appropriate orders in the Departmental Proceedings initiated against the writ petitioner on the basis of the enquiry report stated to have been submitted by the Enquiry Officer and any such order Page No.# 12/14 that is passed by the Disciplinary Authority shall be served on the petitioner. While passing such appropriate orders, the respondents authority will also reconsider the question of continuing the petitioner under suspension by passing such appropriate orders as permitted under the law.
14. Even in the judgment of the Ajay Kumar Choudhury (supra) while the Apex Court laid down the procedure of reviewed of the suspension order within 3 (three) month if the memorandum of charges or charge sheet is not served to the delinquent officer, however, on the facts of the case in view of the charge- sheet having been served on the delinquent officer, the directions were held to be not relevant to the petitioner/appellant therein. It is to be noted herein that the question as to whether the Disciplinary Authority would be entitled to place an employee under prolonged suspension without reviewing the order of suspension came up for consideration before the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary (Supra). The findings of the Apex Court in paragraphs 20 and 21 of the said decision would be relevant in the facts of this case and are, therefore, extracted below :-
"20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after judicial scrutiny and supervision. The Code of Criminal Procedure, 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond a period of 90 days where the investigation relates to an offence punishable with Page No.# 13/14 death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh v. State of Bihar' and more so of the Constitution Bench in Antulay, we are spurred to extrapolate the quintessence of the proviso to Section 167(2) CrPC, 1973 to moderate suspension orders in cases of departmental/disciplinary enquiries also. It seems to us that if Parliament considered it necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a fortiori suspension should not be continued after the expiry of the similar period especially when a memorandum of charges/charge-sheet has not been served on the suspended person. It is true that the proviso to Section 167(2) CrPC postulates personal freedom, but respect and preservation of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.
21. We, therefore, direct that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/chargesheet 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 person concerned 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. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the 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."
15. Accordingly, in view of the discussions above, this Court is of the Page No.# 14/14 considered view that the facts do not call for any interference with the order of suspension dated 14.12.2023 and/or extension/ review of the suspension order as the respondents have followed the timeline and the procedure prescribed in the Office Memorandum No. ABP.13/2018/Pt./35 dated 04.02.2020. What is however noticed, during the course of the hearing, is that the Disciplinary Proceedings have been concluded and the matter is before the Disciplinary Authorities but no final order has been passed. Accordingly, this Court directs the respondents authorities to expeditiously complete the Disciplinary Proceedings within a period of 30 (thirty) days from the date of receipt of a certified copy of this order and pass necessary orders thereon. In the event, the charges made against the petitioner are found to be unsustainable during the Disciplinary Proceedings, then the petitioner shall be reinstated in service with immediate effect and the period of suspension will be treated as period of duty.
16. In terms of the above, the writ petition stands disposed of. No order as to cost.
JUDGE Comparing Assistant