Disposed

Anil Kumar Handique v. the State of Assam and Anr.

Gauhati HC3 Oct 2019WP(C)/4204/2019

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a PIL concerning the indefinite suspension of a Research Assistant. Relying on SC precedents, the court directed that if no review of the suspension order was conducted within 90 days of its issue, the suspension would be deemed withdrawn, and the respondent must reinstate the employee within three weeks.

What did the court decide?

The suspension order is deemed withdrawn after 90 days if no review was carried out; respondents directed to allow petitioner to join service within 3 weeks.

Anil Kumar Handique Vs the State of Assam and Anr. — Service and Employment | Gauhati HC (2019)

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GAHC010139672019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 4204/2019

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1:ANIL KUMAR HANDIQUE

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S/O. LT. MANIK CHANDRA HANDIQUE, R/O. 2A, PRAG ENCLAVE, BYE LANE NO.4, BASISTHAPUR, SURVEY HOUSING, BELTOLA, GUWAHATI, DIST. KAMRUP (M), ASSAM, PIN-781006.

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VERSUS

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1:THE STATE OF ASSAM AND ANR.

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REP. BY THE ADDL. CHIEF SECRETARY, TRANSFORMATION AND DEVELOPMENT DEPTT., DISPUR, GUWAHATI-06.

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2:THE PRINCIPAL SECRETARY GOVT. OF ASSAM TRANSFORMATION AND DEVELOPMENT DEPTT. DISPUR GUWAHATI-06

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Advocate for the Petitioner : MR A D CHOUDHURY

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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THE HON’BLE MR JUSTICE PRASANTA KUMAR DEKA ORDER

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03.10. 2019

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Heard Mr. A. D. Choudhury, learned counsel for the petitioner. Also heard Mr. D. Nath, learned Additional Senior Government Advocate for the respondent Nos. 1 and 2.

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The petitioner is aggrieved by an office order dated 28.01.2019 which is reproduced herein below:

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“GOVERNMENT OF ASSAM

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TRANSFORMATION AND DEVELOPMENT DEPARTMENT

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DISPUR

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ORDERS BY THE GOVERNOR

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OFFICE ORDER

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No. PDS 152/2018/45 Dated Dispur, the 28t January, 2019

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Whereas it appears from the report vide letter No. DCK(M)/CB/5/2018/4 dated 04.01.2019 submitted by the D.C, Kamrup (M) that Sri Anil Handique, Research Assistant, O/o the D.C. Kamrup (M) has sexually harassed a female colleague by sending objectionable and sexually implicit media and has therefore violated Rule 3(1)(iii) under Assam Civil Services(Conduct) Rules.

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Whereas the Governor of Assam is satisfied that it is necessary and expedient to place Sri Anil Handique, Research Assistant, O/o the D.C. Kamrup (M) under suspension with immediate effect in the interest of public service.

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Now therefore, pending drawal of Departmental proceedings, Sri Anil Handique, Research Assistant, is placed under suspension under Rule 6(1) of the Assam Services (Discipline & Appeal Rules), 1964 with immediate effect and until further orders.

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Sd/-

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Principal Secretary to the Govt. of Assam

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Transformation and Development Department.”

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Vide order dated 13.02.2019, the petitioner was served with a Show cause notice under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 as to why the penalties prescribed in the rule 7 of the aforesaid rules should not be inflicted on him on the following charges;

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“That while you were holding the post of Research Assistant, O/o the D.C. Kamrup (M), you had sexually harassed Smt. Priyanka Talukdar, R.A. O/o the D.C. Kamrup (M) by sending objectionable and sexually implicit media.

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That you had disturbed the working environment in the office by passing sexually coloured personal remarks to Smt. Priyanka Talukdar, R.A.”

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The petitioner on 09.03.2019 submitted his written reply in defence against the show cause issued on 13.02.2019. It is the submission of Mr. Chaudhury that since the submission

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of the reply in defence against the show cause, the respondents neither reviewed the order of the suspension nor withdrew the same allowing him to join in his regular service. Citing that the respondents cannot go on keeping the suspension order in force until and unless reasons are recorded in review passing a reasoned order indicating his presence in the office would cause bad repute to the government or any other cogent reasons. Further as no review on the said suspension order dated 28.01.2019 has yet been done, the petitioner is suffering both mentally and emotionally causing him mental stress. For the said reason the action on the part of the respondents are illegal and interference by this court is required for a direction to allow the petitioner to join in the post after setting aside the order of suspension dated 28.01.2019.

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The said submission of Mr. Chaudhury is vehemently objected by Mr. Nath on the ground that the petitioner already submitted his written reply in defence against the show cause and as such this writ petition is not maintainable at this stage.

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I have considered the submissions of the learned counsel. Admittedly, the suspension order was issued on 28.01.2019 and thereafter the petitioner submitted his written reply in defence against the show cause dated 13.02.2019 way back on 09.03.2019. After the written reply in defence against the show cause being put on record, duty was cast upon the respondents to review as to whether the suspension of the petitioner is required or not on consideration of various facts like his presence in the office would influence any witnesses against the purported charges against the petitioner or would cripple the disciplinary proceeding in any way like tempering of evidence or records etc. Further the petitioner has a right to speedy disposal so far the anticipated departmental proceeding is concerned. Merely serving the suspension order the respondent authorities cannot sit idle inasmuch as suspension of an employee is injurious to his interests and must not be continued for an unreasonably long period as held by the Hon’ble Supreme Court in O.P. Gupta Vs Union of India reported in AIR 1987 SC 2257. In Ajay Kumar Choudhury –Vs- Union of India through its Secretary and another reported in 2015 AIR SCW 2520 it was held that suspension, specially preceding the formulation of charges is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not bound on sound reasoning contemporaneously available on the record, this would render

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it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges and eventually culminate after even longer delay. The Hon’ble Apex Court after observing so held as follows:-

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“14. We, therefore, direct that the currency of a 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 the 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 concerned person 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 recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that 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”.

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Accordingly, keeping in view the said ratio as held in Ajay Choudhury (Supra) this writ petition is disposed of with a direction to the respondents that if no review was carried in respect of the said suspension order dated 28.01.2019 moreso, after the submission of the written reply in defence against the show cause issued on 13.02.2019, the suspension order shall be deemed to be withdrawn from completion of 90 (ninety) days from date of its issue and the respondent authorities shall allow the petitioner to join any of the establishments under the respondents and the said exercise shall be carried out within a period of 3 (three) weeks on receipt of the certified copy of this order.

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JUDGE

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Comparing Assistant

Anil Kumar Handique v. the State of Assam and Anr.

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Anil Kumar Handique v. the State of Assam and Anr.

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