Allowed

Anurag Shandilya v. the State of Assam and 3 Ors.

Gauhati HC17 Dec 2019WP(C)/5218/2019

Case brief

AI extract

What is this about?

Petitioner challenged deemed suspension under Assam Service Rules due to arrest exceeding 48 hours. Court held the suspension order automatically elapsed after three months without review, allowing court-based prolongation, and ordered immediate reinstatement.

What did the court decide?

Petitioner reinstated in service with immediate effect; benefits to be made in accordance with rules.

Anurag Shandilya Vs the State of Assam and 3… — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/6

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GAHC010172202019

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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) 5218/2019

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1:ANURAG SHANDILYA

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S/O- SRI RATUL SHARMA, R/O- H NO. 15, BRINDABAN PATH, SURVEY, BELTOLA, P.S- HATIGAON, GUWAHATI, DIST- KAMRUP (M), ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND 3 ORS

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM, TRANSPORT DEPTT, DISPUR, GHY- 06

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2:THE COMMISSIONER OF TRANSPORT TO THE GOVT OF ASSAM JAWAHAR NAGAR KHANAPARA

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GHY- 22

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3:THE ASSTT COMMISSIONER OF TRANSPORT ASSAM KHANAPARA GUWAHATI- 22

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4:THE DTO (ENFORCEMENT) KAMRUP (M) BETKUCHI GHY- 4

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Advocate for the Petitioner : MR R SINGHA

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Advocate for the Respondent : SC, TRANSPORT

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 17-12-2019

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Heard Mr. R. Singha, learned counsel for the petitioner.

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Also heard Mr. Y. Doloi, learned Standing Counsel, Transport Department, Government of Assam for all the respondents.

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The petitioner joined his service on 22.12.2014 after being appointed in the post of Assistant Enforcement Inspector in the Department of Transport, Government of Assam. In the year 2016, the petitioner was transferred to the office of the District Transport Officer, Kamrup (M) at Guwahati in which post he joined on 28.11.2016. While he was serving as such Assistant Enforcement Inspector in the office of the District Transport Officer (Enforcement), Kamrup (M), the petitioner was arrested on 12.07.2018 in connection with CID Police Station Case No. 6/2018, registered under Sections 120(B)/379/420/468/471, Indian Penal Code (I.P.C.) read with Section 13(2) of the Prevention of Corruption Act, read with Section 25/40/41 of the Assam Forest Regulation Act, 1891. Later on, Section 119 of the Indian Penal Code has been added. The said CID Police Case No. 6/2018 was registered on the basis of an FIR lodged by an Inspector of Police, CID, Assam, Guwahati on 18.02.2018 on the basis of some reports published in various local newspapers alleging running of a syndicate of illegal trade in coal in various parts of Assam. After being so arrested, the petitioner was placed under suspension in view of his detention beyond 48 hours in custody, by an order dated 21.08.2018 issued by the respondent no. 2 in exercise of the powers conferred under sub-rule (2) of Rule 6 of the Assam Service (Discipline and Appeal) Rules, 1964 (“1964 Rules”, in short) and by the said order dated 21.08.2018, the petitioner was deemed to have been placed under suspension with effect from the date of his arrest i.e. 12.07.2018 until further orders. When till 14.07.2019, the petitioner has not been reinstated in service and also has not been paid the subsistence allowance, the petitioner has approached this Court by this writ petition under Article 226 of the Constitution of India seeking setting aside and quashing of the impugned order of suspension dated 21.08.2018 with the further prayer for his reinstatement and a direction to the respondent authorities to

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release the subsistence allowance entitled to him from the date of suspension i.e. 12.07.2018.

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The grounds urged on behalf of the petitioner are that since the date of suspension, the case of the petitioner was not reviewed within a period of 3 (three) months and in view of the decision of the Hon’ble Supreme Court in Ajay Kumar Choudhury vs. Union of India reported in (2015) 7 SCC 291, the order of suspension cannot be prolonged beyond 3 (three) months. Reference is also made to the decision of a Division Bench of this Court dated 04.10.2019 rendered in W.P.(C) No. 3218/2019 (Rakibuddin Ahmed vs. The State of Assam and Others) wherein the matter of deemed suspension under sub-rule (2) of Rule 6 of the 1964 Rules has been dealt with holding that the principle laid down in Ajay Kumar Choudhury (supra) is also applicable in case of deemed suspension under Rule 6(2) of the 1964 Rules. It is further submitted that the petitioner is entitled to receive the subsistence allowance during the period of his suspension and the same has to be paid by the respondent authorities immediately when it has fallen due.

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Mr. Doloi, learned Standing counsel has produced the relevant records. It is submitted by him that the subsistence allowance has been paid to the petitioner in the meantime and as such, the said issued does not survive for consideration. He submits that the case of the petitioner was reviewed and his period of suspension was extended for another 3 (three) months w.e.f. 07.11.2019 by an order dated 07.11.2019. Thus, it cannot be said that the case of the petitioner was not reviewed following the principle laid down in Ajay Kumar Choudhury (supra).

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I have considered the submissions of the learned counsel for the parties and also perused the records produced by the learned Standing counsel for the Transport Department. The petitioner while serving as an Assistant Enforcement Inspector and after being posted in the office of the District Transport Officer (Enforcement), Kamrup (M), Guwahati, was placed under suspension by the order dated 21.08.2018 in view of his arrest and detention beyond 48 hours in connection with CID Police Station Case No. 6/2018 registered under 120(B)/379/420/468/471, Indian Penal Code (I.P.C.) read with Section 13(2) of the Prevention of Corruption Act, read with Section 25/40/41 of the Assam Forest Regulation Act, 1891 wherein Section 119, I.P.C. has been added later on.

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From perusal of the order dated 21.08.2018, it is noticed that the petitioner was placed under suspension by respondent no. 2 in exercise of the powers conferred under subrule (2) of Rule 6 of the 1964 Rules and the petitioner was deemed to have been placed under suspension with effect from the date of his arrest i.e. 12.07.2018 until further orders. The petitioner was allowed to be released on bail by an order dated 16.08.2018 passed by this Court in the bail application, B.A. No. 1687/2018. From the records produced, it is not reflected that the respondent authorities had carried out any review within a period of 3 (three) months either from the date of deemed suspension i.e. 12.07.2018 or from the date of passing the order of suspension in exercise of the powers under Rule 6(2) of the 1964 Rules i.e. 21.08.2018. It was only on 07.11.2019, the respondent no. 2 on receipt of a report dated 21.10.2019 forwarded by the Deputy Superintendent of Police, CID, Assam, decided to extend the period of suspension of the petitioner for another 3 (three) months from the date of issue of the order, meaning thereby, by the order dated 07.11.2019, the respondent no. 2 has extended the period of suspension in case of the petitioner who was placed under suspension by the order dated 21.08.2018, for another 3 (three) months when not only the period of 3 (three) months had elapsed from the date of order dated 21.08.2018 but more than 1 (one) year had elapsed from the date of order dated 21.08.2018. The relevant records do not disclose anything to the effect that prior to 07.11.2019, the respondent authorities had carried out any review as regards desirability for extension of suspension in case of the petitioner.

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From the principle laid down in Ajay Kumar Choudhury (supra), it has emerged that the currency of suspension order should not extend beyond 3 (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, a reasoned order must be passed for extension of suspension. The petitioner was placed under suspension in view of his detention in custody for a period exceeding 48 hours and sub-rule (2) of Rule 6 of the 1964 Rules provides that the Government Servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours shall be deemed to have been suspended with effect from the date of such detention, by an order of such appointing authority and the Government Servant so suspended, shall remain under suspension until

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further orders. The proviso to sub-rule (2) of the Rule 6 states that where the detention is made on account of any charge not connected with his position as a Government Servant or continuance in office it is not likely to embarrass the Government or the Government Servant in the discharge of his duties or the charge does not involve moral turpitude, the Appointing Authority may vacate the suspension order made or deemed to have been made when he is released on bail or is not otherwise in custody or imprisonment. A question as to whether the principle laid down in Ajay Kumar Choudhury (supra) is also applicable in a case of deemed suspension under sub-rule (2) of Rule 6 of the 1964 Rules has been answered by a Division Bench of this Court, on reference, in the case of Rakibuddin Ahmed (supra). After discussing the principle laid down in Ajay Kumar Choudhury (supra) and the provision of Rule 6 of the 1964 Rules along with the Manual of Departmental Proceeding framed by the State of Assam, this Court has observed that the principle laid down in the case of Ajay Kumar Choudhury (supra) would also be applicable in a case of deemed suspension under Rule 6(2) of the 1964 Rules. As has been noticed above, after being placed under suspension by the order dated 21.08.2018, the respondent authorities did not hold review within a period of 3 (three) months from the said order of suspension. As such, there cannot be any extension of the period of suspension of the petitioner, by any subsequent review if no review of the order of suspension was carried out within a period of 3 (three) months from the order of suspension passed initially. In such view of the matter, the review carried out by the respondent no. 2 on 07.11.2019 cannot revive order of suspension, the foundation of which had already stood removed immediately after elapse of period of 3 (three) months from the order of suspension dated 21.08.2018.

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Accordingly, this writ petition is disposed of by holding that the effect and operation of the order of suspension dated 21.08.2018 does not survive on this date as it has automatically elapsed on expiry of a period of 3 (three) months from the date of passing of the order dated 21.08.2018 in the absence of review within a period of 3 (three) months therefrom and accordingly, the petitioner shall be reinstated in service with immediate effect. Consequentially, the benefits available to the petitioner shall be made in accordance with the rules and as per his entitlements.

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With the observations made above and directions given, this writ petition stands

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disposed of. No costs.

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JUDGE

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Comparing Assistant

Anurag Shandilya v. the State of Assam and 3 Ors.

Case brief

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Anurag Shandilya v. the State of Assam and 3 Ors.

Case brief

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