Allowed

Manash Kamal Gogoi v. the State of Assam

Gauhati HC15 Mar 2019WP(C)/711/2019

Case brief

AI extract

What is this about?

Deemed suspensions following arrest continued without timely charge-sheets or review. The court applied the Manual’s three-month review requirement to Rule 6(2) suspensions, while permitting exceptional delayed reviews supported by written reasons. It allowed all three petitions, set aside the suspension orders and held the employees entitled to reinstatement.

What did the court decide?

All three impugned suspension orders set aside; the petitioners held entitled to reinstatement in service.

Manash Kamal Gogoi Vs the State of Assam — Service and Employment | Gauhati HC (2019)

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Page No.# 1/43

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GAHC010216362018

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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) 6842/2018

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1:ATFUR RAHMAN

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S/O LATE LATE WAHAB ALI, R/O H. NO. 7, NIRIBILI PATH BYELANE NO. 4, SIXMILE, KAMRUP(M), GHY- 781022

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VERSUS

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1:THE STATE OF ASSAM AND 3 ORS.

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REP. BY SECRETARY TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., ASSAM AT DISPUR, GHY- 781006.

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2:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT ASSAM PANJABARI JURIPAR KAMRUP(M) GHY- 781022.

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3:THE DEPUTY COMMISSIONER KAMRUP GUWAHATI- 781001

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4:THE CHIEF EXECUTIVE OFFICER ZILLA PARISHAD KAMRUP GUWAHATI- 781001

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Advocate for the Petitioner : MR. SK N MOHAMMAD

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Advocate for the Respondent : MR. D NATH(GA, ASSAM)

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Page No.# 2/43

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Linked Case : WP(C) 711/2019

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1:MANASH KAMAL GOGOI S/O- LATE AKON GOGOI R/O- BAIRAGIMATH MOLAKHUBOSA P.S AND P.O- BAIRAGIMATH DIST- DIBRUGARH- 786001 ASSAM

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VERSUS

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1:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT OF ASSAM PUBLIC WORKS DEPTT DISPUR- 06 GUWAHATI ASSAM

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2:THE DEPUTY SECRETARY GOVT OF ASSAM PWD DISPUR GUWAHATI- 781006

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3:THE EXECUTIVE ENGINEER PWD RURAL (ROADS) DIVISION DIBRUGARH- 786001

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Advocate for the Petitioner : MRS. S BORPATRA GOHAIN Advocate for the Respondent : MR. D NATH(GA ASSAM)

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Linked Case : WP(C) 8695/2018

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1:DHIRAJ KUMAR DAS S/O MAHINDRA NATH DAS R/O MAJOR HATI

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P.O. AND DIST. BARPETA ASSAM

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Page No.# 3/43

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VERSUS

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1:THE STATE OF ASSAM AND ANR.

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM

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FOREST AND ENVIRONMENT DEPARTMENT DISPUR GUWAHATI -6.

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2:THE DIVISIONAL FOREST OFFICER NORTH KAMRUP DIVISION RANGIA.

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Advocate for the Petitioner : MR A D CHOUDHURY Advocate for the Respondent : MR. S BISWAS(SC FOREST)

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BEFORE HONOURABLE MR. JUSTICE N. KOTISWAR SINGH

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JUDGMENT

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Date : 15-03-2019

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Heard Mr. A. D. Choudhury, learned counsel for the petitioner in WP(C) 8695/2018, Ms. S. Borpatra Gohain, learned counsel for the petitioner in WP(C) 711/2019, and Mr. SK. S. N. Mohammad, learned counsel for the petitioner in WP(C) 6842/2018.

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These three petitions have been clubbed together in view of the common issues raised about the validity of continued suspension of the petitioners.

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The petitioner in WP (C) 6842/2018, Sri Atfur Rahman, was placed under suspension vide order dated 26.06.2018, by stating that he was arrested on 24.05.2018 and detained in police custody and accordingly, he shall be deemed to have been suspended from the date of detention, i.e., 24.05.2018 under Rule 6 (2) of the Assam Services (Discipline and Appeal) Rules, 1964.

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In WP(C) 8695/2018, the petitioner, Sri Dhiraj Kumar Das, Forest Grade –I was placed under suspension vide order dated 12.09.2018 pending drawal of departmental proceeding or criminal proceeding by the competent authority or both with immediate effect from the date of his arrest on 11.09.2018 until further orders.

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In WP (C) 711/2019, the petitioner, Sri Manas Kamal Gogoi (U.D.A), Auditor, Tengakhata Rural Roads Sub-Division under PWD Dibrugarh Rural Road Division was placed under suspension vide order dated 24.08.2017 stating that the petitioner was arrested on 21.08.2017 and a disciplinary proceeding had been contemplated against him and accordingly, in exercise of power conferred under Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, the petitioner is deemed to have been placed under suspension with effect from date of his detention pending drawal of departmental proceeding against him.

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From the above, what can be seen is that the petitioners were suspended either in contemplation of a departmental proceeding or deemed to have been suspended after being arrested in certain criminal cases.

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The common issue raised by the petitioners in this batch of writ petitions is that, as held by the Hon’ble Supreme Court in case of Ajay Kumar Choudhury Vs. Union of India and others reported in (2015) 7 SCC 291, and the other decisions of this Court rendered by relying on the aforesaid case of Ajay Kumar Choudhury (Supra), as there was no review of the suspension orders within ninety (90) days from the date of suspension, the continued suspension of the petitioners would be not permissible, and accordingly, the suspension orders are liable to be set aside and the petitioners may be directed to be reinstated in service.

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In addition to the aforesaid decision in Ajay Kumar Choudhury (Supra), learned counsel for the petitioners have also relied on the decisions of this Court rendered in WP (C) 220/2018 (Vijay Kumar Singh Vs. The State Of Assam) disposed of on 01.01.2018,

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Page No.# 5/43

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WP (C) 6064/2018 , (Brijesh Kumar Rai Vs. Union of India And 9 Ors.) disposed of on 28.09.2018, WP(C) 2863/2018 disposed of on 26.09.2018.

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Another decision of the Division Bench of this Court in WA No. 259/2018 disposed of on 12.11.2018, which also relied on the decision of Ajay Kumar Choudhury (Supra) was also referred to, which did not interfere with the decision of the learned Single Judge setting aside the suspension order, on the ground that no review was held within ninety (90) from the date of the suspension.

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In all these petitions this Court had interfered with and set aside the suspension orders in respect of which no review was held within the period of ninety (90) days in terms of the decision of the Hon’ble Supreme Court in Ajay Kumar Choudhury (Supra).

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As evident from the above, since Ajay Kumar Choudhury (Supra) was the lead case and reliance was placed heavily on it, by the learned Counsel for the petitioners, specifically Para 21 of the said decision, the same is reproduced herein below:

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“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/Chargesheet 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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Page No.# 6/43

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It has been submitted on behalf of the learned counsel for the petitioners that the aforesaid decision in Ajay Kumar Choudhury (Supra) had laid down the law regarding the scope of continued suspension, whether the suspension order was issued in contemplation of departmental enquiry or deemed to have been issued upon the employee arrested in connection with criminal offence.

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It is the contention of the petitioners that as far as suspension is concerned, whether be it under Rule 6 (1) or Rule 6 (2) of the Assam Services (Discipline and Appeal) Rules, 1964, the nature of suspension is the same and these ought to be governed by the same yardsticks as regards continuation as suspension.

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It is the submission advanced on behalf of the petitioners that irrespective of the nature of the suspension, whether in contemplation of a departmental enquiry or arising out of arrest in a criminal case, if there be no review of the suspension order within ninety (90) days and if the departmental proceeding or the trial had not been initiated in the meantime, it would be liable to interfere with.

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The Hon’ble Supreme Court accordingly, held that prolonged suspension is undesirable and as a consequence, if any suspension has not been reviewed on completion of ninety (90) days for continuation, the same would be vitiated.

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The aforesaid contention of the petitioners has been refuted by Mr. M. Nath, learned Standing Counsel, P & RD on the ground that as far as Ajay Kumar Choudhury (Supra) case is concerned, it is confined to the peculiar facts of the case and it cannot be said to have laid down any law of universal application, irrespective of the nature of suspension.

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It has been further submitted by the learned counsel for the State respondent that the Hon’ble Supreme Court in Union of India & Others Vs Rajiv Kumar and others, (2003) 6 SCC 516 held that the Court cannot read anything into the statutory provision or re-write the provision which is otherwise plain and unambiguous.

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Page No.# 7/43

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It has been submitted that Assam Services (Discipline and Appeal) Rules 1964 (hereinafter referred to as State Rules), have laid down the rules governing the period of suspension in very clear terms.

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It has been submitted that though Rule (6) of the Assam Rules does not specifically mention about the period of suspension, it has been explained in the Manual issued by the Department of Personnel, Govt. of Assam. It has been mentioned under Para no. 2.1.1 read with Para no. 2.1.8 of the Manual that where a suspension has been made in contemplation of a departmental enquiry, the charges should be served within a period of three (03) months, failing which the Government servant should be reinstated.

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It has been further provided that in event the same is not possible, the authority concerned should move the Personnel Department through the Administrative Department well before expiry of three (03) months by explaining the reasons with a letter detailing the nature of allegations and 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 permitted or not.

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Thus, the aforesaid executive instructions clearly lay down that under normal circumstances, suspension issued under Rule 6 (1) of the Rules should not be extended beyond three (03) months and if extension is necessary, the same must be done in consultation with the Personnel Department.

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However, no such time period nor requirement for consultation with the Personnel Department has been specifically provided in case of suspension arising out of detention in police custody under Rule 6 (2) of the Assam Rules.

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On the other hand, Para 2.2.2 of the Manual dealing with Rule 6 (2) merely states that a government servant who is detained in custody under any law or as a result of a proceeding either on a criminal charge or for his arrest for debt shall, if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be

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under suspension from the date of detention until further orders.

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It has been accordingly, submitted that as regards deemed suspension because of arrest under Rule 6 (2), there is no such limitation of time period for suspension or review, stipulated under the Manual.

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It has been submitted that it would be impermissible to read into the statute or rules, something which is not there, when the rules are clearly and unambiguous, as held in Rajiv Kumar (Supra).

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Mr. M. Nath, learned Standing Counsel, P & RD accordingly, has submitted that while the requirement of adhering to three (03) months period of suspension is contemplated in case of suspension made in contemplation of departmental enquiry under Rule 6 (1), such stipulation is not there when a suspension is deemed to have been issued in respect of person who has been arrested in connection with a criminal case under Rule 6(2).

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Mr. M. Nath, learned counsel for the P & RD has relied on the following decisions to buttress his submissions :

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(i) Union of India Vs. Rajiv Kumar, (2003) 6 SCC 516,

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(ii) U.P. Rajya Krishi Utpadan Madi Parishad & Sanjiv Rajan and Others, (1993) Supp (3) SCC 483,

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(iii) Allahabad Bank & Others Vs. Deepak Kr. Bhola, (1997) 4 SCC 1,

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(iv) Union of India Vs. Ashok Kr. Aggarwal, (2013) 16 SCC 147,

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(v) Sanabam Sorojini Devi Vs. The State of Manipur & Others, WP(C) No. 920/2015, MANU/MN/0080/2016,

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(vi) State of Assam Vs. Pranjal Borah (WA 259/2013), decided on 12.11.2018.

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It has been submitted by the learned counsel for the P & RD that CCS (CCA) Rules, 1965 before amendment in the year 2007 did not provide any time limit for the suspension or for review for extension of the suspension. The suspension was to continue until further order of the competent authority. The time period was fixed only after the amendment of CCS (CCA) Rules in 2007.

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It has been submitted that the present rules as applicable in the State of Assam, viz. Rule 6 (2) is the same as was provided in the pre amended CCS (CCA) Rules.

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Mr. M. Nath, learned standing counsel for the P & RD submits that the stipulation of three months time limit for the purpose of extension of period of suspension as provided in the Manual for Rule 6 (1) is not provided in respect of suspension under Rule 6 (2). There is no such time limit laid down in the Manual relating to Rule 6 (2). Therefore, failure to issue any order for extension of the suspension under Rule 6(2) after review cannot render continuation of the suspension illegal.

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Heard learned counsel for the parties and perused the materials on record.

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“Suspension” in Black’s Law Dictionary, Seventh Edition, has been defined as follows:

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“SUSPENSION. 1. The act of temporarily delaying, interrupting, or terminating something < suspension of business operations> < suspension of a statute>. 2. The state of such delay, interruption, or termination . 3. The temporary deprivation of a person's powers or privileges, esp. of office or profession . 4. The temporary withdrawal from employment, as distinguished from permanent severance 5. Eccles. law. An ecclesiastical censure that can be temporary or permanent, and partial or complete. See DEPRIVATION. 6. Scots law. The process of staying a judgment pending an appeal to the Supreme Court.”

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(emphasis added)

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Suspension in service jurisprudence means temporary deprivation of the duties, functions and duties of an employee, though he continues to remain in the service.

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The Supreme Court in Khem Chand v. Union of India, 1963 Supp (1) SCR 229 : AIR 1963 SC 687 observed that,

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“An order of suspension of a government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. …………………..The real effect of the order of suspension is that though he continued to be a member of the government service he was not permitted to work, and further, during the period of his suspension he was paid only some allowance — generally called “subsistence allowance” — which is normally less than his salary — instead of the pay and allowances he would

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have been entitled to if he had not been suspended. There is no doubt that the order of suspension affects a government servant injuriously.”

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The act of suspension, is because of the result of certain uncalled for acts committed by an employee. It is invoked when the employer contemplates or initiates a departmental enquiry against the employee on account of certain misconduct on the part of the employee or because of certain pending criminal case against him.

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Under Rule 10 of the CCS (CCA) Rules, 1965, a government servant can be placed under suspension where a disciplinary proceeding is contemplated or is pending or where in the opinion of the authority he is engaged in activities prejudicial to the interest of the security of the State or where a case against him in respect of any criminal offence is under investigation or has been arrested and detained more than 48 hours in connection with a criminal case.

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It may be observed that an employee can be placed under suspension as a mode of punishment also.

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Section 7 of the Police Act, 1861 provides that subject to the provisions of Article 311 of the Constitution, and to such rules as the State Government may from time to time make under the aforesaid Act, the Inspector-General, Deputy Inspector-General, Assistant Inspector-General and District Superintendents of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same.

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Clause 27 of the Standing Orders issued under the Industrial Disputes Act, 1957 provides for suspension of a worker as a mode of punishment if he is found to be guilty of misconduct, provided suspension without pay, whether as a punishment or pending enquiry, shall not exceed ten days.

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In R. P. Kapur v. Union of India, (1964) 5 SCR 431 : AIR 1964 SC 787, the Hon’ble Supreme Court held that,

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“ 10. ………….The General law on the subject of suspension has been laid down by this Court in two cases, namely, Management of Hotel Imperial New Delhi v. Hostel Workers’ Union2, and T. Cajee v. U. Jormanik Siem.3 These two cases lay down that it is well settled that under the ordinary law of master and servant the

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power to suspend the servant without pay could not be implied as a term in an ordinary contract of service between the master and the servant but must arise either from an express term in the contract itself or a statutory provision governing such contract. It was further held that an order of interim suspension could be passed against an employee while inquiry was pending into his conduct even though there was no specific provision to that effect in his terms of appointment or in the rules. But in such a case he would be entitled to his remuneration for the period of his interim suspension if there is no statute or rule existing under which it could be withheld.”

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(1960) 1 SCR 476

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(1961) 1 SCR 750

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The Hon’ble Supreme Court also held in L.K. Verma v. HMT Ltd., (2006) 2 SCC 269 that,

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17. Suspension is of three kinds. An order of suspension may be passed by way of punishment in terms of the conduct rules. An order of suspension can also be passed by the employer in exercise of its inherent power in the sense that it may not take any work from the delinquent officer but in that event, the entire salary is required to be paid. An order of suspension can also be passed, if such a provision exists in the rule laying down that in place of the full salary, the delinquent officer shall be paid only the subsistence allowance specified therein.

¶104

It is now thus, well settled that while an employee can be placed under suspension in contemplation of or during the pendency of a departmental enquiry or any criminal case, it can be also issued as a mode of punishment depending on the service rules.

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In the present cases we are not dealing with suspension of an employee as a punishment. In the present cases, the suspensions have been made either on the ground of contemplation of a departmental proceeding or during the pendency of a criminal proceeding and after the petitioners were arrested and detained in criminal cases beyond 48 hours. The common denomination which runs through these petitions is that neither the enquiry in respect of disciplinary proceedings nor the criminal trial has started. It is in this background that the present petitions have been filed.

¶106

One of the purposes for placing an employee under suspension during the pendency of a departmental proceeding or a criminal case is to ensure smooth disposal of the proceedings initiated against him. [See P.L. Shah v. Union of India, (1989) 1 SCC 546 ].

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Page No.# 12/43

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The usual ground for suspension pending a criminal proceeding is that the charge is connected with his position as a government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude. [See R.P. Kapur v. Union of India, (1964) 5 SCR 431 : AIR 1964 SC 787 ]

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It is also to ensure that the delinquent employee may not gain custody or control of papers or take any advantage of his position. It was observed by the Hon’ble Supreme Court in Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147 that,

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“ 27. Suspension is a device to keep the delinquent out of the mischief range. The purpose is to complete the proceedings unhindered. Suspension is an interim measure in the aid of disciplinary proceedings so that the delinquent may not gain custody or control of papers or take any advantage of his position. …………………..”

¶111

Even though suspension, in contemplation of a departmental enquiry or during the pendency of enquiry or trial is not considered to be a punishment, there is overwhelming view of various High Courts and also of the Apex Court that suspension should not be continued for an unreasonably long period because of the disadvantageous position to which a suspended employee is placed.

¶112

Even when suspension may not be by way of punishment as in the present case, it can be stigmatic.

¶113

Order of suspension issued in contemplation of or during a disciplinary proceeding or criminal proceeding, though does not amount to punishment, because of the very nature of the action, puts a mark on the functioning of an employee, in the sense that he is prevented from discharging his normal duties and functions and he does not enjoy his full entitlements in terms of salary, allowances and also stakes. To that extent, it has the attributes of a stigmatic action. Stigma as per Oxford Dictionary, means “a mark of disgrace associated with a particular circumstance, quality, or person ”

¶114

[https://en.oxforddictionaries.com/definition/stigma]. In the eyes of the public, an employee who has been suspended is looked down upon, as opposed to an employee who normally discharges his duties. There is some element of negativity attached to an employee who is placed under suspension.

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Page No.# 13/43

¶116

It is because of the deleterious and injurious effect it may have on the delinquent employee with attributes of stigma attached to suspension that the Supreme Court cautioned in Union of India v. Ashok Kumar Aggarwal, (2013) 16 SCC 147 that the order of suspension should be passed very carefully after taking into consideration all the relevant factors and not in a mechanical and routine manner and by keeping into account the gravity of the misconduct. It was observed as follows:

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“ 19. During suspension, the relationship of master and servant continues between the employer and the employee. However, the employee is forbidden to perform his official duties. Thus, a suspension order does not put an end to the service. Suspension means the action of debarring for the time being from a function or privilege or temporary deprivation of working in the office. In certain cases, suspension may cause stigma even after exoneration in the departmental proceedings or acquittal by the criminal court, but it cannot be treated as a punishment even by any stretch of imagination in the strict legal sense. (Vide O.P. Gupta v. Union of India13 and Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.14) 20. In State of Orissa v. Bimal Kumar Mohanty15 this Court observed as under: (SCC p. 133, para 13)

¶118

“13. … the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by the disciplinary authority. Appointing authority or disciplinary authority should consider … and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee. The court or the Tribunal must consider each case on its own facts and no general law could be laid down in that behalf. … In other words it is to refrain him to avail further opportunity to perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and the offending employee could get away even pending inquiry without any impediment or to provide an opportunity to the delinquent officer to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had an opportunity in office to impede the progress of the investigation or inquiry, etc. … It would be another thing if the action is actuated by mala fides, arbitrarily or for ulterior purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind public interest of the impact of the delinquent’s continuance in office while facing departmental inquiry or trial of a criminal charge.”

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Page No.# 14/43

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(1987) 4 SCC 328 : 1987 SCC (L&S) 400: (1987) 5 ATC 14: AIR 1987 SC 2257

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(1999) 3 SCC 679 : 1999 SCC (L&S) 810 : AIR 1999 SC 1416

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(1999) 3 SCC 126 : 1994 SCC (L&S) 875 : (1994) 27 ATC 530

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(emphasis added)

¶124

21. The power of suspension should not be exercised in an arbitrary manner and without any reasonable ground or as vindictive misuse of power. Suspension should be made only in a case where there is a strong prima facie case against the delinquent employee and the allegations involving moral turpitude, grave misconduct or indiscipline or refusal to carry out the orders of superior authority are there, or there is a strong prima facie case against him, if proved, would ordinarily result in reduction in rank, removal or dismissal from service. The authority should also take into account all the available material as to whether in a given case, it is advisable to allow the delinquent to continue to perform his duties in the office or his retention in office is likely to hamper or frustrate the inquiry.

¶125

22. In view of the above, the law on the issue can be summarised to the effect that suspension order can be passed by the competent authority considering the gravity of the alleged misconduct i.e. serious act of omission or commission and the nature of evidence available. It cannot be actuated by mala fide, arbitrariness, or for ulterior purpose. Effect on public interest due to the employee’s continuation in office is also a relevant and determining factor. The facts of each case have to be taken into consideration as no formula of universal application can be laid down in this regard. However, suspension order should be passed only where there is a strong prima facie case against the delinquent, and if the charges stand proved, would ordinarily warrant imposition of major punishment i.e. removal or dismissal from service, or reduction in rank, etc.

¶126

In the aforesaid case of Ashok Kumar Aggarwal, (supra), the Supreme Court also noted that suspension, because of the attending circumstances can be stigmatic, in the following words,

¶127

“ 29. ……………………………..However, as the suspension order constitutes a great hardship to the person concerned as it leads to reduction in emoluments, adversely affects his prospects of promotion and also carried a stigma, an order of suspension should not be made in a perfunctory or in a routine and casual manner but with due care and caution after taking all factors into account.”

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Page No.# 15/43

¶129

1. It was also observed in O.P. Gupta v. Union of India, (1987) 4 SCC 328, that,

¶130

“…….It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration………………………………………………………………………There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a government servant injuriously.”

¶131

Keeping aforesaid aspects pertaining to suspension in mind, we will proceed to examine the issues raised in these petitions.

¶132

As stated above, the petitioner in W.P.(C) no. 6842/2018 who was detained in police custody in connection with an FIR case was placed under suspension by invoking Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964.

¶133

The petitioner in W.P.(C) no. 8695/2018 was placed under suspension without referring to any provision of the Rules, pending drawal of departmental proceeding or criminal proceeding or both by the competent authority. It may however, be noted that the petitioner was also arrested in connection with an FIR case on 10.9.2018 and thereafter, he was placed under suspension.

¶134

The petitioner in W.P.(C) no. 711/2019 who was detained in police custody in connection with an FIR case was placed under suspension by invoking Rule 6(2) 2.2.1 of the Assam Services (Discipline and Appeal) Rules, 1964.

¶135

Thus, it is evident that the petitioners were placed under suspension after they were arrested in connection with some FIR cases. Though it has not been specifically mentioned in the suspension order of the petitioner in W.P.(C) no. 8695/2018, all petitioners were placed under suspension by invoking the provisions of Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964.

¶136

The relevant statutory provisions/rules under which the petitioners in these petitions have been placed under suspension may be referred to.

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Page No.# 16/43

¶138

Relevant portions of Rule 6 of the Assam Services (Discipline and Appeal) Rules, 1964 read as follows:

¶139

“6. Suspension – (1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Governor in that behalf may place a Government servant under suspension –

¶140

(a) where a disciplinary proceeding against him is contemplated or is pending; or

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(b) where in the opinion of the authority aforesaid he has engaged himself in activities prejudicial to the interest of the security of the State; or

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Provided that where the order of suspension is made by an authority lower than the Appointing Authority such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made.

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(2) A Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of such detention, by an order of the Appointing authority and shall remain under suspension until further orders: Provided that where the detention is made on account of any charge not connected with his position as a Government servant or continuance in office 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.

¶145

(3) ………………………………….

¶146

(4) ………………………………….

¶147

(5) An order of suspension made or deemed to have been made under this rule may at any time be revoked by the Authority which made or is deemed to have made the order or by any Authority to which that Authority is subordinate.”

¶148

The Department of Personnel, Government of Assam prepared a manual, known as “Manual of Departmental Proceedings” (hereinafter referred to as the Manual) and published on 18.8.1981 by laying guidelines/details to effectuate the aforesaid Assam Services (Discipline and Appeal) Rules, 1964. The provisions of this Manual, to the extent it supplements the Disciplinary Rules of 1964 and not inconsistent with the Rules, will have also binding effect, though it may not have the force of law. [ See 1) Union of India & Ors. Vs. Rakesh Kumar (2001) 4 SCC 309, 2) Joint Action Committee of Airlines Pilot Association of India Vs. DG of Civil Aviation, (2011) 5 SCC 435]

¶149

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¶150

It may be also observed that, unlike in the case of the CCS (CCA) Rules, 1965, as provided under Sub-rule 6 of Rule 10 thereof, the Assam Services (Discipline and Appeal) Rules, 1964 do not provide for revocation of suspension on the recommendation of a Review Committee to be made before expiry of ninety days of the effective date of suspension.

¶151

It may be apposite to refer to the relevant portions of Rule 10 of the CCS (CCA) Rules, 1965, which read as follows.

¶152

“10. Suspension:

¶153

(1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension-

¶154

(a) where a disciplinary proceeding against him is contemplated or is pending; or

¶155

(aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or

¶156

(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

¶157

Provided that………………… ………… … … … … … … … … … … … … … …

¶158

(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority -

¶159

(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;

¶160

(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

¶161

EXPLANATION - The period of forty-eight hours referred to in clause (b) of this subrule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.

¶162

(3) ……………………….

¶163

(4) ……………………. …

¶164

(5) (a) ……………………….

¶165

(b) …………………………

¶166

¶167

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¶168

(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which is competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.

¶169

(7) An order of suspension made or deemed to have been made under subrule (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days.

¶170

Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under detention at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later.”

¶171

It may also be noted that the aforesaid requirement for review of the suspension before expiry of ninety days of suspension as provided under Sub- rule 6 was inserted in 2007. So is the provision under Sub-rule 7 that an order of suspension made/deemed under Sub-rule (1) or (2) of Rule 10 of the CCS (CCA) Rule, 1965 shall not be valid after ninety days if not extended after review under Sub-rule 6.

¶172

These amendments were made in 2007 considering the consistent judicial observations that prolonged suspension without review may be liable to be rendered illegal.

¶173

In view of the specific provisions under Sub-rules 6 and 7, suspensions made under Sub-rules 1 and 2 of Rule 10 of CCS (CCA) Rule will be rendered illegal on expiry of ninety days, if not reviewed before expiry of ninety days and to that extent, it is doubtful if any such judicial decision holding that prolonged suspension may not render such suspension illegal will be applicable in case of suspensions made under CCS (CCA) Rules, 1965.

¶174

In any event, since we are not dealing with suspension passed under CCS (CCA), Rule, 1965, decisions based on the aforesaid CCS (CCA) Rules may not be strictly applicable except for applying the principles laid down therein.

¶175

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¶176

In the present cases, since we are concerned with the suspension under Assam Services (Discipline and Appeal) Rules, 1964, we will examine the issues with reference to the specific provisions under the aforesaid Rules and principles that can be culled from various judicial pronouncements.

¶177

As quoted and observed above, Rule 6 of the Assam Services (Discipline and Appeal) Rules, 1964 does not provide for any review of a suspension order within three months/ninety days of the suspension order, nor there is any specific provision that on expiry of three months/ninety days, if not reviewed, such suspension order will not be valid, except for providing under Rule 6(5) that an order of suspension made or deemed to have been made may at any time be revoked by the Authority which made the order or is deemed to have made by any Authority to which that Authority is subordinate.

¶178

What Sub-rule 5 of Rule 6 of the Assam Rules provides is that the Authority may at any time revoke the suspension. There are however, no guidelines nor time frame provided under the aforesaid Assam Rules as in the case of CCS (CCA) Rules as to when a suspension order can be revoked.

¶179

It is in this context the Manual framed by the State Government becomes relevant. If the Manual provides any relevant provisions, these may be invoked as the Manual would supplement the principal rules under Assam Services (Discipline and Appeal) Rules, 1964. Wherever the principal Rules are silent, the Manual can fill up the gaps which will have binding effect so long as these are not inconsistent with the Principal Rules.

¶180

If one refers to Chapter II of the aforesaid Manual, one can see that it deals exhaustively with matters relating to suspension.

¶181

Para 2.1.1 to Para 2.1.8 of the Manual pertains to Rule 6 (1) of the Assam Rules. It has been mentioned that suspension pending a department enquiry is only an administrative measure and is not a punishment and that public interest should be the guiding factor and the disciplinary authority should not suspend a government servant lightly and without sufficient justification and the authority should exercise discretion with utmost care. [Paras 2.1.2 and 2.1.3 of the Manual]

¶182

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¶183

It has been also provided under Para 2.1.4 of the Manual that although suspension is not a punishment by itself, it cannot be denied at the same time that in such cases the officers placed under suspension suffers a lot. Apart from it, the suspension of a government servant is a liability to the Government. The purpose of placing a government servant under suspension is not to inflict punishment but to safeguard against further loss to Government, manipulation of records, intimation of witnesses or embarrassment to Government in the public eye where moral turpitude is involved. It was accordingly, impressed upon that the period of suspension should be reduced to the barest minimum and therefore, it is necessary to conclude the proceedings drawn up as quickly as possible and in any case if it is not possible to do so due to reasons beyond control, the persons proceeded against may be allowed to resume their duties, whereever possible in places away from their former places of duty by vacating the suspension order as to save the Government expenditure in the event of his acquittal.

¶184

Para 2.1.5 further enunciates the general principles to be kept in mind while placing an employee under suspension as referred to under Paras 2.1.6, 2.1.7 and 2.1.8 of the Manual.

¶185

The aforesaid paragraphs, being very relevant are reproduced herein below:

¶186

“2.1.1. The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Governor in that behalf may place a Government Servant under suspension

¶187

(a) where a disciplinary proceeding against him is contemplated or is pending; or

¶188

(b) where a case against him in respect of any criminal offence involving moral turpitude is under investigation or trial :

¶189

Provided that where the order of suspension is made by an authority lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made.

¶190

2.1.2. Suspension can be ordered by the competent authority pending a departmental enquiry into alleged misconduct. Suspension of this kind is only an administrative measure and not a punishment.

¶191

2.1.3. Public interest should be the guiding factor in deciding to place Government Servant under suspension. The Disciplinary Authorities should not suspend a Government Servant lightly and without sufficient justification. They should exercise

¶192

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¶193

their discretion with utmost care.

¶194

2.1.4. Although suspension is not a punishment by itself, it cannot be denied at the same time that in such cases the officers placed under suspension suffer a lot. Apart from this, suspension of a Government Servant is a liability on the part of the Government. The idea behind placing an officer under suspension is not to inflict punishment, which can be done only when the charges are proved, but to safeguard against further loss to Government, manipulation of records, intimidation of witnesses or embarrassment to Government in the public eye, as in the case, where moral turpitude is involved. In all cases of suspension the elementary justice demands that the period of suspension should be reduced to the barest minimum. It is, therefore, necessary to conclude proceedings drawn up as quickly as possible and in any case if it is not possible to do so due to reasons beyond control, the persons proceeded against may be allowed to resume their duties, where possible in places away from their former place of duty, vacating the suspension order so as to save Government expenditure in the event of his acquittal.

¶195

2.1.5. By way of clarification, of the general principle enunciated above, the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government Servant under suspension. These are only intended for guidance and should not be taken as mandatory.

¶196

(i) cases where continuance in office of a Government Servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering of documents and intimidation of witnesses);

¶197

(ii) where the continuance in office of a Government Servant is likely to seriously subvert discipline in the office in which the Government servant is working;

¶198

(iii) where the continuance in office of a Government servant will be against the wider public interest (other than the cases covered by (i) and (i) above) such as there is a public scandal against him and it is necessary to place the Government Servant under suspension to demonstrate the policy of Government to deal strictly with officers involved in such scandals, particularly corruption;

¶199

(iv) where allegations have been made against a Government servant and the preliminary enquiry has revealed that a prima facie case is made out which would justify his prosecution or his being proceeded against in departmental proceedings and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.

¶200

2.1.6. In the first three circumstances enumerated above, the Disciplinary Authority may exercise his discretion to place a Government Servant under suspension even when the case is under investigation and before a prima facie case has been

¶201

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¶202

established.

¶203

2.1.7. Certain types of misdemeanour where suspension may be desirable in the circumstances mentioned above are indicated below—

¶204

(i) any offence or conduct involving moral turpitude;

¶205

(ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;

¶206

(iii) serious negligence and dereliction of duty resulting in considerable loss to Government;

¶207

(iv) desertion of duty, and

¶208

(v) refusal or deliberate failure to carry out written orders of superior officers.

¶209

In respect of types of misdemeanour specified in sub-clause (iii), (iv) and (v) discretion has to be exercised with care.

¶210

2.1.8. The following principles and procedure with regard to suspension need strict compliance-

¶211

(i) suspension should be resorted to only in cases where a major punishment is likely to be imposed if the charges are proved;

¶212

(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

¶213

(iii) in cases where it is not reasonably practicable to prepare the charges for service within three months from the date 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 permitted or not.

¶214

Where the services of a Government servant are lent to the Central Government, any other State Government or to local or other Authority, the Borrowing Authority will have the powers of the Appointing Authority for the purpose of placing the officer under suspension and of the Disciplinary Authority for the purpose of initiating a disciplinary proceeding against him subject to the provisions of the Assam Services

¶215

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¶216

(Discipline and Appeal) Rules, 1964.”

¶217

Para 2.1.8 is the most relevant for our purpose, for it is there that the State Government brings in the elements of duration of suspension and for review as in the case of Rule 10 of the CCS (CCA) Rules, 1965.

¶218

Coming to suspension deemed to be issued under Rule 6(2) of the Assam Services (Disciplinary and Appeal) Rules, 1964, the same are dealt under Paras 2.2.1 to 2.2.7 of the Manual referred to above, but these do not mention about any time limit to the deemed suspension and also for holding review.

¶219

Under Para 2.2.2 it has been provided that suspension made under Rule 6(2) shall remain until further orders, which reads as follows:

¶220

“2.2.2. A government servant who is detained in custody under any law proving of preventive detention or as a result of a proceeding either on a criminal charge or for his arrest for debt shall, of the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension from the date of detention until further order.”

¶221

(emphasis added)

¶222

It is thus seen from above that though the Manual has elaborately and exhaustively dealt with the suspension made under Rule 6 (1) of Assam Services (Disciplinary and Appeal) Rules, 1964, in contemplation of a departmental enquiry or for engaging in activities prejudicial to the interest of the security of State or where a case against him in respect of any criminal offence is under investigation, inquiry or trial, the Manual has been rather silent on the deemed suspension order under Rule 6(2) as regards the duration of the suspension and requirement of review.

¶223

In fact, it is the absence of elaboration in the Manual relating to Rule 6 (2) of the Assam Services (Disciplinary and Appeal) Rules, 1964, that the Standing Counsel for the Panchayat and Rural Development Department, Sri M. Nath has harped on to contend that it is only in respect of suspension made under Rule 6 (1), which would require review by the Administrative Department with the advice of the Personnel Department within three months from the date of suspension during which time the charges and statement of allegations should be served, failing which the government employee should be reinstated. According to

¶224

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¶225

Sri M. Nath, Learned Standing Counsel, such provisions not being provided in respect of deemed suspension under Rule 6 (2) of the Rules, suspension under Rule 6 (2) beyond three months cannot be held to be illegal. According to him, suspension can continue till the Authority revokes it as provided under Rule 6 (2) read with Para no. 2.2.2. referred to above.

¶226

This Court having considered the relevant provisions of the rules and materials on record and judicial pronouncements referred to above, and after hearing the parties however, is unable to be persuaded to accept the plea of the State Government/Department that as the rules do not specifically provide for furnishing charges/statement of allegations within three months and also for undertaking any exercise of review within three months in the event of failure to provide the same to the Government employee, continuation of deemed suspension made under Rule 6(2) beyond three months would not be illegal.

¶227

As far as suspension is concerned, there is no uniform set of rules applicable for all classes of employees. Different services under the States and the Union have their respective service rules which provide for different regulations. So is the case with suspension. However, through a long line of judicial decisions, certain principles have evolved as discussed above in the preceding paragraphs.

¶228

There is, however, almost unanimity in judicial decisions that, though suspension made in contemplation of or during enquiry/trial may not be punishment, it should be invoked very carefully by weighing all the relevant factors and only in very serious cases of misconduct or offences which would normally result in dismissal, removal and termination from service and that suspension should not be unduly prolonged.

¶229

Of course, there seems to be no unanimity as regards the effect of prolonged suspension. It also depends on the particular service rules governing the field. For example, in case of suspension under Rule 10 of the CCS (CCS) Rules, 1964, Sub-rule 7 has specifically provided that an order of suspension made or deemed to have been made under Sub-rule (1) or (2) of Rule 10 shall not be valid after a period of ninety days unless it is extended after review. In such a situation, any suspension covered by Sub-rule 7 may be liable to be set aside after ninety days.

¶230

Page No.# 25/43

¶231

The issue is what is to be done where the rules do not specifically provide for the same, as in the present case.

¶232

As observed above, if the suspension order was issued under Rule 6(1) of the Assam Services (Disciplinary and Appeal) Rules, 1964, there would not be much difficulty. Rule 6 (1) read with the Manual would make it clear that if the charges/statement of allegations are not furnished to the Government employee within three months, the employee would be entitled to be reinstated in service, provided that where these are not so furnished within three months, the suspension can be extended by holding a review and with the advice of the Department of Personnel.

¶233

In the present case, the issue relates to suspension orders deemed to be issued under Rule 6(2) of the Assam Services (Disciplinary and Appeal) Rules, 1964. Admittedly, the Rule 6(2) as well as the Manual are silent on this issue. It is because of this reason that the State/Department has contended that suspension under Rule 6(2) beyond three months without furnishing the charges and without advice of the Department of Personnel does not necessarily render such suspension bad in law.

¶234

This Court however, is unable to accept this plea for the reasons discussed herein below.

¶235

Though suspension of a government employee can be made either under Rule 6(1) or Rule 6(2) of the Assam Services (Disciplinary and Appeal) Rules, 1964, there is virtually no difference between the two situations, except for the immediate cause triggering the suspension.

¶236

In one case, under Rule 6 (1), it is made on the basis of certain complaint against the government employee because of which the Authority contemplates to hold a departmental enquiry or when the employee is found to be engaged in activities prejudicial to the interest or security of the State, (which obviously would necessitate holding a departmental enquiry) or where a case against him of any criminal offence is under

¶237

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¶238

investigation, inquiry or trial.

¶239

On the other hand, Rule 6(2) is automatically invoked when the Government employee is arrested and detained in custody beyond forty eight hours. By operation of law, such a detained employee is deemed to have been placed under suspension from the date of detention. Because of this deeming provision, even formal order of suspension need not be issued. [See: Union of India Vs. Rajiv Kumar (2003) 6 SCC 516]

¶240

Thus, the difference is the circumstance immediately obtaining before an employee is placed under suspension. Rule 6(2) comes into play when the employee has been arrested and detained in custody for more than 48 hrs.

¶241

Apart from the difference in the immediate cause or circumstance, leading to the suspension, otherwise, once the suspension order has been issued/deemed to have been issued, there is no more difference as regards the effects, consequences, liabilities as far as the suspended employees are concerned.

¶242

An employee placed under suspension under Rule 6 (2) is not placed under a graver or stricter legal regime. He is subjected to the same liabilities and obligations as any other employee suspended under Rule 6(1). In fact he enjoys the same rights. He will get similar subsistence allowances and will be subjected to the same restrictions. The only difference may be manner in which the suspended employee will be proceeded. In the case of the employee suspended under Rule 6(2), he will be subjected to the normal criminal process. In addition, he may have to face departmental proceeding also. However, an employee suspended under Rule 6(1) will be proceeded departmentally. He may however, be also liable to be proceeded under the criminal process, if he has been suspended under Sub-rule 1(c) of Rule 6.

¶243

Therefore, in the post suspension period, employees suspended under Rule 6(1) or Rule 6(2) cannot be compartmentalized, and categorized separately and dealt with differently, as if these two categories are different and mutually incompatible. In fact, in the post suspension period, there is no substantial difference between those two categories. Difference is only in the pre-suspension period i.e. the reason for placing the employee under suspension.

¶244

Page No.# 27/43

¶245

This difference in placing an employee under suspension is merely in the methodology and semantic and not in substance, for the intention and purpose for placing an employee under suspension under Rule 6(1) and Rule 6(2) are the same.

¶246

In the first case under Rule 6(1), an employee is placed by the Authority by a conscious act of the Authority upon receipt or becoming aware of certain misconduct which warrants disciplinary proceeding.

¶247

In the second situation, the Authority itself may not be aware of the misconduct but gets invoked by operation of law automatically after being arrested and detained in connection with any criminal case beyond 48 hrs. In such a situation, Rule 6(2) gets activated by itself, by way of a legal fiction and he shall be deemed to have been placed under suspension from the time of arrest and detention provided it is more than 48 hours, even if the Authority does not become aware of the arrest and detention. Because of this it has been held that even in absence of any formal order to this effect, a person will be deemed to be suspended once he has been arrested and detained beyond 48 hrs. This deeming and enabling provision for suspension has been provided, for the law presumes that if an employee gets arrested and is detained beyond 48 hours, the matter warrants serious consideration by the Authority by keeping him away from active duty, as in the manner a person is placed under Rule 6(1). The presumption is that an accused person has to be invariably produced within 24 hours of his detention before a Magistrate and if he is not released on the first production, there is every possibility that there are some incriminating material against him

¶248

Under Rule 6 (1), the Authority considers that the misconduct alleged is serious enough which warrants proceeding against him departmentally for punishment and accordingly, places him under suspension to ensure smooth holding of departmental enquiry and for effectuating the purposes mentioned under Para 2.1.2 to Para 2.1.7 of the Manual.

¶249

Under Rule 6(2), the law gets activated without the initiative of the Authority and the deeming provision comes into play once an employee is arrested and detained more than 48 hrs in connection with any criminal case. Law contemplates that such a person should be also placed under suspension to achieve the same purpose as contemplated under Para 2.1.4,

¶250

Page No.# 28/43

¶251

2.1.5, 2.1.6 and 2.1.7 of the Manual. Law presumes applicability of these situations contemplated under the aforesaid paragraphs of the Manual even for deemed suspension under Rule 6 (2).

¶252

It may be also noted that an employee can be placed under suspension under Rule 6 (1) (c) if any criminal case is pending against him or is under criminal investigation, even if he is not arrested.

¶253

Rule 6 (2) will come into play only when he is arrested and detained beyond 48 hrs. in connection with the criminal case.

¶254

There may be also a situation, where an employee may be arrested and detained but released on bail before completing 48 hrs. In such a situation, Rule 6 (2) will not come into play for suspending the employees. Yet, nothing prevents the Authority to invoke Rule 6 (1) (c) to suspend the employee and the Authority can certainly suspend the employee under Rule 6 (1) (c).

¶255

Therefore, from the above, it is clearly evident that Rule 6 (2) is not exclusively meant for those employees who get involved in criminal case. Rule 6 (1) (c) also deals with those employees who get involved in criminal cases. To that extent, there is a common denominator which is present in both Rule 6 (2) and 6 (1) (c), i.e. involvement in criminal cases.

¶256

It may be observed that the deeming provision for suspension under Rule 6(2) has been made as the rule making authority considered that arrest of an employee in any criminal case for more than 48 hours is a serious matter which warrants serious actions from the Authority by providing for automatic suspension in such a situation.

¶257

It may be also noted that merely because an employee is arrested and detained more than 48 hours does not ipso facto lead to the inference that the employee is guilty of the offences. There may or may not be prima facie case against him but may be arrested and detained more than 48 hours on mere suspicion and his involvement. It may be also noted under criminal jurisprudence till charge sheet is filed, it cannot be also presumed that there is a prima facie case against an accused. However, irrespective of the nature of charges, continuation of suspension of a person who had been arrested and detained would be guided

¶258

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¶259

by similar considerations as enumerated in Para 2.1.4 to 2.1.8 of the Manual.

¶260

Otherwise, there is no difference in substance of the suspensions made under Rule 6(1) or Rule (2).

¶261

If there is no difference between the suspensions effected under Rule 6(1) and under Rule 6(2), and also if there is no difference in the service conditions in the post suspension period as regards their liabilities and rights, there is no cogent reason why different standards would apply and why similar principles should not govern the continuation of suspension in these two situations, unless the Rules provide otherwise. The Assam Services (Disciplinary and Appeal) Rules, 1964 do not specifically provide for different treatment for these two categories of suspended employees, one under Rule 6(1) and other under Rule 6(2), except that the Manual is silent on the duration and the requirement of review of the suspension.

¶262

It may, however, be noted that the Manual cannot govern the substantive provisions of the principal Rules and if it is inconsistent with the principal Rules, will be invalid to that extent. Therefore, the silence of the Manual as regards suspension under Rule 6 (2) may not be decisive, considering the conclusion arrived at by this Court that there is no substantive difference between the suspensions made under Rule 6 (1) and Rule 6 (2) except for the immediate cause for suspension. In view of the above, in respect of suspensions issued under Rule 6 (1) or deemed to have issued under Rule 6 (2), similar principles and yardsticks ought to apply while dealing with the issue of continuation of the suspension.

¶263

Apart from the silence in the Manual about Rule 6(2) regarding the duration of the suspension and requirement of review, as discussed above, the Rules are also silent about any differentiation in the scope, effect, consequences of the suspensions under these two Sub-rules.

¶264

The differentiation sought to be introduced by the Department is also without any basis and it could lead to very iniquitous results which cannot be countenanced under the law.

¶265

As contended by the Department, suspension order under Rule 6(1) is liable to be

¶266

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¶267

invalidated after three months if charges are not filed by then and if no review also held. Thus the employee would be entitled to be reinstated in service.

¶268

As mentioned above, Rule 6(1) does not deal only with situations arising out of contemplated departmental enquiry but also with cases where there is already a criminal investigation going on or trial going on [vide Rule 6(1)(c)]. In such case of suspension under Rule 6(1) (c), if the charge sheet is not filed before the competent Court, within three months and if no review is held, the employee would be entitled to be reinstated as per the Manual.

¶269

However, in respect of suspension under Rule 6(2) where the suspension is also in connection with some criminal case pending, if charge is not filed within three months, yet he cannot get the benefit of reinstatement because he was detained more than 48 hrs, if the contention of the State/Department is to be accepted. Can the employees suspended under Rule 6 (1) be placed in a higher pedestal than those suspended under Rule 6 (2)? This Court is of the opinion that it cannot be.

¶270

This Court is of the view the immediate cause for placing an employee under suspension will not have any relevance about the continuation of the suspension. The continuation of suspension has to be based on factors and considerations as contemplated under Para 2.1.4 to Para 2.1.8 of the Manual quoted above. The immediate circumstance of his being arrested and detained for more than 48 hrs. would not have much relevance to decide on the continuation of the suspension, as the involvement of the employee would depend upon the material gathered against him showing prima facie involvement in the offence/crime and other factors mentioned in Para 2.1.4 to Para 2.1.8 of the Manual and not his arrest

¶271

Therefore, making the factum of arrest and detention for more than 48 hours to be the determinative factor to decide whether suspension has to be continued or not, does not appeal to reason and seems to be arbitrary.

¶272

Therefore, the natural question that would arise is, whether it would be permissible to classify two categories of suspended employees, one under Rule 6(1) and another under Rule 6(2)? Can this classification made by the States pass the test of permissible classification so as to avoid the reprobation of equality clause of Article 14?

¶273

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¶274

It is now well settled that in order to pass the said test, two conditions must be fulfilled, namely,

¶275

Firstly, that the classification must be founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and

¶276

Secondly, that the differentia must have a rational relation or nexus to the object sought to be achieved by the statute in question.

¶277

This Court will now proceed to examine this differentiation from this angle. As the State/Department would have it, those suspended under Rule 6(1) and Rule 6(2) form two different groups. In one case, for those who are suspended under Rule 6(1), memorandum of charges is to furnished within three months, failing which the employee has to be reinstated to service and if the suspension is to be extended beyond three months, review will be necessary and only on relevant considerations and factors as indicated in the Manual, and not only because of the reason leading to suspension. These requirements, however, will not be applicable to those suspended under Rule 6(2), because the Manual does not provide so, if the contention of the State is to be accepted.

¶278

But can this differentiation pass the aforesaid twin test to overcome the mandate of Article 14?

¶279

As will be seen, as regards the first test, the State contend that the classification is based on the immediate circumstance leading to the suspension.

¶280

The classification can be traced to the Rules, which have been incorporated to meet the two situations. One, when an employee is arrested and detained beyond 48 hours in a criminal case, who shall be deemed to have been suspended from the date of detention. The intent of the rule making authority is that a person who has been detained in connection with any criminal case needs to be dealt with seriously and firmly, for which he needs to be proceeded, for which he would be liable to be suspended and accordingly, a deeming provision has been incorporated providing that such an employee shall be deemed to be suspended. The presumption is that no one would be arrested and detained for more than 48 hours, unless there are some prima facie case against him. However, the object of the statute

¶281

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of placing such person under suspension having achieved, there is no other purpose sought to be achieved except that such person should face the law, either through the normal criminal process or departmental proceeding.

¶283

The purpose of placing an employee under suspension under Rule 6(1) is also same. Such an employee, against whom there are credible information of having committed serious misconduct or offence, is liable to be proceeded against departmentally for which such an employee needs to be placed under suspension.

¶284

Therefore, the purpose and intent of the authorities for placing an employee under suspension under both the Rules are same, except for the immediate circumstance under which the suspension is affected as discussed earlier. As also discussed above, there are otherwise no distinguishing attributes between these two categories of suspended employees.

¶285

The intent and purpose of the law to keep such persons under suspension covered under both the Rules 6(1) and 6(2), is to ensure smooth conduct of the enquiry or trial for the alleged misconduct or criminal acts, as the case may be, and for achieving the purposes enumerated under Paras 2.1.4 to 2.1.8 of the Manual quoted above.

¶286

However, this Court is not able to fathom any reasonable relation to the object of the statute with the classification and for treating these two groups differently. There is no rational basis for the classification of these suspended employees and for giving different treatment vis-à-vis the purpose of suspending them and continuing the suspension. It cannot be said that those who are arrested and detained more than 48 hours will be considered to have committed a more serious or heinous crime which would obviate any requirement for review or placing time limit on the duration of suspension. An employee may have committed a very serious act of financial misappropriation also, but not arrested, and suspended under Rule 6 (1), which will not make such misconduct less serious merely because he was not arrested.

¶287

This Court also observes that the Rules under the Assam Rules have not provided any different regime to deal with those who have been arrested and detained and are deemed to have placed under suspension. The Rules have provided similar provisions for

¶288

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¶289

proceeding either under departmental proceedings or criminal trial in respect of both the categories of suspended employees. After they are suspended, they are subject to similar liabilities and hence, providing different treatment for the purpose of extension of the period of suspension for these two categories, one favourable to the other, is plainly discriminatory. It cannot be said that the intent of law for putting a time limit on the duration of suspension and requiring furnishing of memorandum of charges within three months and for holding a review if the authority wishes to continue the suspension beyond three months for those suspended under Rule 6(1) cannot be said to be irrelevant for those who had been deemed to have suspended under Rule 6(2).

¶290

It may be noted that CCS (CCA) Rules, 1965 have not made any distinction between these two categories of suspensions and provide for review of the suspension irrespective of whether the suspension was issued under Rule 10(2) in contemplation of any disciplinary proceeding or deemed to be suspended under Rule 6(2). Sub-rule (6) of Rule 10 of CCS (CCA) Rules provides that an order of suspension made or deemed to have been made under Rule 10 shall be reviewed by the authority which is competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Similarly, it has been provided under Sub-rule 7 of Rule 10 of the CCS (CCA) Rules that an order of suspension made or deemed to have been made under Sub-rule (1) or (2) of Rule 10 shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days.

¶291

In view of the above, this Court holds that the aforesaid classification sought to be introduced by the State/Departments has no reasonable nexus with the purpose or intent of the Rules, and tested on the anvil of Article 14, fails to satisfy the test of reasonable classification. Accordingly, this Court holds that such classification it is violative of the mandate of Article 14 of the Constitutions and hence, illegal and impermissible.

¶292

It may be also noted that merely because a person is deemed to be suspended under Rule 6(2), the Rules do not prevent initiating departmental proceedings against the employee relating to the same charges. If the Authority decides to initiate department

¶293

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¶294

enquiry also and furnishes the statement of allegations against the employee after three months, will the Authority be relieved of the obligation to undertake a review as to whether the suspension should be continued or not?. If the contention of the Department is to be accepted, in respect of suspension under Rule 6(2) the Department will not be under any obligation to undertake the said exercise even if it decides to hold a parallel domestic enquiry, merely on the ground that the employee was deemed to be under suspension under Rule 6(2).

¶295

Thus, this contention of the Department is fraught with inconsistencies and incongruities apart from being patently discriminatory.

¶296

This contention of the Department does not appeal to this Court for another reason. It cannot be said that the suspension under Rule 6(2) has to continue till closure of the criminal trial either in acquittal or conviction. If the criminal investigation gets prolonged and for some reasons the trial also drags on, would the employee be without any redress? Obviously, the Authority has to take a call at some point of time whether to continue or discontinue the suspension. It may be observed that it has been mentioned in Para 2.1.4 of the Manual that it is necessary to conclude proceedings drawn up as quickly as possible and in any case if it is not possible to do so due to reasons beyond control, the persons proceeded against may be allowed to resume their duties, wherever possible in places away from their former place of duty, vacating the suspension order so as to save Government expenditure in the event of his acquittal.

¶297

Then the question which will arise is, at what point of time, the Authority has to undertake the exercise? If no time frame is provided, it would be left to the absolute discretion of the Authorities. If not within three months, then when it can be undertaken, after four months, six months? Can it be left to the ipse dixit of the Authority without any time frame? This would lead to untrammeled and unguided power of the Authority to undertake the review according to their whim which would offend Article 14, the overarching Constitutional provision. If the exercise of review has to be taken by the Authority, it must be done within a reasonable time and fairly. If silence pervades Rule 6(2) as regards continuation of suspension, the vacuum must be filled with the language of Rule 6(1) spoken

¶298

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¶299

through the Manual. Accordingly, this Court is of the view that even the suspension affected under Rule 6(2) must be reviewed before the expiry of three months, if in the meantime, the charge sheet could not be filed before the competent Court, otherwise, continued suspension will be vitiated.

¶300

It is for this reason that this Court would refer to the decision of the Hon’ble Supreme Court referred to above in Ajay Kumar Choudhury (Supra). As can be seen from aforesaid judgment, the Hon’ble Supreme Court has gone into various aspects of the issue involved.

¶301

The Hon’ble Supreme Court has invoked the right of speedy trial covered by Article 21 to impress upon that even if departmental inquiry is not considered to be a criminal trial, yet since an employee has been put the certain charges and limitations, it is incumbent upon the employer to conclude it without undue delay. It is in that context that the Hon’ble Supreme Court brought in this principle to hold that even suspension should not be unduly prolonged. The Hon’ble Supreme Court also had referred the proviso to Section 167 (2) CrPC, which provides that where investigation is not completed within the statutory period of 90 days or 60 days as the case may be, the accused may be released on bail. The aforesaid provision has been inserted in Section 167 (2) of the CrPC to uphold personal freedom as well as human dignity, so that no one should remain incarcerated beyond a reasonable period during a criminal investigation.

¶302

The Hon’ble Supreme Court has also invoked Article 12 of the Universal Declaration Human Rights, 1948, which assures that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation and that everyone has the right to the protection of the law against such interference or attacks. The Hon’ble Supreme Court has also invoked Article 6(1) of the European Convention on Human Rights which stipulates that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time and that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

¶303

The Hon’ble Supreme Court in the aforesaid case of Ajay Kumar Choudhury (Supra) was

¶304

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¶305

concerned about the undue delay in the departmental enquiry as well as the prolonged suspension and accordingly, issued the direction in para 21 of the judgment, quoted above.

¶306

It may be observed that though there are other decisions of the Hon’ble Supreme Court in which it has been held that prolonged suspension does not ipso facto result in invalidation of the suspension order, it may be noted that keeping in tune with the mandate of Article 14, which prevents discrimination and arbitrariness in the administrative field, and also Article 21 which mandates speedy trial, and also keeping in mind the provisions of the Manual as quoted above, this Court is of the view that the principle laid down in Ajay Kumar Choudhury (Supra), would seem to be more in tune with the requirement of law and it would have a more pursuance value in the present case.

¶307

In this regard, this Court would also like to refer to the decisions relied upon by Mr. Nath, learned Standing Counsel for the Department.

¶308

As regards the decision in Rajiv Kumar (supra), it may be noted that though the Hon’ble Supreme Court had made the observation in para No. 29 thereof that the plea raised in the said case that suspension for a prolonged time renders the suspension invalid, was held to be untenable, it was also observed that the period of suspension should not be unnecessarily prolonged but if plausible reasons exist and the authorities feel that the suspension needs to be continued, merely because it is for a long period that does not invalidate the suspension.

¶309

It may be noted that though the Hon’ble Supreme Court made the aforesaid observation in respect of suspension issued under Rule 10(2) of the CCS (CCA) Rules, 1965, the said decision was rendered on 18.07.2003 before the amendment to Rule 10 was made in 2007 by inserting Sub-rule 6 and Sub-rule 7 to Rule 10 as discussed above.

¶310

In that view of the matter, this Court is of the opinion that the aforesaid decision which was rendered in the context of the existing un-amended rules may not be appropriate in this case.

¶311

As regards the decision in UP Rajya Krishi Utpadan Mandi Parishad (supra) , it

¶312

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¶313

may be also mentioned that the aforesaid decision was rendered in the context of the rules applicable to the said organization namely, UP Rajya Krishi Utpadan Mandi Parishad and in the said case also, the Hon’ble Supreme Court found that there was a preliminary enquiry held which found certain defalcation committed either with the active involvement of the suspended employee concerned or with his connivance and in any case, he was found guilty of dereliction of duty for not scrutinizing the accounts of the Market Committee properly and as such, the Hon’ble Supreme Court noted that there was a prima-facie case against the said suspended employee on the basis of which, the said employee was placed under suspension and the fresh suspension order was passed along with the charge-sheet and did not interfere with the continued suspension.

¶314

The aforesaid decision was rendered on 29.03.1993 and as such, it is doubtful whether the aforesaid decision of the Hon’ble Supreme Court would be also applicable in the present case where different service Rules provide for the manner in which suspension has to be dealt with as discussed above.

¶315

Coming to the case of Dipak Kr. Bhola (Supra), it may be also noted that the aforesaid decision was rendered on 13.03.1997 and also it was with reference to the steps taken by the Allahabad Bank Authorities for prosecuting the respondent therein under Clause 19.3 (a) of the first bi-partite settlement 1966 between the Management and the Union. From the perusal of the said decision it is also evident that suspension was issued on 23.09.1987 and soon thereafter the charge-sheet was also filed on 29.09.1987 before the concerned court against the respondent and as such, this Court is also of the view that the observation made in the said decision may not be also applicable as charge-sheet was filed within few days of the order of suspension.

¶316

As regards reliance on Ashok Kumar Agrawal (Supra), it may be stated that the aforesaid decision rather than supporting the case of the Department supports the case of the petitioners.

¶317

In the said case, the Hon’ble Supreme Court had extensively dealt with the issue of

¶318

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suspension and the Hon’ble Supreme Court impressed upon the authorities not to invoke the power of suspension in a ordinary manner and without any reasonable ground as otherwise, it would be vindictive and misuse of power. It was also held that suspension should be made only in the case where there is a strong prima-facie case on the delinquent against the employee against whom there are allegations involving grave misconduct or indiscipline or refusal to carry out the orders of superior authority and where there is a strong prima-facie case against him, if proved would ordinarily result in reduction in rank, removal or dismissal from service. Though the Hon’ble Supreme Court also made observation that long period of suspension does not make the order of suspension invalid, it was also observed that where for any reason it is not possible to proceed with the domestic enquiry, the delinquent may not be kept under suspension.

¶320

It may be noted that in the said case, the respondent therein was placed under suspension in connection with 2 (two) criminal cases which were investigated by the Central Bureau of Investigation (CBI) in connection with which he was arrested and accordingly he was under deemed suspension and the suspension order was reviewed subsequently which was challenged before the Administrative Tribunal, which was allowed by the Tribunal with a direction to the authorities to pass fresh appropriate order.

¶321

The authorities pursuant to the direction of the Tribunal again passed an order for continuation of the suspension, which was again challenged by the respondent before the Tribunal. In the meantime, the departmental proceedings were also initiated against the respondent and based on the CBI investigation reports, memorandum of charges were issued against the respondent which however was quashed by the Tribunal.

¶322

The continued suspension of the respondent was again challenged before the Tribunal which vide order dated 16.12.2011, directed the appellant to convene a meeting of the Special Review Committee (SRC) within a stipulated period for reconsideration for revocation or continuation of the suspension of the respondent after taking into consideration various developments which had taken place in the meantime.

¶323

Thereafter, fresh order or continuation of suspension of the respondent was issued which was

¶324

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again challenged before the Tribunal and the Tribunal set aside the said order on the ground that the earlier direction issued by the Tribunal on 16.12.2011 had not been complied with. The Hon’ble Supreme Court upheld the order of the Tribunal by refusing to interfere with the order of the High Court which had dismissed the appeal preferred against the order of the Tribunal.

¶326

In para No. 56 of the aforesaid decision, the Hon’ble Supreme Court made the observation that the Tribunal and the High Court were right that the appellant had not followed the direction of the Tribunal issued on 16.12.2011 and the mandate of OM dated 07.01.2004 and there is no gain saying that the terms of the aforesaid OM were required to be observed.

¶327

The OM relates to requirement of the Central Vigilance Commission (CVC) to review the progress of investigation conducted by CBI in a case under the Prevention of Corruption Act, 1988 and as per the Vigilance Manual issued by the CVC.

¶328

It was also observed that if the CBI recommends suspension of a public servant and the competent authority does not propose to accept the said recommendation, the matter may be referred to CVC for its advice.

¶329

The Hon’ble Supreme Court also noted that the Department of Personnel and Training, Govt. of India also had issued the Circular dated 04.01.2004 regarding the review of the suspension order.

¶330

Thus, it was in the aforesaid context that the Hon’ble Supreme Court held that the authority did not take into consideration the various instructions relating to suspension and extension thereof, because of which the Tribunal held the continued suspension illegal.

¶331

The aforesaid observation made by the Hon’ble Supreme Court in para No. 56 was made in passing and cannot be lifted out of context to contend that the Hon’ble Supreme Court in the aforesaid case of Ashok Kumar Agarwal (supra) had laid down a law of universal application that prolonged suspension does not render the order illegal.

¶332

As regards Sanabam Sorojini case (supra) , this Court is of the view that the aforesaid judgment rather support the case of the State respondent, supports the case of petitioners, in as much as, in the said case also the Court also held that continuation of

¶333

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suspension without undertaking the review beyond 90 days would be liable to be interfere with.

¶335

Having considered the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 read with the Manual referred to above and the various decisions of this Court as well as the Hon’ble Supreme Court, more particularly the decision in Ajay Kumar Choudhury (Supra), and for the reasons discussed above, this Court would hold that even in case of deemed suspension under Rule 6 (2) of the Assam Services (Discipline and Appeal) Rules, 1964, where charge-sheet in connection with the criminal case has not been submitted before the competent Court within three months, the Disciplinary Authorities would be required to review for continuance of suspension by seeking advice of the Department of Personnel in the same manner as provided under Para 2.1.8 of the Manual. As a consequence, if such review is not held within three months where charge-sheet is not filed before the competent Court, the suspended employee would be entitled to be reinstated in service. The employees deemed suspended under Rule 6(2) would be entitled to similar treatment extended to the employees suspended under Rule 6(1) of the Assam Services (Discipline and Appeal) Rules, 1964.

¶336

However, it is also made clear that these three months time period stipulated in Para 2.1.8 of the Manual which this Court has held to be applicable to the employees suspended both under Rule 6 (1) and 6 (2) is not to be read in a pedantic manner, in the sense that on completion of three months period where no such review is held, it would immediately and automatically result in invalidation of the suspension. The authorities could still hold a review even after expiry of three months, however, under exceptional circumstances with proper reasons assigned and recorded in writing, for not undertaking the review of the suspension.

¶337

In this regard, this Court would like to make a reference to Order VIII Rule 1 of the Code of Civil Procedure (CPC) whereunder the defendant is required to file the written statement within thirty days from the date of service of summons on him, provided where the defendant fails to file the written statement within the said thirty days, he shall be allowed to file the same on such other day as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from date of service of summons.

¶338

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¶339

The Hon’ble Supreme Court in Kailash Vs. Nankhu, 2005 4 SCC 480 held that, though the aforesaid provision stipulating the maximum period of ninety days for filing written statement seems to be mandatory, in a case defendant may face extreme hardships in not being able to file the written statement within ninety days and as such the provision is not to be strictly followed.

¶340

But, it was also emphasized that the defendant may be permitted to file the written statement after expiry of ninety days only in exceptional situation.

¶341

Similarly in the present case also under normal circumstances if charge-sheet is not filed against the suspended employee under Rule 6 (2), who is accused and arrested in a criminal case within ninety days, he would normally be entitled to be reinstated in service.

¶342

However, the aforesaid ninety days is not to be counted with mathematical precision that with the striking of the clock on the 90^th day indicating completion of ninety days, the suspension order will be deemed to have been automatically invalidated.

¶343

If the review could not be held within ninety days, but the Disciplinary Authority is able to explain with cogent and germane reasons in writing as to the inability to undertake the exercise of review within the aforesaid period, and charge-sheet could not be filed, continuation of suspension beyond three months would not vitiate the suspension automatically.

¶344

However, the Disciplinary Authority must undertake the said exercise of review at earliest possible by explaining the reasons for delay to be recorded in writing and only in exceptional cases.

¶345

The aforesaid ninety days period mentioned in para 2.1.8 of the Manual cannot be held to be an inflexible rule which would render any order of suspension illegal the moment three months period gets expired.

¶346

However, to ensure compliance with such provision requiring the review within three months, conducting review of suspension order beyond ninety days must be only in exceptional circumstances supported by cogent reasons to be recorded in writing. Otherwise, it would be

¶347

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rendered invalid.

¶349

Just to give an example, if a person remains under custody for more than ninety days merely, because review was not held within ninety days of the deemed suspension under Rule 6 (2), such deemed suspension cannot be declared to be invalid, for the reason that the employee continues to be in custody.

¶350

In the light of the above discussions and principles which can be culled from various judicial pronouncements, this Court would proceed to dispose of the three petitions in the following manner:

¶351

(i) The petitioner in WP (C) 6842/2018 was placed under suspension vide order dated 26.06.2018 w.e.f. 24.05.2018, when he was detained by the police in connection with an FIR case. However, the charge-sheet in connection with the FIR has not been filed within three months and also no review was held. The petitioner was furnished with a show cause notice dated 15.11.2018, i.e., after about five months of the formal order of suspension and about six months of the effective date of suspension, thus after more than three months as stipulated under Para 2.1.8 of the Manual. Since, no review of the suspension order had been held within three months or immediately on completion of three months, the continued suspension is illegal the petitioner would be entitled to be reinstated in service. The impugned suspension order dated 26.6.2018 is, accordingly, liable to be set aside.

¶352

(ii) As regards the petitioner in WP (C) 8695/2018, the petitioner was placed under suspension vide order dated 12.09.2018 w.e.f. 11.09.2018 in connection with a criminal case, when he was arrested. In his case also the memorandum of charges have not been framed nor furnished to the petitioner, nor the charge-sheet has been filed before the concerned criminal court within three months and as the Disciplinary Authority has not undertaken any review for continuation of his suspension within three months or immediately on completion of three months, the continued suspension is illegal. Accordingly, the petitioner would be entitled to be reinstated in service and the impugned suspension order dated 26.6.2018 is liable to be set aside.

¶353

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¶354

(iii) The petitioner in WP (C) 711/2019 was also suspended from service vide order dated 24.08.2017 after he was arrested by the police on 21.08.2017 in connection with vigilance case. In this case also charge-sheet has not been filed before the competent criminal court within three months, nor the memorandum of charges have been framed and furnished to him in connection with the contemplated disciplinary proceeding within three months. Neither the authorities have undertaken any review for continuation of the suspension order within three months or on immediately on completion of three months. In that view of the matter, the petitioner would be entitled to be reinstated in service. The impugned suspension order dated 24.8.2017 is accordingly, liable to be set aside.

¶355

In the result and for the reasons discussed above, all the three petitions are allowed by setting aside the impugned suspension orders dated 26.06.2018, 12.09.2018 and 24.08.2017 respectively in respect of the aforesaid petitioners.

¶356

JUDGE

¶357

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Manash Kamal Gogoi v. the State of Assam

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Manash Kamal Gogoi v. the State of Assam

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