Allowed

Bishwa Ranjan Bhowmik v. the State of Assam and 4 Ors.

Gauhati HC3 Jan 2020WP(C)/9086/2019

Case brief

AI extract

What is this about?

The Court held that a suspension order lapses automatically if not reviewed within 90 days. Quashing the unreviewed suspension order, the Court directed the respondents to reinstate the petitioner with subsistence allowance but allowed initiation of disciplinary proceedings.

What did the court decide?

Impugned suspension order set aside and quashed; petitioner directed to be reinstated with subsistence allowance.

Bishwa Ranjan Bhowmik Vs the State of Assam… — Pension and Retirement Benefits | Gauhati HC (2020)

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GAHC010299932019

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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)/9086/2019

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BISHWA RANJAN BHOWMIK

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S/O DHIRENDRA KUMAR BHOWMIK, R/O- VILL. TOPKHANA, P.O. NARAINPUR, P.S. AND DIST. HAILAKANDI (ASSAM).

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VERSUS

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THE STATE OF ASSAM AND 4 ORS. REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, PANCHAYAT AND RURAL DEVELOPMENT DEPTT., DISPUR, GHY.-06.

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2:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT DEPTT. PANJABARI JURIPAR GUWAHATI-37.

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3:THE C.E.O. HAILAKANDI ZILLA PARISHAD HAILAKANDI PIN- 788151.

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4:THE PROJECT DIRECTOR DISTRICT RURAL DEVELOPMENT AGENCY HAILAKANDI PIN- 788151.

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5:THE B.D.O. HAILAKANDI DEVELOPMENT BLOCK HAILAKANDI PIN 788151

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Advocate for the Petitioner : MR. A H M R CHOUDHURY Advocate for the Respondent : SC, PNRD

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BEFORE

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HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

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ORDER

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03-01-2020

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Heard Mr. A.H.M.R.Choudhury, learned counsel for the petitioner and Mr. A. Roy, learned Standing Counsel, P&RD Department for the State respondent Nos. 1 to 5.

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2. The petitioner is a Junior Assistant in the District Rural Development Agency (DRDA), Hailakandi. As the post of Accountant in the Hailakandi Development Block under DRDA fell vacant, the petitioner by order dated 29.05.2015 was given the charge of Accountant in the said Hailakandi Block. While working as in-charge Accountant in the Hailakandi Development Block, a complaint was filed on 26.10.2018 by one Abdul Karim Mazumdar before the court of learned Chief Judicial Magistrate, Hailakandi indicating six employees of the DRDA, Hailakandi including the petitioner alleging misappropriate of fund under DRDA, Hailakandi, which was registered as CR Case No. 1210^c /2018.

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3. The learned CJM, Hailakandi on 26.10.2018 forwarded the said CR Case to the Additional CJM, Hailakandi for necessary consideration and the Additional CJM, Hailakandi forwarded the said complaint to the Officer-in-charge of Hailakandi Police Station and to investigate the case and then to submit the report. The same was accordingly registered as Hailakandi Police Station Case No. 871/2018 under Section 120(B)/406/420/409/34 IPC corresponding to G.R. Case No. 2196/2018. In said Hailakandi P.S. Case No. 871/2018, the petitioner was arrested on 03.11.2018 and by order dated 29.11.2018, the learned CJM, Hailakandi released the petitioner on bail.

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4. As the petitioner was arrested in said Hailakandi P.S. Case No. 871/2018 and was kept in custody more than 48 hours, the Commissioner, Panchayat and Rural Development, Assam by Office Order No. CPRD/RD/155/2018/2 dated 22.11.2018 placed the petitioner under suspension w.e.f. 03.11.2018 i.e., the date of his arrest until further order under the provisions of Rule 6(2) of the Assam Services (Discipline & Appeal) Rules, 1964, without prejudice to the Departmental/Judicial proceeding.

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5. Since the petitioner has been kept under suspension since 03.11.2018 by the respondent authorities in the P&RD Department vide order dated 22.11.2018, without examining and reviewing his suspension, the petitioner has filed this writ petition praying amongst others for setting aside and quash the impugned order dated 22.11.2018 issued under Rule 6(2) of the Assam Services (D & A) Rules, 1964, noted above.

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6. Mr. Choudhury, learned counsel for the petitioner, on instructions submitted that till date, neither any disciplinary proceeding/departmental enquiry has been initiated against the petitioner nor any show cause notice has been served upon him with regard to any such disciplinary proceeding/departmental enquiry by the authorities concerned of DRDA regarding his involvement in said Hailakandi P.S. Case No. 871/2018 pertaining to misappropriation of fund of DRDA, Hailakandi.

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7. On the other hand, Mr. Roy, learned Standing counsel, P&RD Department, on instructions submitted that the Commissioner, Panchayat and Rural Development, Assam by Office Order No. CPRD/RD/155/2018/9 dated 11.12.2019 constituted a committee to examine and review all suspension cases that are pending review with the Commissionrate in connection with extension of suspension period beyond three months consisting of (i) Joint Director, (Establishment Branch), CP & RD, Assam as Chairman; (ii) Senior Finance & Accounts Officer, CP & RD, Assam as Member Secretary and (iii) Superintendent (concerned), CP & RD, Assam as Member.

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8. Mr. Roy, on instruction also stated that the case of the petitioner shall be considered and reviewed pertaining to his suspension by the said committee.

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9. As per the provisions of the Assam Services (Discipline and Appeal) Rules, 1964; the provisions as laid down in the Manual for Disciplinary Proceedings; the decision of the Hon’ble Apex Court in the case of Ajay Kumar Choudhary, reported in (2015) 7 SCC 291 and the decision of the Division Bench of this Court in the Case of Indian Institute of Technology Vs. Aloke Kr. Ghosal and Another, reported in 2017 (5) GLT 132, which have been followed in many subsequent cases, it is well settled that when an authority suspends its employee, the said authority within 90 (ninety) days must review and to determine as to whether the said

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incumbent is required to be placed under further suspension or not.

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10. It is settled that an order of suspension needs to be reviewed before expiry of 90 (ninety) days and subsequent review before expiry of the extended period of suspension and this is a mandatory exercise to be carried out by the authority concerned. Therefore, noncompliance of the same would vitiate the order of suspension, which automatically lapses due to non-reviewing of the suspension order before its expiry of 90 (ninety) days and even, if it is reviewed after 90 (ninety) days, said suspension would be invalid, since suspension order has already lapsed. Moreover, when such review is undertaken after 90(ninety) days with regard to such an invalid order of suspension, any such subsequent extension of the same cannot revive such suspension order.

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11. The Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra) have held that – “……….. the currency of a suspension order should not extend beyond three months if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for the extension of the suspension.”

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12. The respondent authorities in the P&RD Department did not deny the fact that after placing the petitioner under suspension w.e.f. 03.11.2018 vide order dated 22.11.2018, it is neither reviewed the suspension of the petitioner nor initiated any disciplinary proceeding/departmental enquiry by the authorities concerned of DRDA regarding his involvement in said Hailakandi P.S. Case No. 871/2018 pertaining to misappropriation of fund of DRDA, Hailakandi after ninety days from the date of placing him under suspension i.e., 03.11.2018.

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13. As the impugned order dated 22.11.2018 suspending the petitioner w.e.f. 03.11.2018 was neither reviewed before the expiry of 90 (ninety) days from the date of its issuance on 22.11.2018 nor from the date of his arrest on 03.11.2018 in said Hailakandi P.S. Case No. 871/2018 and further, as no memorandum of charges had been served on the petitioner within the said period of 90 (ninety) days from the date of his suspension w.e.f. 03.11.2018, therefore, the impugned order of suspension of the petitioner dated 22.11.2018 being invalid in law and as lapsed, cannot remain effective after completion of its period of 90 (ninety) days.

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14. Accordingly, the impugned Office Order No. CPRD/RD/155/2018/2 dated 22.11.2018 issued by the Commissioner, Panchayat and Rural Development, Assam suspending the petitioner from service, being not sustainable in law, is hereby set aside and quashed.

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15. Accordingly, the respondents in the Panchayat and Rural Development, Assam shall reinstate the petitioner at DRDA, Hailakandi and/or as the Junior Assistant or any other equivalent post at DRDA forthwith. It is up to the respondents in the Panchayat and Rural Development, Assam to decide regarding the posting of the petitioner on his reinstatement in service.

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16. However, it is made clear that the respondents in the Panchayat and Rural Development, Assam may initiate the Disciplinary Proceeding/Departmental Proceeding against the petitioner in accordance with law and to complete the same at an early date, with the further observation that the petitioner shall participate in the same towards its early completion.

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17. It is also made clear that the petitioner shall be paid his subsistence allowances as admissible to him under the service Rules applicable as per his entitlement, if not paid earlier. Petitioner shall be entitled to regular pay as the impugned Office Order No. CPRD/RD/155/2018/2 dated 22.11.2018 issued by the Commissioner, Panchayat and Rural Development, Assam that was given effect from the date of arrest of the petitioner, i.e., 03.11.2018, spent its force on completion of its 90^th day, i.e., on 01.02.2019.

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18. The Office Order under No. CPRD/RD/155/2018/9 dated 11.12.2019 issued by the Commissioner, Panchayat and Rural Development, Assam, placed before the Court by Mr. A. Roy, learned Standing Counsel, P&RD Department, be kept as part of the record.

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19. With the above observation and directions, this writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Bishwa Ranjan Bhowmik v. the State of Assam and 4 Ors.

Case brief

What is this about?

What did the court decide?

Bishwa Ranjan Bhowmik v. the State of Assam and 4 Ors.

Case brief

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What did the court decide?

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