Partly allowed

Biman Phukan v. the State of Ap and 2 Ors.

Gauhati HC17 Aug 2022WP(C)/153/2022

Case brief

AI extract

What is this about?

A Single Judge held that the extension of the petitioner's suspension on 03.03.2022 was invalid. Since the employee was released from detention before the 90-day limit expired, the proviso allowing delayed review did not apply. The High Court set aside the extension order.

What did the court decide?

The extension of suspension granted by the order dated 03.03.2022 is set aside; the petitioner is to be considered for departmental posting per law.

Biman Phukan Vs the State of Ap and 2 Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/7

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GAHC040004452022

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

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Case No. : WP(C) 153/2022

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1:Biman Phukan S/o Lt. R.K Phukan, R/o D Extension II Sector, Itanagar, PO and PS Itanagar, Papumpare District, Arunachal Pradesh. Mobile 8132097718, Email Nil

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VERSUS

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1:THE STATE OF AP and 2 Ors.

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Through the Chief Secretary to the Govt of Arunachal Pradesh, Itanagar.

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2:The Secretary (Land Management) Govt. of Arunachal Pradesh Itanagar.

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3:The Director (Land Management) Govt. of Arunachal Pradesh Itanaga

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Advocate for the Petitioner : Mr. R. Sonar Advocate for the Respondents : Mr. I. Riram Govt. Advocate

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Page No.# 2/7

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BEFORE HONBLE MR. JUSTICE A M BUJOR BARUA

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DATE OF HEARING :- 17.08.2022

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DATE OF JUDGEMENT :- 17.08.2022

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JUDGMENT & ORDER (ORAL)

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Heard Mr R. Sonar, learned counsel for the petitioner. Also heard Mr. I. Riram, learned Government Advocate for the respondent No. 1, the Chief Secretary to the Government of Arunachal Pradesh, and Mr. D. Kamduk, learned Standing Counsel, Land Management Department for the respondent Nos. 2 & 3.

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2. The petitioner is an Additional Chief Estimator in the Office of the Deputy Commissioner, Itanagar Capital Complex. An F.I.R dated 31.01.2020, was lodged before the Superintendent of Police, Special Investigation Cell, Itanagar, interalia, alleging that some officials of the Land Management Branch of the Deputy Commissioner, Itanagar, Capital Complex had issued certain overlapping Land Possession Certificates resulting in the SIC(VIG) Police Station, Itanagar Case No.20/2020, under Sections 468/420/471/120 (B) of the Indian Penal Code, read with Section 13(2) of the Prevention of Corruption Act, 1988, being registered. The petitioner was arrested on 23.06.2021, in connection with the aforesaid SIC(VIG) Police Station, Itanagar Case No.20/2020.

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3. As the petitioner was under detention for a period exceeding 48 hours, he was placed under suspension as per the Office Memo No. LM/ESTT256/S&DP/2021, dated 25.06.2021. Later on as per the order 23.08.2021, of the learned Special Judge (PCA), Yupia, the petitioner was released on bail.

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Page No.# 3/7 Admittedly, the petitioner was placed under suspension as per the provision of Rule 10 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [in short CCS (CCA) Rules]. After being released from detention, the respondent authority through the Chief Secretary to the Government of Arunachal Pradesh had passed the order dated 03.03.2022, the relevant portion of which is extracted as below:-

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“WHEAREAS, vide Government Order No.LM/ESTT256/S&DP/2021/44 dated 28.06.2021, Shri Biman Phukan, Addl. Chief Estimator, office of DC, ICR, Itanagar was placed under deemed suspension with effect from 23^rd June, 2021 on account of his arrest and detention in Police custody in connection with SIC(VIG) PS Case No.20/2020 U/S 120(B)468/471/420 IPC R/W Sec.13(2) of PC Act, 1988 which has exceeded the period beyond forty-eight hours.

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AND WHEREAS, the matter pertaining to his suspension was discussed and deliberated in the meeting of Suspension Review Committee headed by Secretary (Land Management) which was held on 24.02.2022.

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AND WHEREAS, the Committee noted that there were very serious allegations of his involvement in the issuance of Land Possession Certificate of same plot to different individuals in the Capital Region in collusion with some private individuals with malafide intention. A case vide SIC(VIG) PS Case No.20/2020 U/S 120(B)468/471/420 IPC R/W Sec.13(2) of PC Act, has been registered against him based on enquiry report of the Enquiry Officer and it is intimated that during the course of investigation by SIC(VIG) PS Itanagar, it has been found that a total of 799 LPCs (359 in the year 2016 and 420 in the year 2019) were issued to various individuals and parties in the Itanagar Capital Region with vested interest by the said official in collusion with some private individuals which are being analyzed and investigation has been going on. Based on the information placed before the Suspension Review Committee, the

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Page No.# 4/7 Committee noted that the said official has indulged in grave misconduct, have entered into criminal conspiracy with other private persons and Government officials and have acted in a manner which is totally unbecoming of Government Servant.

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AND WHEREAS, the Competent Authority after due examination of all the facts and circumstances of the case and documents placed on record has accepted the aforementioned recommendation of the Suspension Review Committee.

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NOW, THEREFORE, the undersigned, in exercise of powers conferred by the Rule 10(7) of the CCS (CCA) Rules, 1965, hereby extends the Suspension of Shri Biman Phukan, Addl. Chief Estimator, Officer of DC, ICR, Itanagar for a further period of 180 days with effect from date of intimation office released from detention i.e 10.12.2021.”

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4. A reading of the above extracted portion of the order dated 03.03.2022, makes it discernible that the Suspension Review Committee headed by the Secretary, Land Management Department had considered the requirement to extend the period of suspension of the petitioner and accordingly, in exercise of the power conferred under Rule 10(7) of the CCS (CCA) Rules, 1965, the suspension of the petitioner namely Shri Biman Phukan, Addl. Chief Estimator in the Office of Deputy Commissioner, Itanagar Capital Region was extended for a further period of 180 days w.e.f 10.12.2021. The order dated 03.03.2022, whereby, the period of suspension of the petitioner stood extended is assailed in this writ petition.

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5. Mr. R. Sonar, learned counsel for the petitioner refers to the provisions of Rule 10(7) of the CCS (CCA) Rules, 1965, which inter alia provides that an order of suspension made or deemed to have been made under Rule 10(1) or 10(2) shall not be valid after a period of 90 days, unless, it is extended for a further period after review, but before the expiry of 90 days. Mr. Sonar, learned counsel for the petitioner contends that as the writ petitioner was arrested on

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Page No.# 5/7 23.06.2021, and he placed under suspension as per the order dated 28.06.2021, the period of 90 days have elapsed as on 24.09.2021, and therefore, the period of suspension of the petitioner could not have been extended in exercise of the power under Rule 10(7) of the CCS (CCA) Rules, 1965.

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6. Mr. Sonar, learned counsel for the petitioner further points out that Rule 10(7) of the CCS (CCA) Rules, 1965, itself provides that the period of suspension can be extended after the review for a further period, but it has to be done before the expiry of 90 days from the date of the suspension. As 90 days expired on 24.09.2021, the authorities thereafter did not have any further jurisdiction to extend the period of suspension after the aforesaid expiry of 90 days. As in the impugned order of 03.03.2022, the extension was granted after the expiry of the period 90 days from the date of suspension, therefore, the said order would be unsustainable in law.

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7. Mr. D. Kamduk, learned Standing Counsel for the Land Management Department on the other hand referring to the affidavit filed by the respondent authorities submits that the petitioner was released from custody as per the order dated 23.08.2021, and the said information was intimated to the Disciplinary Authority on 10.12.2021, and therefore, in view of the provisions of the proviso to Rule 10(7) of the CCS (CCA) Rules, 1965, the period of 90 days to enable the authorities to extend the period of suspension would be counted from 10.12.2021, i.e. the authorities had the necessary time upto 10.03.2022, to extend the suspension. As the order of extension for suspension was made on 03.03.2022, therefore, in view of the proviso to Rule 10(7), the extension of the suspension was permissible in law.

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8. The Rule 10(7) of the CCS (CCA) Rules, 1965, including the proviso is extracted as below:-

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Page No.# 6/7 “ An order of suspension made or deemed to have been made under sub-rule (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.

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Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continuous 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 released from detention is intimated to his appointing authority, whichever is later.”

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9. We have gone through proviso to Rule 10(7) of the CCS (CCA) Rules, 1965. The proviso inter alia provides that no such review of suspension shall be necessary in case of deemed suspension under Rule 10(2), if the Government Servant continuous to be under detention at the time of completion of 90 days of suspension and if, the aforesaid condition is satisfied, then the period of 90 days would be counted either from the date of release from detention or from the date on which the released was intimated to the Disciplinary Authority, whichever was later.

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10. In the instant case, we have taken note that the date of suspension is 28.06.2021, whereas, the date of being released from detention is 23.08.2021, and 90 days from the date of detention would have otherwise been 23.09.2021. As the petitioner was not under detention as on 24.09.2021, i.e. 90 days after the date of suspension, therefore, in our view the provision of the proviso to Rule 10(7) of the CCS (CCA) Rules, 1965, would not be applicable in the instant case. As the proviso itself would be not applicable, therefore, the respondent authorities would be disentitled to avail the provision that 90 days of suspension

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Page No.# 7/7

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would be counted from the date of intimation made to the Disciplinary Authorities as regards the petitioner being released from detention.

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11. Accordingly, in view of the provisions of Rule 10(7) of the CCS (CCA) Rules, 1965, the period of suspension of the petitioner could not have been extended further after expiry of 90 days from the date of detention, i.e after 24.09.2021. As by the impugned order the suspension was extended after expiry of 90 days from the date of detention, we are of the view that the same would be unsustainable in law. Accordingly, the extension granted to the period of suspension of the petitioner by the order dated 03.03.2022, of the Chief Secretary to the Government of Arunachal Pradesh stands set aside.

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12. After arriving at the conclusion, that the order of extension of suspension of the petitioner was not in accordance with law, we further provide that the petitioner shall now be subjected to all the provisions of law, including the discretion of the authorities to place the petitioner in any given post as per the requirement of the circumstance of the Departmental Authorities, keeping in view that the petitioner is subjected to a Criminal Proceeding under the law.

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13. Accordingly, in view of above, the writ petition stands closed.

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JUDGE

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Comparing Assistant

Biman Phukan v. the State of Ap and 2 Ors.

Case brief

What is this about?

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Biman Phukan v. the State of Ap and 2 Ors.

Case brief

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