The Gauhati High Court set aside a suspension order against a petitioner exceeding three months without charges under Ajay Kumar Choudhary. Liberty granted for equivalent posting not hampering inquiry.
Quashed suspension order; liberty granted to post petitioner in equivalent post not hampering inquiry.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010038082022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1534/2022
ABDUL MALIK MAZUMDER
S/O LT. ABDUL HOQUE MAZUMDER, R/O HAILAKANDI TOWN, WARD NO. 1, P.O. AND DIST- HAILAKANDI, ASSAM, PIN-788151
VERSUS
THE STATE OF ASSAM AND 4 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GHY-6
2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GHY-19
3:THE DEPUTY COMMISSIONER HAILAKANDI P.O. AND DIST-HAILAKANDI ASSAM PIN-788151
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER HAILAKANDI P.O. AND DIST- HAILAKANDI ASSAM PIN-788151 5:THE DEPUTY INSPECTOR OF SCHOOL HAILAKANDI P.O. AND DIST- HAILAKANDI ASSAM PIN-78815
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Advocate for the Petitioner : MR. N HOSSAIN
Advocate for the Respondent : SC, ELEM. EDU
BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER(ORAL)
Date : 27-04-2022
Heard Mr. N. Hussain, the learned counsel appearing on behalf of the Petitioner, Mr. G. Pegu, the learned counsel appearing on behalf of the Respondent No. 3 and Mr. P.K. Borah, the learned counsel appearing on behalf of the Respondent Nos. 1, 2, 4 and 5.
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Assistant of the Deputy Inspector of Schools, Hailakandi, the name of the Petitioner was included in the said Committee. The Petitioner’s further case is that the Petitioner found some wrong information regarding the vacancy position in the year 2021 conducted by one Shri Zahid Hussain Choudhury, Junior Assistant of Deputy Inspector of Schools, Hailakandi, in as much as, as per the Petitioner, the said Junior Assistant had shown the vacancy position in the year 2021 as 402 in L.P. and 476 as U.P. Schools respectively without showing the total vacancy from the year 2015 to 2021. The Petitioner’s further case is that the said Junior Assistant of the Deputy Inspector of Schools on being asked refused to reply and misbehaved with the petitioner. Further to that, the said Junior Assistant hatched a conspiracy with higher officials and pressurize the Petitioner to handover the records of the compassionate appointment to the Junior Assistant without issuing any order. The Petitioner’s further case is that there were various anomalies as regards the recommendation so made for appointment under compassionate ground and as the Petitioner raised objection against the erring officials which included the Deputy Commissioner, Hailakandi, the impugned order vide Memo No.HPE.33/2021/23 dated 18/12/2021 was issued whereby the Petitioner was placed under suspension as per Rule 6(1) (a) of the Assam Services (Discipline and Appeal) Rules, 1964(in short the “Rules of 1964).
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against the Petitioner but no such proceedings has been initiated by the authority as per the provisions of the said Rules of 1964. He further submitted that as on the date of filing of the writ petition, the period of 3 (three) months has already elapsed and as there has been no initiation of the departmental proceedings, the continuance of the suspension order is in violation to the mandate of the judgment rendered in the case of Ajay Kumar Choudhary Vs. Union of India reported in (2015) 7 SCC 291 . It is the further case of the Petitioner that on the basis of false and frivolous allegation the Petitioner has been victimized as the Petitioner had objected to the illegalities committed by the erring officials. On the basis of the above, the instant writ petition has been filed under Article 226 of the Constitution of India for setting aside and quashing the impugned order of suspension dated 18/12/2021.
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opportunities to be heard in the departmental proceedings. Apart from that, it was also mentioned in the said instruction that an investigation is also going on against the Petitioner for his questionable behavior towards one Tahira Begum Laskar under Section 14 of the Sexual Harassment of Women at Work Place(Prevention, Prohibition and Redressal) Act, 2013 and for this some more time is required to complete the enquiry. It was mentioned that the process of extension of the suspension order in respect to the Petitioner is under process and observing all previous allegations, it might be contemplated that his reinstatement would hamper the process of enquiry. The copy of the instruction so produced by Mr. Girin Pegu, the learned counsel is kept on record and marked with the letter X.
“ 11. Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration. If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature. Departmental/disciplinary proceedings invariably commence with delay, are plagued with procrastination prior and post the drawing up of the memorandum of charges, and eventually culminate after even longer delay.
12. Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour, indiscretion or offence. His torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination, that is, to determine his innocence or iniquity. Much too often this has now become an accompaniment to retirement. Indubitably, the sophist will nimbly counter that our Constitution does not explicitly guarantee either the right
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to a speedy trial even to the incarcerated, or assume the presumption of innocence to the accused. But we must remember that both these factors are legal ground norms, are inextricable tenets of Common Law Jurisprudence, antedating even the Magna Carta of 1215, which assures that — “We will sell to no man, we will not deny or defer to any man either justice or right.” In similar vein the Sixth Amendment to the Constitution of the United States of America guarantees that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial.
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/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. As in the case in hand, the Government is free to transfer the person concerned 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 recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the 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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Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the continuance of suspension order beyond three months without serving charges violates the mandate of Ajay Kumar Choudhary.
Whether the impugned suspension order dated 18/12/2021 is liable to be set aside and quashed.
Colour shows how this judgement treated each authority
Abdul Malik Mazumder
The State of Assam
Devashis Baruah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
