Anuradha Adhikari Sarma Vs the State of Assam and 3 Ors.

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GAHC010035912023

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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)/1013/2023

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ANURADHA ADHIKARI SARMA W/O- SRI ATANU PRASAD SARMA, ADDRESS- H.NO. 57, BHAGADUTTAPUR, KAHILIPARA, GHY, DIST.- KAMRUP (M), ASSAM, PIN781019

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VERSUS

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THE STATE OF ASSAM AND 3 ORS. REP. HEREIN BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, DEPTT. OF FISHERIES, ADDRESS- JANATA BHAWAN, BLOCK E, 1ST FLOOR, DISPUR, GHY-781006, ASSAM

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2:ASSAM FISHERIES DEVELOPMENT CORPORATION LIMITED REP. HEREIN BY ITS MANAGING DIRECTOR ADDRESS- V.I.P. ROAD SIX MILE CHACHAL BORBARI GHY- 36 DIST.- KAMRUP (M) ASSAM 3:DEPTT. OF PERSONNEL (PERSONNEL-A) GOVT. OF ASSAM REP. HEREIN BY ITS PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM ADDRESS- ASSAM SECRETARIAT (CIVIL) DISPUR GHY-06 DIST.- KAMRUP (M) ASSAM

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4:HIGH POWER COMMITTEE ASSAM FISHERIES DEVELOPMENT CORPORATION LIMITED ADDRESS- V.I.P. ROAD SIX MILE CHACHAL BORBARI GHY- 36 DIST.- KAMRUP (M) ASSA

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For the Petitioner : Mr. H.K. Das, Adv.

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For the Respondents: Ms. M. Bhattacharjee, Addl. Sr. GA, Assam.

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BEFORE

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THE HON’BLE MR. JUSTICE SUMAN SHYAM

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Date of hearing & Judgement : 05/04/2025.

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JUDGEMENT AND ORDER (ORAL)

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1. Heard Mr. H.K. Das, learned counsel for the writ petitioner. Also heard Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing on behalf of the State.

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2. The petitioner herein, in an Officer belonging to the Assam Civil Service Grade-I (ACS Gr-I). During the course of her employment, the writ petitioner was posted as the Managing Director (MD) of the Assam Fisheries Development Corporation (AFDC). The writ petitioner was placed under suspension by order dated 09/02/2023 due to the departmental proceeding initiated against her. On 09/02/2023 itself, a show cause notice under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (herein after referred to as the Rules of 1964) read with Article 311 of the Constitution of India was served upon her calling upon the petitioner to show cause as to why, any of the penalties prescribed under Rule 7 of the Rules of 1964 should not be imposed upon her.

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3. The enquiry conducted into the charges brought against the petitioner have since been concluded and the Enquiry Officer has also submitted the Enquiry Report whereby, the charges have been held to have been established. It is the admitted position of fact that a

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copy of the Enquiry Report was forwarded to the petitioner, whereafter, she has also submitted her response in respect thereof. The Disciplinary Authority is, however, yet to take a decision on the question of penalty, so as to bring the disciplinary proceeding to its logical end.

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4. In this writ petition, the basic plea of the writ petitioner is that there were lapses on the part of the departmental authorities in reviewing the order of suspension within the time frame laid down in the decision rendered by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India through its Secretary and another reported in (2015) 7 SCC 291 as well as the subsequent decision of the Division Bench of this High Court rendered in the case of State of Assam & Anr. Vs. Ajit Sonowal reported in 2023(6) GLT 115 . According to Mr. Das, if an order of suspension is not reviewed within the time frame of 90 (ninety) days from the date of issuance of the same, the said order would lapse automatically by operation of law and the same cannot be revived subsequently by issuing orders beyond the period of 90 days. Viewed from that angle, submits Mr. Das, continuance of the petitioner under suspension as on date, is wholly illegal and, therefore, is liable to be set aside by this Court.

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5. Ms. M. Bhattacharjee, learned Additional Senior Government Advocate, Assam, appearing for the respondents, on the other hand, has produced a copy of the written instruction dated 04/04/2025 issued by the Joint Secretary to the Government of Assam, Personal (A) Department, to submit that the charges brought against the petitioner have been established in the enquiry proceeding and after receipt of the representation of the petitioner on the enquiry report, the Disciplinary Authority is contemplating appropriate penalty that can be imposed upon the petitioner. She submits that since there is a possibility of imposition of major penalty upon the writ petitioner, any order of reinstatement of the petitioner in service, at this stage, would not only be detrimental to the interest of the Department but also embarrassing for the Government. Under such circumstances, Ms. Bhattacharjee submits that since the decision by the Disciplinary Authority is expected within a week, no order of reinstatement be passed in the present proceeding even if a technically sound case is made out by the writ petitioner.

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6. I have considered the submissions made at the Bar and have also gone through the materials available on record.

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7. From the case projected by the petitioner, it appears that the writ petitioner had discharged the duties as MD of AFDC during the period from 12/03/2020 to 15/12/2021. Thereafter, she was posted as Joint Secretary to the Government of Assam, Border Protection and Development Department. While the petitioner was serving as MD of AFDC, certain anomalies allegedly pertaining to regularization of employees and appointment of contractual employees in the AFDC were detected. As such, a departmental proceeding was initiated against the writ petitioner in terms of Rule 9 of the Rules of 1964. By the order dated 09/02/2023 issued under Rule 6(1)(a) of the Rules of 1964, the petitioner was also placed under suspension. The order of suspension was thereafter, reviewed on four occasions i.e. 24/05/2023, 10/08/2023, 22/11/2023 and finally, on 19/02/2024. Since then, there has been no further review of the order of suspension. In the meantime, the disciplinary proceeding initiated against the petitioner had reached the stage when the Enquiry Report was submitted and the charges brought against the petitioner were held to have been established. After obtaining the response of the petitioner pertaining to the enquiry report, the Disciplinary Authority is contemplating imposition of penalty upon the petitioner.

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8. It is in these factual backdrops, this Court has been called upon to consider as to whether, the present is a fit case for interfering with the order of suspension dated 09/02/2023 on the ground that the departmental authorities have failed to review the same within the time line prescribed by aforementioned decisions of the Supreme Court as well as this High Court.

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9. The Hon’ble Supreme Court has time and again emphasized on the need to do away with prolonged suspension of the employees on the ground of pendency of departmental proceeding. It has been held that an employee cannot be indefinitely placed under suspension pending drawl and/or conclusion of departmental proceeding. In order to lay down a proper frame work for the authorities to deal with the order of suspension, it was observed in para 21 in the case of Ajay Kumar Choudhary (Supra) , as follows :-

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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/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

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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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10. Following the decision in the case of Ajay Kumar Choudhary(Supra), this Court, in the case of Ajit Sonowal (Supra) has made the following observations in para 13, which is reproduced herein below, for ready reference :-

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“13. From careful analysis of the above decisions of the Supreme Court what follows is that unless review is held within 90 days, an order of suspension including one issued due to the detention of an employee in custody for 48 hours, would not survive nor can such an order be granted fresh lease of life by carrying out a review after expiry of the period of 90 days. In view of the law laid down in the case of Dipak Mali (supra) and Ajay Kumar Choudhary (Supra) it is axiomatic that the order of suspension dated 07/12/2019 had lapsed after the expiry of 90 days due to want of review of the same by the Disciplinary Authority. We, therefore, find ourselves in agreement with the findings recorded by the learned Single Judge in the impugned Judgment and order dated 22/04/2021.”

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11. From the above decisions, it is thus, crystal clear that an order of suspension, if not reviewed and/ or extended with proper reasons within 90 days from the date of issuance of the order, would automatically lapse by operation of law. Viewed from that angle, there can be no doubt about the fact that the order of suspension of the petitioner had lapsed on 08/05/2023 due to failure on the part of the authorities to carry out review of the same within the period of 90 days from the date of issuance of the same. In view of the law laid down in the case of Ajay Kumar Choudhary (Supra) and Ajit Sonowal (Supra) , the order of suspension could not have been given a new lease of life by retrospectively extending the same by passing any order after the lapse of 90 days.

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12. This Court is conscious of the fact that question of placing and/ or continuing an employee under suspension, pending drawl /conclusion of a departmental proceeding, lies exclusively in the realm of the Executive and unless the action is found to be wholly unreasonable and contrary to law, the Writ Court would ordinarily not interfere with such decision, provided it is established that the right of the employee has not been unduly prejudiced due to prolonged suspension/pendency of the departmental proceeding.

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13. Coming to the facts of this case, there can be no doubt about the fact that the disciplinary proceeding initiated against the writ petition pertains to charges which are quite serious in nature. Whether the charges have been cogently established based on relevant materials or not, is not the subject matter of this writ petition and the said question can be gone into, at an appropriate stage, as and when the occasion arises. What would, however, be topical for this case is as to whether, in view of the decisions referred to above, the petitioner can be indefinitely continued in suspension, pending decision of the Disciplinary Authority. The answer to the said question would obviously have to be in the negative. An employee cannot be kept under suspension for indefinite period merely because a departmental proceeding is pending where a decision on the penalty is awaited.

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14. In view of the above and considering the submission made by Ms. M. Bhattacharjee that within two weeks from today, the Disciplinary Authority will take a final decision in the matter of penalty to be imposed upon the petitioner, this writ petition is hereby disposed of by granting 3 (three) weeks’ time, from today, to the Departmental Authorities, to pass a final order bringing the disciplinary proceeding initiated against the petitioner, to its logical end, failing which, the order of suspension dated 09/02/2023, as extended from time to time, shall

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stand quashed on the expiry of 3 (three) weeks’ from today. In such an eventuality, regardless of the gravity of the charges, the respondents will be duty bound to reinstate the petitioner in service within 1 (one) week thereafter. It is, however, made clear that the order passed in this proceeding, would not in any way have a bearing on the decision of the Disciplinary Authority pertaining to the penalty to be imposed upon the writ petitioner pursuant to the disciplinary proceeding initiated against her.

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With the above directions and observations, the writ petition stand disposed of. There shall be no order as to costs.

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JUDGE

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Comparing Assistant

Anuradha Adhikari Sarma v. the State of Assam and 3 Ors.

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Anuradha Adhikari Sarma v. the State of Assam and 3 Ors.

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