Ashok Kumar Sarma Vs the State of Assam and 4 Ors.

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GAHC010138502025

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2025:GAU-AS:12191

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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)/3553/2025

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Ashok Kumar Sarma, Son of Late Rajendra Nath Sarma, Resident of House No. 12A, Gautam Upa Path, Basisthapur, By-lane No. 1, Wireless, P.O. - Assam Sachivalaya, P.S. - Hatigaon, Guwahati-781028, District - Kamrup [M], Assam.

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……………… Petitioner

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- VERSUS -

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The State of Assam, represented by The Secretary to the Government of Assam, Food, Public Distribution and Consumer Affairs Department, Dispur, Guwahati781006, District - Kamrup [Metro], Assam. 2. The Additional Chief Secretary to the Government of Assam, Food Public Distribution and Consumer Affairs

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Department, Dispur, Guwahati-6, District - Kamrup [Metro], Assam.

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The Secretary to the Government of Assam, Food, Public Distribution and Consumer Affairs Department, Dispur Guwahati-781006, District - Kamrup [Metro], Assam.

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The Commissioner, Food Public Distribution and Consumer Affairs and Legal Metrology, Assam, R.K. Mission Road, Ulubari, Guwahati-781007.

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The District Commissioner, Dhubri, Dhubri-783301, Assam.

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………………. Respondents

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Advocates :

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Petitioner : Mr. S. Bharali, Advocate. Respondent : Mr. C.K.S. Baruah, Junior Government Advocate, Assam.

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Date of Hearing, Judgment & Order : 02.09.2025

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BEFORE

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HON’BLE MR. JUSTICE MANISH CHOUDHURY JUDGMENT

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The instant writ petition under Article 226 of the Constitution of India is preferred to assail an Order dated 28.11.2024 passed by the respondent no. 3 whereby the petitioner was placed under suspension with immediate effect, and another Order dated 06.06.2025 passed again by the respondent no. 3 whereby the period of suspension of the petitioner was extended for a further period of three months w.e.f 28.05.2025 or till further order. A direction in the nature of Mandamus to the respondent authorities to reinstate the petitioner into service with immediate effect has also been sought for.

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The petitioner is an employee under the Food, Public Distribution & Consumer Affairs Department, Government of Assam. At the time of issuance of the Order of Suspension dated 28.11.2024, the petitioner was serving as a Superintendent, Food, Public Distribution & Consumer Affairs, Dhubri.

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From the materials on record, it has emerged that it was reported that the number of issued Ration Cards in Dhubri district had been unreasonably inflated. As per the Report, in the five Legislative Assembly Constituencies [LACs] of Dhubri District, selection of new beneficiaries were undertaken for issuance of new ration cards under the National Food Security Act [NFSA], 2013 and during the said process, the nos. of ration cards issued were found inflated. A pattern of manipulation in the selection of new beneficiaries was observed.

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New Ration Cards were found to have issued to a large number of families consisting of only two members, which seemed inconsistent with the demographic pattern of Dhubri district. The petitioner was found prima facie responsible for such manipulation and the same was alleged to be done with malafide intention.

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In such backdrop, the Order of Suspension dated 28.11.2024 came to be passed by the respondent no. 3 in exercise of the power conferred by sub-rule [1][a] of Rule 6 of the Assam Services [Discipline and Appeal] Rules, 1964 [‘the 1964 Rules’ and/or ‘the Rules, 1964’, for short]. The petitioner was placed under suspension with immediate effect and the headquarter of the petitioner was made at Dhubri with a further direction that the petitioner would not leave the headquarter without obtaining prior permission of the District Commissioner, Dhubri.

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At this stage, it is also relevant to mention the relevant facts which are not in dispute. After placing the petitioner under suspension on and from 28.11.2024, a Show Cause Notice dated 10.01.2025 under Rule 9 of the 1964 Rules read with Article 311 of the Constitution had been served upon the petitioner directing him to show cause as to why disciplinary proceeding should not be initiated against him and as to why any of the penalties prescribed in Rule 7 of the 1964 Rules should not be inflicted upon him. A Statement of Allegations was also enclosed with the Show-Cause Notice dated 10.01.2025 along with a List of Witnesses and a List of Documents. In response to the Show Cause Notice, served upon the petitioner on 10.01.2025, the petitioner submitted a Reply to the respondent no. 3 on 17.03.2025. Assailing the Order

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of Suspension dated 28.11.2024, the petitioner has also preferred an appeal before the State Government on 20.03.2025 praying for revocation of the Order of Suspension.

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It was on 06.06.2025, the impugned Order has been passed by the respondent no. 3 whereby the period of suspension of the petitioner came to be extended for a further period of three months w.e.f. 28.05.2025 or till further order. It is mentioned that considering the grave nature of charges framed against the petitioner, the Disciplinary Authority has decided that re-instatement of the petitioner at that stage might not be in the interest of public service.

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In the above backdrop, the petitioner has instituted the instant writ petition seeking the reliefs, mentioned above.

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I have heard Mr. S. Bharali, learned counsel for the petitioner and Mr. C.K.S. Baruah, learned Junior Government Advocate, Assam for all the respondents.

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Mr. Bharali, learned counsel for the petitioner has contended that the Order of Suspension dated 28.11.2024 came to be passed by the respondent no. 3 in exercise of the powers under Rule 6[1][a] of the 1964 Rules and the subsequent Order extending the period of suspension came to be issued only on 06.06.2025 whereby the period of suspension was extended with retrospective effect from 28.05.2025. He has pointed out that in between 28.11.2024 and 06.06.2025, the Disciplinary Authority and/or the Competent Authority did not make any review of the Suspension Order within a period of

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three months from 28.11.2024 and there was no reasoned order extending the period of suspension beyond the initial period of three months. He has submitted that even after the Memorandum of Charges is prepared and served upon a delinquent officer, it is still a mandate to review the Suspension Order within a period of three months to find out the necessity to extend the currency of the Order of Suspension or not and to pass a reasoned order. He has submitted that neither within a period of three months nor within a period of six months from 28.11.2024, any review was done. It is evident from the Order dated 06.06.2025 that the review was done only after expiry of a period of six months from 28.11.2024.

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9.1. Mr. Bharali has contended that in such obtaining fact situation, neither the original Order of Suspension passed on 28.11.2024 can survive any longer nor the subsequent Order dated 06.06.2025 is sustainable in law. In support of his submissions, he has relied upon the decisions of the Hon’ble Supreme Court of India in Ajay Kumar Choudhary vs. Union of India and another , reported in [2015] 7 SCC 291, and a Judgment of a Division Bench of this Court passed in W.P.[C] no. 3218/2019 [ Rakibuddin Ahmed vs. The State of Assam and others ].

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On the other hand, Mr. Baruah, learned Junior Government Advocate appearing for the State respondents has referred to an Office Memorandum dated 04.02.2020 of the Personnel Department, Government of Assam to submit that as per the Office Memorandum dated 04.02.2020, the Memorandum of Charges is required to be served upon the delinquent employee within a period of three months and the said condition has been

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fulfilled in the case in hand as the Memorandum of Charges was issued and served upon the petitioner on 10.01.2025, which was within a period of three months from 28.11.2024. The Office Memorandum has further stipulated that after issuance of Memorandum of Charges, a review is required to be undertaken within a period of six months to find out the desirability to continue with the suspension or not. By referring to the stand taken in the affidavit-inopposition filed by the respondent no. 3, Mr. Baruah has submitted that the process for reviewing the Suspension Order passed in respect of the petitioner was initiated well before expiry of six months period following due procedure and with the approval of the Competent Authority. After review of the matter by the Disciplinary Authority, the suspension period of the petitioner was extended for a further period of three months w.e.f. 28.05.2025 or till further order vide the Order dated 06.06.2025. In support of his submissions, he has referred to a decision of a coordinate bench of this Court in W.P.[C] no. 5623/2024 [ Sudhir Kr. Paul vs. The State of Assam and others , decided on 12.06.2025].

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The power to place a Government servant under suspension has been provided in Rule 6 of the Rules, 1964. For the purpose of the case in hand, subrule [1] and sub-rule [2] of Rule 6 of the Rules, 1964 are found to be of relevance and therefore, the same are quoted below for ready reference :-

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[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 –

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[a] Where a disciplinary proceeding against him is contemplated or is pending; or

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[b] Where is the opinion of the authority aforesaid he has engaged himself in activities prejudicial to the interest or the security of the State; or

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[c] Where a case against him in respect any criminal offence is under investigation, inquiry or trial;

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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.

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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.

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The Hon’ble Supreme Court of India in Ajay Kumar Choudhary [supra] has laid down the law that the currency of a suspension order should not extend beyond three months if within the said period of three months, the memorandum of charge / charge-sheet is not served. In order to extend the suspension period beyond the period of three months, a reasoned order must be passed for the extension of the suspension. It has been further laid down that if the memorandum of charges / charge-sheet is served within the period of three months, a reasoned order must be passed for the extension of the suspension.

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From a plain reading of the law so laid down in Ajay Kumar Choudhary

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[supra], it is discernible that the law so laid down is in two parts. The first situation envisaged is where a disciplinary proceeding has not been initiated against the delinquent officer / employee within a period of three months from the date such officer / employee was placed under suspension. In such situation, it has been laid down that the currency of the suspension period shall not extend beyond three months, if within the initial period of three months, the memorandum of charges / charge-sheet is not served upon the delinquent officer / employee. This situation is not involved in the case in hand, as after the Order of Suspension dated 28.11.2024, the Memorandum of Charge was issued and served upon the petitioner within a period of three months, that is, on 10.01.2025.

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The second situation envisages in Ajay Kumar Choudhary [supra] contains a mandate that in the event the Memorandum of Charges / ChargeSheet is issued and served upon the delinquent officer / employee within a period of three months from the date of suspension even then a reasoned order must be passed for extension of the suspension period beyond the initial period of three months.

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At this juncture, the relevant parts of the Office Memorandum dated 04.02.2020 issued by the State Government in the Personnel Department, which is holding the field, as on date, can be adverted to :-

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It is therefore directed that all the Senior Most Secretaries of all the Departments shall ensure that the Memorandum of Charges / Charge Sheet is served on the delinquent officer / employee before the expiry of three months of period from the date of issuance

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of Order of suspension. They shall also ensure that the currency of the 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 within 3 [three] months of suspension, a reasoned Order must be passed for the extension of the suspension, wherever necessary.

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The officer proposing for suspension shall also ensure that the charges are framed and submitted to the Disciplinary Authority within two weeks from the date of passing order of suspension.

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After issuance of Memorandum of Charges / Charge-Sheet, the Senior Most Secretaries shall undertake a review within 6 months as regards the desirability to further continue with the suspension order.

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Senior Most Secretaries will be held responsible if cases of suspension in their respective Departments are not dealt with and reviewed accordingly.

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From a bare reading of the afore-quoted parts of the Office Memorandum dated 04.02.2020, it is evident that even after the Memorandum of Charges / Charge-Sheet is served within three months of suspension, a reasoned order must be passed for the extension of the suspension whenever necessary. The Office Memorandum has further mentioned that after issuance of Memorandum of Charges / Charge-Sheet, the senior most secretaries shall undertake a review within a period of six months as regards the desirability to further continue with the Suspension Order. The Office Memorandum has further envisaged that the senior most secretaries would be held responsible if cases of suspension in the respective departments are not dealt with and reviewed accordingly.

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The submissions advanced on behalf of the official respondents that it is

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the senior most secretary in the department who is only mandated to undertake a review within a period of six months is found not acceptable. The reason is that in Ajay Kumar Choudhary [supra] and in the Office Memorandum, it has been clearly set forth that if the memorandum of Charges / Charge-Sheet is served within a period of three months from the date of suspension, a reasoned order must be passed for the extension of the suspension. The senior most secretary of a department may not be the disciplinary authority/appointing authority/controlling authority who has passed the order of suspension and it is the disciplinary authority/appointing authority/controlling authority who has passed the Order of Suspension has been cast with the obligation to review the period of suspension within a period of three months. In some situation, the senior most secretary may be the appellate authority.

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It is also settled that for extending the currency of an order, the order for extension has to be passed during the currency of the said order. Therefore, the currency of an order for extending its period is not to be passed after the period is over. From such standpoint, the Order dated 06.06.2025 whereby the period of suspension of the petitioner was extended beyond a period of three months is not found sustainable. The period of three months from 28.11.2024 expired in February, 2025. The authority who had passed the Order of Suspension, that is, the respondent no. 3 ought to have passed a reasoned order within a period of three months from 28.11.2024. No material has been placed before this court and nothing has been contended to the effect that any reasoned order was passed within a period of three months from 28.11.2024 to extend the currency of suspension period beyond three months. Thus, there was no valid order extending the period of suspension for the period from three months to

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six months which expired on 28.05.2025.

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In the light of the discussion made above and for the reasons assigned, this Court finds that a right has accrued to the petitioner for seeking a direction for reinstatement of his service on account of the fact that due to failure on the part of the competent authority to pass a reasoned order within a period of three months from 28.11.2024 and the period of suspension beyond a period of three months from 28.11.2024 is found to be invalid and non-est is law. In view of the law declared in the case of Ajay Kumar Choudhary [supra] and implemented by the State Governments through the Office Memorandum dated 04.02.2020, the subsequent review carried out for extending the currency of the suspension period pursuant to the Order dated 28.11.2024 would be of no consequence.

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The Division Bench in Rakibuddin Ahmed [supra] has noticed that the decision in Ajay Kumar Choudhary [supra] was with regard to a case where suspension order was issued pending drawal of disciplinary proceeding, which is akin to a suspension order passed under Rule 6[1][a] of the 1964 Rules, and not a case of deemed suspension which goes into effect under Rule 6[2] of the 1964 Rules. The Division Bench in Rakibuddin Ahmed [supra] has held that the principles laid down in Ajay Kumar Choudhary [supra] cannot be restricted to an order of suspension issued only in contemplation of drawal of disciplinary proceeding and not for deemed suspension. Examining the issue from the perspective of consequence and effect of suspension, the Division Bench has observed that the consequence and effect of suspension are same in both the cases and therefore, it is incumbent on the Department to make

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periodic review within a period of three months to decide whether the suspension period is required to be extended or not by assigning reasons. In view of the decisions in Rakibuddin Ahmed [supra], the principle laid down in Ajay Kumar Choudhary [supra] is found applicable to both for matters of suspension issued bot under Rule 6[1][a] and Rule 6[2] of the 1964 Rules. In view of such position, the decision in Sudhir Kr. Paul vs. The State of Assam and others , placed by Mr. Baruah, learned Junior Government Advocate does not require any discussion.

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The Order of Suspension passed in respect of the petitioner not having been reviewed in terms of the direction passed by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary [supra] and the Office Memorandum dated 04.02.2020, this Court is of the clear view that the same has lost its force and accordingly, the same cannot be said to be in currency any further. Consequently, the petitioner is required to be reinstated in service. Accordingly, it is directed that the respondent authorities shall reinstate the petitioner in service within a period of 15 [fifteen] days from the date of submission of a certified copy of this order by the petitioner at the office of the respondent no. 3.

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If the respondent authorities find that the continuation of the petitioner in the post of Superintendent, Food, Public Distribution and Consumer Affairs at Dhubri would be against the public interest and administrative exigency and the post is of sensitive nature, following the observations made in Ajay Kumar Choudhary [supra] in paragraph 21, the respondent authorities will be at liberty to transfer the petitioner to a place so as to sever any local or personal

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contact that he may have and which he may like to misuse for obstructing the inquiry/investigation, if any, against him. In other words, the respondent authorities are to reinstate the petitioner and thereafter, are also at liberty to transfer him to a place to keep him out of mischief’s range.

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The writ petition stands allowed to the extent indicated above. No cost.

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JUDGE

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Comparing Assistant

Ashok Kumar Sarma v. the State of Assam and 4 Ors.

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Ashok Kumar Sarma v. the State of Assam and 4 Ors.

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