Md. Abdul Malek Vs the State of Assam and 4 Ors.

1. Heard Mr. M.K. Hussain, learned counsel for the petitioner and Ms. G. Hazarika, learned Government Advocate, Assam for the respondent No.1. Also heard Mr. N.J.Khataniar, learned Standing counsel, Secondary Education, Assam for the respondent Nos. 2 to 4.

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2 . The case of the petitioner is that he was appointed as an Assistant Teacher of Geruati High School, Nagaon. By an order dated 23.10.2024, the petitioner was placed under suspension with immediate effect pending drawl of Departmental proceeding for his active involvement in political activities by participating in a political rally associated with Bye-Election of the Assam Legislative Assembly for Samaguri LAC, in support of a particular political party which is a violation of the MCC guidelines and service conduct rules.

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3 . This Court under its order dated 06.02.2025 sought for complete instruction from the respondent authorities.

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4 . Mr. Khataniar, learned Standing counsel, Secondary Education Department, on instruction, submits that the suspension order was not reviewed.

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5 . Mr. Hussain, learned counsel for the petitioner relying on the judgment of the Hon’ble Apex Court passed in the case of Ajay Kumar Choudhary Vs. Union of India , reported in (2015) 7 SCC 291 as well as the relevant provisions of the Assam Services (Discipline and Appeal) Rules, 1964 submits that the order of suspension dated 23.10.2024 not being reviewed within 90 (ninety) days needs to be set aside and quashed and the petitioner should be reinstated in service forthwith.

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6 . 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 (supra) 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 incumbent is required to be placed under further suspension or not.

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7. 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, non-compliance 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 as regards such an invalid order of suspension, any such subsequent extension of the same cannot revive such suspension order.

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8 . As the impugned suspension order dated 23.10.2024 was neither reviewed before the expiry of 90 (ninety) days from the date of its issuance nor any memorandum of charges had been served on the petitioner within the said period of 90 (ninety) days from the date of his suspension, therefore, the impugned order of suspension of the petitioner dated 23.10.2024 being invalid in law and lapsed, cannot remain effective after its period of 90 (ninety) days.

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9. In view of the aforesaid, the impugned suspension order dated 23.10.2024, is hereby set aside and quashed and this Court directs the respondent authorities to reinstate the petitioner forthwith upon receipt of a certified copy of the instant order.

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10. It is also made clear that the respondent authorities would be at liberty to transfer the petitioner to any of its offices within the State.

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11 . Needless to say that the employer can have right to exercise its powers under Rule 6 (1)(c) of the Assam Services (Discipline and Appeal) Rules, 1964, if justification is available to take such course of action.

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With the above observations and directions, the instant writ petition stands disposed of.

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JUDGE

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Md. Abdul Malek v. the State of Assam and 4 Ors.

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Md. Abdul Malek v. the State of Assam and 4 Ors.

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