Bipul Mech Vs the State of Assam and 3 Ors.

3:THE DISTRICT ELEMENTARY EDUCATION OFFICER NAGAON ASSAM PIN-782001 4:THE BLOCK ELEMENTARY EDUCATION OFFICER LAOKHOWA EDUCATION BLOCK P.O.- HAIBORGAON PIN-782002 DIST- NAGAON ASSA

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Advocate for the Petitioner : M K BORAH,

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Advocate for the Respondent : SC, ELEM. EDU,

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Page No.# 2/8

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BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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Date : 07.11.2025

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Heard Mr. M.K. Borah, learned counsel for the petitioner and also heard Ms. N. Phukan, learned standing counsel, Education (Elementary) Department, appearing for the respondents.

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2. In this petition, under Article 226 of the Constitution of India, the petitioner has prayed for reinstating him in service with all consequential benefits and also for setting aside the suspension order, dated 19.07.2023, (Annexure-3) and the show cause Notice, dated 03.04.2025 (Annexure-7) passed and issued by the Director of Elementary Education, Assam.

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3. The undisputed facts, leading to filing of the present petition are briefly stated as under:-

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"The petitioner was working as Junior Assistant in the establishment of the Block Elementary Education Officer, Lawkhowa Educational Block, Nagaon. He was arrested on 17.07.2023, in connection with an FIR lodged by one Assistant Teacher of Pub-Singimari Muktab School, against the petitioner for demanding and accepting bribe of Rs.5,000/- for transfer related work of the informant of the said FIR. The said case was registered as Anti-Corruption Branch (ACB) P.S. Case No.52/2023, under Section 7(a) of the Prevention of Corruption Act, 1988.

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Then the respondent No.2, vide impugned Order (Annexure-3) dated 19.07.2023, had placed the petitioner under suspension

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Page No.# 3/8

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w.e.f. 17.07.2023. The petitioner, thereafter, was released on bail by this Court, vide Order dated 23.08.2023, passed in B.Α. No.2602/2023.

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The petitioner, upon being released on bail, in connection with ACB P.S. Case No.52/2023, on 02.11.2023, preferred a representation through the respondent No.3 and the respondent No.4, before the respondent No.2, for cancellation of the suspension order, dated 19.07.2023, and to reinstate him in service. But, the same failed to evoke any response.

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Thereafter, on 03.04.2025, after a lapse of more than a years, the respondent No.2 had issued the impugned show cause Notice (Annexure-7) to the petitioner, which is contrary to guidelines of the Hon'ble Apex Court as well as Office Memorandum, dated 04.02.2020, issued by the Chief Secretary to the Government of Assam, Personnel (B) Department and the impugned suspension order dated 19.07.2023, is yet to be reviewed by the respondent authorities and continued for more than a year without any further communications/ actions from the respondent authorities. There is no justified ground to continue with the impugned suspension order dated 19.07.2023, of the petitioner by the respondent authorities for such a long period.

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Being aggrieved, the petitioner has approached this Court by filing the instant Writ Petition, seeking the relief(s) as aforesaid, being the same illegal and arbitrary and violative of Article 14, 16 and 21 of the Constitution of India.”

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Page No.# 4/8

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4. Mr. Borah, learned counsel for the petitioner submits that the petitioner was placed under suspension vide order dated 19.07.2023, with effect from his date of arrest i.e. on 17.07.2023. But, since then the order has neither been reviewed by the respondent authorities, by issuing a speaking order nor revoked. Mr. Borah also submits that on 03.04.2025, after a lapse of more than a years, the respondent No.2 had issued the impugned show cause Notice to the petitioner, without reviewing the suspension order in accordance with the law laid down by Hon’ble Supreme Court in Ajay Kumar Choudhary vs. Union of India Through its Secretary & Anr., reported in (2015) 7 SCC 291. Mr. Borah also submits that the suspension order dated 19.07.2023, is illegal and arbitrary and as such, Mr. Borah has contended to set aside the same and also to reinstate the petitioner with immediate effect, with all consequential benefits.

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5. Per contra, Ms. N. Phukan, learned standing counsel for the respondent authorities, pursuant to an order of this Court, dated 24.10.2025, had obtained necessary instruction and apprised this Court that the suspension order has not been reviewed within 90 days and has also not been extended. However, she submits that contemplating a disciplinary proceeding the respondent No. 2 had issued show-cause notice to the petitioner under Rule 9 of the Assam Service (Discipline and Appeal) Rules, 1964.

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6. Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record. I have also gone through the decision of Hon’ble Supreme Court in Ajay Kumar Choudhary(supra).

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7. It appears that the petitioner was placed under suspension vide order dated 19.07.2023 (Annexure-3), with effect from 17.07.2023. But, admittedly

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Page No.# 5/8

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the said suspension order has neither been reviewed and being extended by a speaking order nor been revoked. It also appears that in the meantime, showcause notice was issued to the petitioner, vide letter dated 03.04.2025 (Annexure-7), contemplating departmental proceeding against him.

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8. Further, having suspended the petitioner vide impugned order, dated 19.07.2023, w.e.f. 17.07.2023, on which he was arrested by the police, in connection with Anti-Corruption Branch (ACB) P.S. Case No.52/2023, under Section 7(a) of the Prevention of Corruption Act, 1988, the said suspension order ought to have been reviewed within a period of 90 days by the respondent authorities. And if we count the period of 90 days from 17.07.2023, the period of 90 days had elapsed on 16.10.2023. But, admittedly, the suspension order was not reviewed till date. No disciplinary proceeding was also drawn up against him by issuing a charge memo. However, only a Show Cause Notice (Annexure-7) was issued on 03.04.2025, contemplating disciplinary proceeding against him.

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9. It is to be noted here that Sub-Rule (6) and (7) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, deals with extension of suspension order and validity of the same. The said Rules read as under:-

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"(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which is competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall

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Page No.# 6/8

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be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.

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(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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10. These Rules are, however, not applicable in case of the petitioner, since the Assam Services (Discipline and Appeal) Rules, 1964 has already been put in place and holding the field. Though, Rule 6 deals with suspension, yet, the Rule is silent in respect of review of the suspension order within a period of 90 days.

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11. But, it is well-settled in the case of Ajay Kumar Choudhary(supra), that currency of a suspension order should not be extended beyond three months, if within this period the memorandum of charges/charge-sheet is not served on the delinquent officer/employee; and if the memorandum of charges/chargesheet is served, a reasoned order must be passed for the extension of the suspension.

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12. It also appears that the Chief Secretary to the Government of Assam, Personnel (B) Department had issued one Office Memorandum, bearing No. ABP.13/2018/Pt/35, dated 04.02.2020, pursuant to the direction of this Court in its order dated 30.11.2017, in a series of writ petitions, the lead case being WP(C) No. 6465/2017, wherein a direction was issued indicating the law laid down by Hon'ble Supreme Court in Ajay Kumar Choudhary (supra) to the effect that the disciplinary authorities are to strictly comply with the requirement to issue the Memorandum of Charges/Charge-Sheet before the expiry of three

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Page No.# 7/8

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months from the date of issuance of order of suspension.

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12.1. It is also provided 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 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 three months of suspension, a reasoned order must be passed for the extension of the suspension, wherever necessary.

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12.2. It is also provided that 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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12.3. Further, it is provided that after issuance of Memorandum of Charges/Charge-Sheet, the senior most Secretaries shall undertake a review within six months as regards the desirability to further continue with the suspension order.

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13. In the instant case, admittedly, the show-cause notice (Annexure-7) was issued to the petitioner only on 03.04.2025, contemplating disciplinary proceeding against him. No charge memo was issued to him within the stipulated period of 90 days, as mandated in the case of Ajay Kumar Choudhary(supra) , and by the Office Memorandum dated 04.02.2020, issued by the Chief Secretary to the Government of Assam, Personnel (B) Department. It was issued only on 03.04.2025, vide Annexure-7. And having not furnishing the charge-sheet/ memorandum of charges, within the period of three months

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Page No.# 8/8

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and having not been extended the suspension order within the stipulated period of 90 days, with effect from 17.07.2023, the date from which the suspension order was given effect to, this Court is of the view that the impugned order of suspension, dated 19.07.2023, is illegal and arbitrary and as such, the same failed to withstand the legal scrutiny.

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14. In the result, this Court finds sufficient merit in this petition and accordingly, the same stands allowed. The impugned suspension order dated 19.07.2023, Annexure-3, to the petition, stands set aside and quashed. Consequently, the respondent authorities shall have to reinstate the petitioner, with all consequential benefits, to which he is legally entitled to.

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15. However, it is provided that the departmental proceeding, being contemplated against the petitioner, by issuing show cause notice, dated 03.04.2025, Annexure-7, shall be taken to its logical conclusion. And the said exercise has to be carried out as soon as practicable, preferably with in a period of six month from the date of receipt of certified copy of this order. The respondent No.2 shall also be at liberty to consider the posting/transfer of the petitioner to any other office under his/her jurisdiction, so that influencing of the witnesses, either in criminal case or in the disciplinary proceeding contemplated against him, could be avoided.

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16. The petitioner shall obtain a certified copy of this order and place the same before the respondent authorities within a period of one week from today. The parties have to bear their own costs.

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JUDGE

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Bipul Mech v. the State of Assam and 3 Ors.

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