Junu Kalita Vs the State of Assam and 2 Ors.

The gist of the case is that the petitioner had been arrested on the basis of an FIR lodged before the Officer-in-Charge of the ACB Police Station, Guwahati, on 04/10/2023 with the allegations that the petitioner had demanded Rs.10, 000/- for providing contract license.

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The petitioner was arrested on 05.10.2023 in a trap case and was remanded to custody. The petitioner was therefore, placed under deemed suspension for having extended a period of 48 hours in custody. The deemed suspension came into effect from 05.10.2023, itself. A showcause notice was issued to the petitioner 06.11.2023. The petitioner was released on bail on 16.11.2023 and she submitted her show-cause reply on 29.11.2023. The present status of the Disciplinary proceedings is not before this Court. The learned counsel for the petitioner has also failed to furnish the details of the stage of the disciplinary proceedings initiated against the petitioner.

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On 18.11.2023, the petitioner had filed her representation praying for a re-instatement in service but the same has gone un-attended. The period of 90 days from the date of deem suspension expired on 06.01.2024. Till such date competent authority did not review the case of the petitioner with regard to the requirement of continuing the suspension during the period of the departmental enquiry or the pendency of the criminal case.

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The learned counsel for the petitioner has submitted that although a charge-sheet has been served upon the petitioner and the departmental proceeding is ongoing, there was a mandatory requirement on the part of the respondent authority to review the case of the petitioner and pass orders either extending the suspension or revoking the same.

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6. The learned counsel for the petitioner has submitted that it is a settled position in law that even in the event the charge-sheet is submitted, the departmental authority would remain liable to review the case of the petitioner and decide upon the requirement of continuing the suspension. He has referred to the case of “ Ajay Kr. Choudhury vs. Union of India reported in 2015 (7) SCC 291.”

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The learned counsel for the respondent fairly submitted that as per instructions received by him the case of the petitioner was not taken up for review regarding the requirement of keeping her under suspension during the period of the disciplinary proceeding or of the criminal proceeding against her.

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In case of deemed suspension, as held in the case of “ Dipak Mali vs. Union of India, reported in (2010)2SCC 222,” expired in the period of suspension 90 days is to be counted on and from the date on which the petitioner is released on bail or on and from date which he informs the department about his release on bail whichever is later.

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In the present case, even if it is assumed that the department had been informed about the release of the petitioner on his submitting response to the show-cause notice, the order of suspension again not been reviewed, it cannot survive beyond the particular period.

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This Court also cannot lose sight of the judgment and order of the “ Apex Court in case K.C. Sareen vs. Union of India, reported in (2001) 6 SCC 584 ” which dealt with the cases in which allegations of corruption where levelled against serving employees of the Government. Paragraph -12 of K.C. Sareen (supra) read as follows:

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“ Corruption by public servants has now reached a monstrous dimension in

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India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and

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sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.”

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Therefore, in the present case, this Court interferes with the continued suspension of the petitioner only on the ground that the period of 90 days had lapsed before a review has been conducted regarding her suspension. The petitioner is required to be re-instated in service forthwith. However the competent authority shall be at liberty to consider and pass necessary orders regarding the requirement of restraining the petitioner from attending official duties at the place of occurrence and/or of reposting her to some other location, if so necessary, to aid the completion of the disciplinary proceeding. The department shall keep in view that there is also a criminal proceeding pending against her and the petitioner should not be put to a disadvantage in case her place of posting is changed.

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The writ petition is accordingly disposed of. No cost.

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JUDGE

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Comparing Assistant

Junu Kalita v. the State of Assam and 2 Ors.

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