Kamaleswar Roy Vs the State of Assam and 5 Ors.

Heard Mr. J I Borbhuiya, learned counsel for the petitioner. Also heard Mr. P Nayak, learned Additional Advocate General, appearing for the respondent Nos. 1, 2, 4 & 6 and Mr. A Chakraborty, learned Government Advocate, appearing for the respondent Nos. 3 & 5.

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2. The petitioner by way of instituting the present writ petition has raised a grievance with regard to the prolonged suspension ensuing in his case after being placed under suspension in pursuance to an order dated 10.02.2025, issued by the District Commissioner, Dhubri.

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3. The petitioner was initially recruited as a Junior Accounts Assistant and was placed in the District Treasury Establishment, Dhubri vide an order dated 07.01.2009. On his such placement after selection, the petitioner was posted at Dhubri Treasury Office. Thereafter, the petitioner was transferred to Bilasipara Sub-Treasury vide an order dated 21.02.2009.

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The petitioner, thereafter, was considered for promotion to the post of Senior Accounts Assistant and he was so promoted in the year 2017 and on his such promotion, he was continued at Bilasipara Sub-Treasury. While the petitioner was continuing as a Senior Accounts Assistant at Bilasipara Sub-Treasury, an FIR came to be lodged by one Geeta Mushahary, Proprietor of M/s H.K. Muchahary on 02.03.2023, inter-alia, alleging, therein, about misappropriation of her final contract bill by the Executive Engineer, PWD, Bilasipara

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and the staff of his establishment.

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It was further alleged that the amount involved was transferred by the Treasury Officer, Bilasipara Sub-Treasury to an account, which was so opened in the name of the firm of the informant by utilizing forged documents. The said FIR came to be registered as Bilasipara P.S. Case No. 108/2023 under Sections 120(B)/406/409/420/34 IPC.

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As the petitioner was being sought out by the police, he approached this Court by way of filing an Anticipatory Bail application, being AB No. 2505/2023, seeking pre-arrest bail. This Court vide order dated 24.07.2023 was pleased to grant interim bail to the petitioner.

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During the pendency of the said Anticipatory Bail application, the Investigating Agency completed the investigation and laid its charge-sheet, being charge-sheet No. 132/2024 before the competent Court and therein, also implicated the petitioner. The charge-sheet was so laid under Sections 120(B)/406/409/419/420/34 IPC.

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This Court on being apprised about the filing of the charge-sheet, proceeded vide order dated 05.09.2024 to dispose of the said Anticipatory Bail application, requiring the petitioner to approach the learned Trial Court for regular bail. The petitioner approached the learned Trial Court for regular bail. The learned Trial Court on considering the prayer made by the petitioner, proceeded vide order dated 12.09.2024 to enlarge the petitioner on bail. The said criminal proceedings are presently pending disposal.

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Considering the fact that the petitioner was implicated by the Investigating Agency and arrayed as an accused in the above noted charge-sheet filed in the matter, the District Commissioner, Dhubri proceeded vide order dated 10.02.2025 to place the petitioner under suspension by invoking the provisions of Rule 6(1)(c) of the Assam Services (Discipline & Appeal) Rules, 1964.

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The said order of suspension having not being reviewed and a departmental proceeding not being instituted within a period of 90 (ninety) days, the currency of which an order of suspension is permissible to be so continued in terms of the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India, reported in (2015) 7

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SCC 291, the petitioner has instituted the present writ petition.

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4. Mr. J I Borbhuiya, learned counsel for the petitioner, after reiterating the facts, noticed hereinabove, has submitted that although, a departmental proceeding was instituted against the petitioner vide issuance of a show cause notice dated 12.08.2025, the petitioner having been placed under suspension on 10.02.2025, the show cause notice admittedly not having been issued within the mandated period of 3 (three) months, i.e., 90 days, with effect from the date of issuance of the order of suspension of the petitioner, the order of suspension had lost its force and the petitioner would be mandated to be reinstated in his service.

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4.1 Mr. J I Borbhuiya, learned counsel for the petitioner by further referring to the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (supra) has submitted that the respondent authorities, while issuing the show cause notice in the matter instituting a departmental proceeding against the petitioner, had not issued an order extending the period of suspension of the petitioner after carrying out a review, therein. He submits that the said order has not been passed till date.

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4.2 In the above premises, Mr. Borbhuiya, learned counsel for the petitioner submits that the order of suspension dated 10.02.2025, having lost its force, the same would mandate an interference from this Court, with a further direction to the respondent authorities to reinstate the petitioner in his services.

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5. Mr. A Chakraborty, learned Government Advocate, at the outset, basing on the instructions received by him in the matter from the District Commissioner, Dhubri has submitted that the departmental proceeding instituted against the petitioner vide issuance of a show cause notice dated 12.08.2025 was proceeded with by the respondent authorities and an enquiry as directed to be held in the matter was also concluded. He submits that the Enquiry Officer has already submitted his enquiry report, which was received by the disciplinary authority on 21.02.2026.

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5.1 Mr. Chakrabory, learned Government Advocate submits that the said enquiry report having come on record, the disciplinary authority now would proceed to consider the same and would conclude the departmental proceedings instituted against the petitioner by passing

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a reasoned order in the matter.

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5.2 Mr. Chakraborty further submits that the petitioner having been placed under suspension involving the provisions of Rule 6(1)(c) of the Rules of 1964, the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (supra) would not stand attracted to the facts of the present case.

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5.3 Mr. Chakraborty, submits that in view of the said developments taking place and the enquiry having already been completed, this Court at this stage would be pleased to refrain from passing any direction requiring the reinstatement of the petitioner into his service.

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6. I have heard the learned counsels for the parties and also perused the materials available on record.

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7. The facts as noticed, hereinabove, are not in dispute.

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8. The petitioner for the reasons, as noticed hereinabove, came to be placed under suspension vide issuance of an order dated 10.02.2025.

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9. On a perusal of the order dated 10.02.2025, this Court finds that the said order was so issued by the District Commissioner, Dhubri, invoking the provisions of Rule 6(1)(c) of the Assam Services (Discipline & Appeal) Rules, 1964. The said suspension having been effected under the provisions of Rule 6(1)(c) of the said Rules of 1964, the same being relevant, is extracted hereinbelow:

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“6. Suspension- (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 in the opinion of the authority aforesaid the 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 of any criminal offence is under

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investigation, inquiry or trial.”

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10. A perusal of the provisions of Rule 6(1)(c) of the said Rules of 1964 would reveal that 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, where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

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11. The provisions of Section 6(1)(c) of the 1964 Rules mandates that the competent authority can place a Government servant even when a criminal offence is in the stage of investigation, inquiry or trial.

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12. In the present case admittedly, there was a criminal case instituted against the petitioner and the same is presently pending trial. However, what is to be noted in the present case is that the respondent authorities, thereafter, proceeded to institute a departmental proceeding against the petitioner vide issuance of a show cause notice dated 12.08.2025.

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13. Accordingly, in the present case, the order of suspension that was initially passed under the provisions of Section 6(1)(c) of the 1964 Rules was converted to one under Section 6(1)(a), which postulates that a competent authority can place a Government servant under suspension also in contemplation of drawal of a departmental proceeding against him. Accordingly, this Court would proceed in the matter considering the suspension of the petitioner to be one having the flavor of Rule 6(1)(a) of the said Rules of 1964.

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14. Mr. J I Borbhuiya, learned counsel for the petitioner by projecting that the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (supra), being with regard to the period a Government servant can be placed under suspension, had submitted that the suspension, even if, effected under Rule 6(1)(c) of the said Rules of 1964, the decision of Ajay Kumar Choudhury (supra) will squarely apply when a plea of prolonged suspension is raised by the delinquent employee before this Court.

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15. This Court having already concluded to proceed in the matter by construing the

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suspension of the petitioner to be one, so effected in contemplation of drawal of departmental proceedings, the issue as to whether the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (supra) would also apply to a suspension issued invoking the provisions of Rule 6(1)(c) of the 1964 Rules, is not gone into and the same is kept open to be decided in an appropriate matter.

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16. The writ petitioner was placed under suspension vide an order dated 10.02.2025 and admittedly, within a period of 90 (ninety) days therefrom, the disciplinary proceeding was not instituted against the petitioner and accordingly, the said order of suspension would be required to be held to have lost its force.

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17. However, in respect of the petitioner, the respondent authorities had instituted a disciplinary proceeding against him, vide issuance of a show cause notice dated 12.08.2025 and during the pendency of the present proceedings, the enquiry in the departmental proceeding instituted against the petitioner has also been concluded with the Enquiry Officer submitting his enquiry report in the matter.

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18. This Court in the facts and circumstances of this case, at this stage, refrains from directing for reinstatement of the petitioner in his services by revocation of his order of suspension.

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19. Considering the facts and circumstances involved in the present matter, this Court passes the following directions:

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19.1 The enquiry report submitted by the Enquiry Officer to the District Commissioner, Dhubri shall be forwarded to the petitioner within a period of 7 (seven) days from the date of receipt of a certified copy of this order by the District Commissioner, Dhubri.

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19.2 The petitioner on receipt of the said enquiry report shall submit his representation, thereon, within a further period of 15 (fifteen) days from the date a copy of the Enquiry Report is served upon him.

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19.3 The District Commissioner, Dhubri on receipt of the representation from the petitioner within the period as mandated, hereinabove, shall proceed to consider the enquiry

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report, the materials coming on record in the enquiry as well as the representation submitted by the petitioner against the enquiry report and arrive at his conclusion in the matter and dispose of the disciplinary proceedings by way of passing an order, as mandated.

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19.4 In the event the petitioner after being served with the copy of the enquiry report does not submit his representation against the same within the period set out hereinabove, it will be open to the District Commissioner, Dhubri to proceed with the matter and by considering the enquiry report as well as the materials coming on record in the enquiry to draw his conclusion and pass appropriate orders in the matter.

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19.5. In the event the disciplinary authority fails to pass final orders on the disciplinary proceeding instituted against the petitioner, within 30 (thirty) days from the date of receipt of the representation from the petitioner, against the Enquiry Report and/or w.e.f. the lapse of 15 (fifteen) days from the date of service of the Enquiry Report upon the petitioner, as the case may be, the currency of the suspension order dated 10.02.2025, shall cease to have any effect and the petitioner would be required to be reinstated in his services against a post that would be so determined by the respondent authorities.

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

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JUDGE

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Kamaleswar Roy v. the State of Assam and 5 Ors.

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Kamaleswar Roy v. the State of Assam and 5 Ors.

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