Sri Debananda Borah Vs the State of Assam and 4 Ors.

Mr. S. Dutta, learned Standing Counsel, Revenue & Disaster Management Department, appearing for the respondent nos.1 and 2 and Mr. A. Chakraborty, learned Government Advocate, appearing for the respondent nos.3 and 4.

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2. The petitioner by way of instituting the present writ petition has assailed the prolonged suspension occasioning in his case after he was placed under suspension vide issuance of order dated 18.12.2021.

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3. As projected in the writ petition, an FIR was lodged against the petitioner alleging demand made by him for bribe of an amount of Rs.3,000/- (Rupees Three Thousand). The petitioner at the relevant point of time was working as a Lat Mondal in the establishment of the Deputy Commissioner, Hojai. The petitioner after lodging of the said FIR was placed under arrest on 17.12.2021. The petitioner having remained under detention for more than 48 (forty eight) hours, the Deputy Commissioner, Hojai, vide order dated 18.12.2021, proceeded to place the petitioner

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under suspension with immediate effect invoking the provisions of Rule 6 (1) of the Assam Services (Discipline & Appeal) Rules, 1964. The petitioner was also authorized his subsistence allowances in accordance with the provisions holding the field.

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The Additional Commissioner i/c Hojai Sub-Division thereafter, vide an order dated 12.07.2023, proceeded to re-instate the petitioner in his service by revoking the order of his suspension. However, vide an order dated 20.07.2023, the re-instatement of the petitioner came to be revoked with retrospective effect i.e., w.e.f., 12.07.2023.

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Thereafter, a show-cause notice was issued to the petitioner on 18.10.2023, instituting a Departmental Proceeding against the petitioner. The Departmental Proceeding as instituted against the petitioner, is being proceeded with, however, the petitioner continues to remain under suspension.

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Being aggrieved, the petitioner had instituted the present writ petition.

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4. I have heard the learned counsel for the parties and perused the materials coming on record.

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5. The petitioner was placed under suspension vide order dated 18.12.2021, issued by the Deputy Commissioner, Hojai. From the materials brought on record, it is seen that the Departmental proceeding against the petitioner was instituted only on 18.10.2023 i.e., after lapse of about 02 (two) years from the date he was placed under suspension. It is projected that the said charge-sheet was so laid before the Trial Court only on 18.04.2022.

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6. The issue with regard to prolonged continuance of an order of suspension

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was considered by the Hon’ble Supreme Court in the case of Ajay Kumar

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Choudhary Vs. Union of India, reported in (2015) 7 SCC 291 .

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7. The conclusions drawn by the Hon’ble Supreme Court in paragraph 21 of the

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said decision, being relevant to the show-cause notice in the present writ petition, the

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same is extracted hereinbelow :

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“ 21. We, therefore, direct that the currency of a 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, a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the person concerned to any department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that the previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time-limits to their duration. However, the imposition of a limit on the period of suspension has not been discussed in prior case law, and would not be contrary to the interests of justice. Furthermore, the direction of the Central Vigilance Commission that pending a criminal investigation, departmental proceedings are to be held in abeyance stands superseded in view of the stand adopted by us.”

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8. A perusal of the conclusions reached by the Hon’ble Supreme Court in the case

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of Ajay Kumar Choudhary (supra), would reveal that an order of suspension would remain in currency only for a period of 3 (three) months, from the date of issuance of the same, in the event, no show-cause notice, instituting a Departmental proceeding against the delinquent, was so issued. It further stipulates that in the event, a Departmental proceeding is so instituted, within the period of 3 (three) months from the date of issue of the order of suspension, the Respondents authorities are to pass an order, after reviewing the necessity for continuing the delinquent under suspension.

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9. This Court finds that the Respondent authorities had issued the show-cause

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notice to the petitioner, instituting a Departmental proceeding against him, only on 18.10.2023. The said show-cause notice, admittedly, was issued beyond the period of 3 (three) months, mandated for continuance of an order of suspension, prior to institution of a Departmental proceeding, in terms of the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra). The Departmental proceedings against the petitioner, admittedly, having been instituted after a lapse for more than 3 (three) months, from the date of issuance of the order of suspension of the petitioner, this Court is of the considered view that the order of suspension of the petitioner had lost its force and accordingly, cannot be held to be subsisting, as on date. The petitioner, consequently, would be entitled to be reinstated in his services.

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10. At this stage, this Court would notice that the competent authority had revoked the order of suspension of the petitioner vide issuance of an order dated 12.07.2023, however, before the same could be implemented, the said order dated 12.07.2023, came to be revoked vide order dated 20.07.2023. It is also to be noticed that the Disciplinary Authority of the petitioner in the meanwhile had changed and presently it is the Director of Land Records, who is the Disciplinary Authority of the petitioner.

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11. Mr. S. Dutta, learned Standing Counsel, Revenue & Disaster Management Department, appearing for the respondents, on instructions has submitted that in the records no reasons have been assigned for the issuance of the order dated 20.07.2023, revoking the re-instatement effected in respect of the petitioner, herein.

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12. However, this Court is not proceeding to examine the validity of the order dated

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20.07.2023, in absence of a challenge made, thereto, in the present writ petition

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13. In view of the said discussion, this Court is of the considered view that the continuance of the suspension of the petitioner being in clear violation of the law laid down by the Hon’ble Supreme Court in case of Ajay Kumar Choudhary (supra), the said order of suspension of the petitioner is held to be not subsisting and accordingly, the respondents are directed to re-instate the petitioner in his services.

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14. The order towards reinstatement of the petitioner in his services, be issued by the Director of Land Records, Assam, immediately, on receipt of a certified copy of this order.

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15. Having directed for the re-instatement of the services of the petitioner, this Court further provides that the Disciplinary Authority of the petitioner is at liberty, to post the petitioner to any other place, on his reinstatement, so as to sever any local or personal contact that he may have and which he may misuse for obstructing the proceedings presently underway against him.

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

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JUDGE

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Sri Debananda Borah v. the State of Assam and 4 Ors.

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Sri Debananda Borah v. the State of Assam and 4 Ors.

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