Abhijit Baruah Vs the State of Assam and 2 Ors.

Heard Mr. N Borah, learned counsel for the petitioner. Also heard Mr. I Borthakur, learned standing counsel, Excise Department, Assam, appearing for respondent no. 1 & 2 and Mr. R Dhar, learned Addl. Senior Government Advocate appearing for respondent no. 3.

¶19

The petitioner, in the present proceedings, has assailed the prolonged suspension, occasioning in his case, after he was placed under suspension, vide issuance of an order dated 09.06.2025. The petitioner alleges that neither a departmental proceeding was instituted against the petitioner nor the order of suspension was reviewed within a period of 90 (Ninety) days from the date of issuance of the same.

¶20

The facts in brief, requisite for adjudication of the issues arising in the present writ petition is noticed, as under.

¶21

The petitioner, while working as an Excise Constable, came to be placed under detention in connection with A.C.B Police Station Case no. 36/2025 registered under Section 61(2)(a) BNS, 2023, r/w Section 7 (a) of the Prevention of Corruption Act, 1988.

¶22

The allegation, against the petitioner, in the criminal case, instituted against him, was that the petitioner had demanded bribe from the informant and was caught red-handed while receiving the bribe amount. On being placed under arrest, the Commissioner of Excise, Assam, vide order dated 09.06.2025, noticing the fact that the petitioner was placed under arrest, in connection with the said A.C.B Police Station Case no. 36/2025, proceeded to place him under suspension, by invoking the provisions of Rule 6 (1) (c) of the Assam Services (Discipline & Appeal) Rules, 1964.

¶23

The petitioner was, thereafter, enlarged on bail by the Court of the Ld.

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¶25

Special Judge, Guwahati, Assam, vide an order dated 30.06.2025. On being enlarged on bail, the petitioner, vide his communication dated 04.07.2025, approached the respondent authorities informing the fact that he had been enlarged on bail and prayed that he be permitted to resume his services as Excise Constable.

¶26

The prayer of the petitioner, not being considered and no further departmental proceedings having been instituted against him, the criminal proceedings, also not having been concluded, given the fact that the petitioner was placed under prolonged suspension, he has instituted the present writ petition.

¶27

Mr. N Borah, learned counsel for the petitioner, after reiterating the facts noticed, hereinabove, has, at the outset, highlighted that although, in the order dated 09.06.2025, it has been projected that the petitioner was placed under suspension by invoking provisions of Rule 6 (1) (c) of the said Rules of 1964, he submits that a perusal of the contents of the suspension order would reveal that the same was so passed only by noticing the arrest of the petitioner and his detention behind bars for more than 48 hours. Accordingly, Mr. N Borah, learned counsel for the petitioner, submits that the order of suspension of the petitioner ought to be deemed to have been so issued invoking the provisions of Rule 6 (2) of the Rules of 1964. Mr. N Borah, learned counsel for the petitioner, by referring to the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India reported in (2015) 7 SCC 291, submits that the said decision would also apply in respect of a suspension effected by invoking the provisions of Rule 6 (2) of the said Rules of 1964. Mr. N Borah, learned counsel for the petitioner, submits that no show-cause notice having been issued to the petitioner within the period of 3 (Three) months, so mandated during which an order of suspension is held to be in currency, from the date of suspension of the petitioner and/or from the date when the petitioner had informed the respondent authorities about he being enlarged on bail by the

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¶29

Court of Ld. Special Judge, Guwahati, Assam, the order of suspension, issued in respect of the petitioner, must be deemed to have lost its force and the petitioner would be required to be reinstated in his services.

¶30

Per contra, the learned counsel for the respondents, have submitted that the petitioner having been placed under suspension invoking the provisions of Rule 6 (1) (c) of the Rules of 1964, the decision of the Hon’ble Supreme Court in the case of the Ajay Kumar Choudhary (Supra), would have no application in the facts of the present case and the petitioner is to be deemed to have placed under suspension till completion of the investigation, enquiry or trial in the criminal proceedings, now pending against the petitioner. Accordingly, they submit that the claim made in the present writ petition would not mandate acceptance by this Court.

¶31

The facts noticed, hereinabove, are not in dispute.

¶32

The petitioner, in pursuance to his arrest, in connection with A.C.B Police Station Case no. 36/2025, on 06.06.2025, was placed under suspension, vide issuance of an order dated 09.06.2025.

¶33

On a perusal of the order dated 09.06.2025, this Court finds that the said order was so issued by the Commissioner of Excise, Assam, invoking the provisions of Rule 6 (1) (c) of the Assam Services (Discipline & Appeal) Rules, 1964. The provisions of Rule 6 (1) and 6 (2) of the Rules of 1964, being relevant, the same is extracted, hereinbelow:

¶34

" 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-

¶35

(a) where a disciplinary proceeding against him is contemplated or is pending; or

¶36

(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

¶37

(c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

¶38

(2) A Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours

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¶40

shall be deemed to have been suspended with effect from the date of such detention, by an order of the Appointing Authority and shall remain under suspension until further orders.

¶41

Provided that where the detention is made on account of any charge not connected with his position as a Government servant or continuance in office is not likely to embarrass the Government ог Government servant in the discharge of his duties or the charge does not involve moral turpitude, the Appointing Authority may vacate the suspension order made or deemed to have been made when he is released on bail or is not otherwise in custody or imprisonment.”

¶42

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 on 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.

¶43

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.

¶44

In the present case, admittedly, there was a criminal case instituted against the petitioner and the same is still pending at the stage of investigation. A perusal of the order dated 09.06.2025 reveals that the petitioner was, in fact, placed under suspension, in connection with his arrest in A.C.B Police Station Case no. 36/2025. The order dated 09.06.2025, being relevant, is extracted, hereinbelow:

¶45

“ O R D E R

¶46

Shri Abhijit Boruah, Excise Constable posted at Biswanath district is hereby placed under suspension with immediate effect in connection with his arrest in ACB PS Case No.36/2025 by the Directorate of V&AC, Assam U/S-61(2)(a) BNS 2023, R/W Sec 7(a) of the PC Act, 1988 (as amended in 2018) on 06/06/2025 as per Rule 6(1)(c) of the Assam Services (Discipline and Appeal) Rules, 1964.

¶47

Sd/-Commissioner of Excise, Assam Housefed Complex, Dispur, Ghy-6. Dated Guwahati, the

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9th June/2025.”

¶50

A perusal of the said order dated 09.06.2025, would reveal that the petitioner was, in fact, placed under suspension only on account of his arrest in connection with A.C.B Police Station case no. 36/2025. However, for the purpose, the respondent authorities have invoked the provisions of Rule 6 (1) (c) of the said Rules of 1964. This Court, on perusal of the contents of the order of suspension dated 09.06.2025, holds the same to have been so issued by invoking the provisions of Rule 6 (2) of the said Rules of 1964. It is a settled position of law that the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (Supra) also applies to a deemed suspension occasioning on account of the delinquent being placed under arrest and having remained under detention for more than 48 hours.

¶51

The Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (Supra) , particularly in paragraph 21, had held a follows :

¶52

“ 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 recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise 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

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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.”

¶55

A perusal of the provisions of paragraph 21 of the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (Supra) , would reveal that an order of suspension would remain in currency for a period of 3 (Three) months from the date of issuing of the same, in the event, no show-cause notice, instituting a departmental proceeding against the delinquent, was so issued. It further stipulates in the event a departmental proceeding is so instituted, the respondent authorities are to pass an order after reviewing the necessity for continuing the delinquent under suspension. In the case on hand, even it if is considered that the period of 3 (Three) months, as mandated in the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (Supra), is to be deemed from the date the petitioner had intimated his superiors of his release form detention i.e. on 04.07.2025, this Court finds that no departmental proceedings came to be instituted against the petitioner within a further period of 3 (Three) months, from the date the petitioner had submitted his intimation about his release from detention.

¶56

In view of the above conclusions drawn by this Court, this Court is of the considered view that the order of suspension of the petitioner not having been processed in terms of the law laid down by the Hon’ble Supreme Court in paragraph 21 of its decision in the case of Ajay Kumar Choudhary (Supra) , the order of suspension of the petitioner has lost its force and the petitioner would be mandated to be reinstated in his services.

¶57

Accordingly, the petitioner is directed to be reinstated in his services, forthwith. On such re-instatement of the petitioner in his services, it would be open to the respondent authorities to post the petitioner against any other post and/or at any other place other than, the post and place from, wherein, the petitioner was working at the time of his suspension, in terms

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of the liberty granted to the employers in this connection in paragraph 21 of the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (Supra) .

¶60

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

¶61

JUDGE

¶62

Comparing Assistant

Abhijit Baruah v. the State of Assam and 2 Ors.

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Abhijit Baruah v. the State of Assam and 2 Ors.

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