Siba Prasad Saikia Vs the State of Assam and 5 Ors.

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GAHC010013682026

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2026:GAU-AS:8641

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/6321/2025

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SIBA PRASAD SAIKIA S/O LATE BIDYADHAR KALITA RESIDENT OF VILLAGE PULIBOR NEAR RESEARCH CENTRE P.O AND P.S- PULIBOR DISTRICT- JORHAT ASSAM PIN CODE- 785006

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VERSUS

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THE STATE OF ASSAM AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT (B) DEPARTMENT DISPUR GUWAHATI-06

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2:THE ADDITIONAL CHIEF SECRETARY TO THE GOVT OF ASSAM PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT DISPUR GUWAHATI- 06

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3:THE COMMISSIONER PANCHAYAT AND RURAL DEVELOPMENT ASSAM JURIPAR PANJABARI

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GUWAHATI- 37

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4:THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GUWAHATI- 29 5:THE BLOCK DEVELOPMENT OFFICER CENTRAL JORHAT DEVELOPMENT BLOCK CHIPAHIKHOLA JORHAT PIN- 785700 6:THE CHIEF EXECUTIVE OFFICER JORHAT ZILLA PARISHAD JORHAT PIN- 785001 -----------Advocate for : A KUNDU Advocate for : SC P AND R.D. appearing for THE STATE OF ASSAM AND 5 ORS.

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BEFORE

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HON’BLE MR. JUSTICE N. UNNI KRISHNAN NAIR

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ORDER

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12/06/2026

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Heard Mr. B M Deka, learned counsel for the petitioner. Also heard Mr. K Konwar, learned Additional Advocate General, appearing for the respondent Nos. 1, 2, 3, 5 & 6 and Mr. B Sarma, learned Standing counsel, Accountant General (A&E), Assam for the respondent No. 4.

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2. The petitioner by way of instituting the present writ petition, has prayed

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for a stay of the departmental proceeding instituted against him, till the disposal of the criminal proceedings instituted against him, on the same set of allegations. The petitioner has also presented a challenge to an order dated 16.02.2025, placing him under suspension, in pursuance to his arrest in connection with the criminal proceedings so instituted against him.

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

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The petitioner was initially appointed as a Junior Engineer in the Panchayat & Rural Development Department and posted in the said capacity at Jugijan Development Block, Nagaon. Thereafter, the petitioner was promoted to the post of Assistant Engineer, w.e.f. 05.05.2021. The petitioner, while working as an Assistant Engineer, vide order dated 12.03.2024, was transferred and posted as Assistant Engineer at Central Jorhat Development Block, Jorhat. While the petitioner was serving at Jorhat, an FIR came to be lodged against him on 05.02.2025, alleging that he had demanded a bribe from the informant for release of the informant’s contractual dues.

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The said FIR on being received by the ACB Police Station, a G.D. Entry came to be made in the matter. Thereafter, a trap was laid and the petitioner was arrested. Accordingly, ACB P.S. Case No. 12/2025 came to be registered against the petitioner under Section 7(a) of the Prevention of Corruption Act, 1988 (as amended in 2018).

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The petitioner on being arrested, was produced before the learned Trial Court and was remanded to 3 (three) days police custody. Thereafter, he was remanded to judicial custody. The petitioner, thereafter, submitted an application

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before the learned Trial Court for being enlarged on bail. The learned Trial Court, considering the materials coming on record as well as the length of detention already undergone by the petitioner, proceeded vide order dated 18.03.2025 to enlarge him on bail.

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In the meanwhile, the Additional Chief Secretary, Government of Assam, Panchayat & Rural Development Department, vide an order dated 16.02.2025, invoking the provisions of Rule 6(1) of the Assam Services (Discipline & Appeal) Rules, 1964 (hereinafter, referred to as the Rules of 1964), proceeded to place the petitioner under suspension, w.e.f. 05.02.2025. The petitioner on being released from judicial custody, not being released his subsistence allowance, had approached the respondent authorities by way of submission of a representation dated 29.05.2025, praying for being authorized his due subsistence allowance. The respondent authorities, thereafter, vide a Show Cause Notice dated 09.06.2025, instituted a departmental proceeding against the petitioner, herein.

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The petitioner submitted his Show Cause Reply to the said Show Cause Notice dated 09.06.2025, on 21.06.2025. It is in the above background that the petitioner had instituted the present writ petition, praying for the reliefs, noticed hereinabove.

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4. Mr. Deka, learned counsel for the petitioner, by reiterating the facts noticed hereinabove, has submitted that the petitioner, on being placed under suspension, vide order dated 16.02.2025, the respondents had not carried out a review, thereof. He submits that the Show Cause Notice, instituting a departmental proceeding against the petitioner having been issued to the petitioner only on 09.06.2025, admittedly the same was issued beyond 4 (four)

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months w.e.f. the date the petitioner was placed under suspension.

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4.1 Mr. Deka, learned counsel for the petitioner, has further submitted that after the issuance of the Show Cause Notice dated 09.06.2025, the respondent authorities had not served upon the petitioner any reasoned order after considering the necessity to extend the period of suspension of the petitioner, after the departmental proceeding was instituted against him.

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4.2 Mr. Deka, learned counsel for the petitioner, has further submitted that the disciplinary proceeding now instituted against the petitioner vide the said Show Cause Notice dated 09.06.2025, is based on the allegations leveled against the petitioner leading to his arrest in the criminal proceedings, so instituted and presently pending investigation in ACB P.S. Case No. 12/2025. He submits that in the event, the disciplinary proceeding is permitted to be taken to its logical conclusion, the defence of the petitioner in the criminal proceedings would stand impaired. Accordingly, he submits that a prejudice being likely to be caused to the petitioner in the criminal proceedings instituted against him, this Court would be pleased to stay the disciplinary proceedings till conclusion of the trial in the criminal proceedings instituted against the petitioner.

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4.3 Mr. Deka, learned counsel for the petitioner, in support of the submissions made by him with regard to the prolonged suspension undergone by him, has relied upon the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury Vs. Union of India and Another, reported in (2015) 7 SCC 291.

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5. Per contra, Mr. Konwar, learned Additional Advocate General, appearing for the respondent Nos. 1, 2, 3, 5 & 6 has submitted that the petitioner on

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being placed under arrest and the information being received by the departmental authorities, the petitioner was vide order dated 16.02.2025, placed under suspension, w.e.f. 05.02.2025, i.e., the date of his arrest.

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5.1 Mr. Konwar, learned Additional Advocate General submits that the respondent authorities prior to issuance of the Show Cause Notice dated 09.06.2025 to the petitioner, had extended the period of suspension of the petitioner, vide issuance of a Notification dated 05.06.2025 and on a review of the same being so carried out, the continuation of the suspension was for the period, w.e.f. 06.05.2025 to 03.08.2025.

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5.2 Mr. Konwar, learned Additional Advocate General submits that the Show Cause Notice having been so issued to the petitioner during the currency of the suspension order, a further order for extension of the period of suspension after the issuance of the Show Cause Notice was not called for.

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5.3 Mr. Konwar, learned Additional Advocate General submits that the period of suspension was, thereafter, being extended from time to time. He submits that in the event, there is any arrears of subsistence allowance receivable by the petitioner, the same would be processed and released to the petitioner by the respondent authorities at the earliest. Accordingly, Mr. Konwar, submits that given the nature of the allegations leveled against the petitioner in the departmental proceedings instituted against him, this Court would be pleased not to revoke the suspension of the petitioner and permit the disciplinary authority of the petitioner to conclude the departmental proceedings so instituted.

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5.4 With regard to the prayer of the petitioner to keep the departmental

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proceedings instituted against him under stay till the conclusion of the criminal trial, Mr. Konwar, learned Additional Advocate General has submitted that the criminal proceedings instituted against the petitioner in connection with ACB P.S. Case No. 12/2025, is still at the stage of investigation and even a prosecution sanction to prosecute the petitioner has not been sought for, by the Investigating Agency. He submits that the trial of the criminal proceedings not having been started, no prejudice can be said to be caused to the petitioner in the event the departmental proceeding is taken forward and concluded. He submits that the prayer of the petitioner for stay of the departmental proceedings, in view of the fact that the criminal proceedings instituted against him is still pending at the investigation stage, would not mandate an acceptance from this Court.

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

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7. This Court would at the first instance consider the prayer of the petitioner for a stay of the departmental proceedings instituted against him pending conclusion of the trial in the criminal proceedings instituted. Although, it is projected that both the criminal case as well as the departmental proceedings are based on the same set of allegations, this Court finds that in the criminal proceeding, the same is still pending at the investigation stage. No charge-sheet has been filed till date against the petitioner.

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8. At this stage, it cannot be presumed that the Investigating Agency would be filing a charge-sheet against the petitioner in the matter and/or the nature of allegation that would be incorporated therein, by the Investigating Agency.

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9. Considering the FIR as well as the Forwarding Report and the other connected materials brought on record pertaining to the departmental proceedings, although, this Court finds that the allegations both in the departmental proceedings as well as in the criminal proceedings may be similar, however, it is not found that a complicated question of law also arrives given the nature of the allegations, in the criminal proceedings instituted against the petitioner.

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10. Accordingly, the purport and intent of a departmental proceeding and a criminal proceeding being different and the criminal proceeding instituted against the petitioner being still pending at the investigation stage, this Court is of the considered view that no prejudice would be caused to the petitioner in view of the above facts in the event the disciplinary proceeding is permitted to be taken to its logical conclusion by the disciplinary authority of the petitioner. Accordingly, the said prayer of the petitioner for a stay of the disciplinary proceeding stands rejected.

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11. As noticed hereinabove, the petitioner was vide order dated 16.02.2025, placed under suspension, w.e.f. 05.02.2025. A perusal of the order dated 16.02.2025 reveals that the authority issuing the order had invoked the provisions of Section 6(1) of the Assam Services (Discipline & Appeal) Rules, 1964, but the suspension of the petitioner was on the ground that he was placed under arrest and the same was effected with retrospective effect, i.e., w.e.f. 05.02.2025, i.e., the date of arrest of the petitioner.

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12. This Court on a consideration of the contentions made in the suspension order dated 16.02.2025, is of the considered view that the same was actually passed under Section 6(2) of the Rules of 1964 and on account of a

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typographical error in the said suspension order, the provision came to be reflected as Rule 6(1) of the Rules of 1964.

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13. It is a settled position of law that a wrong quoting of a provision in an order would not invalidate that order. Accordingly, this Court would proceed to consider the challenge of the petitioner to the order dated 16.02.2025, by reckoning that the same was so issued under Section 6(2) of the Act of 1964.

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14. As noticed hereinabove, on the date the order of suspension dated 16.02.2025 was so passed, the petitioner was in detention in connection with ACB P.S. Case No. 12/2025. He was enlarged on bail in connection with his arrest in ACB P.S. Case No. 12/2025 by the learned Trial Court, vide order dated 18.03.2025. As held by this Court in the case of Rafed Ali Ahmed Vs. State of Assam and Others, reported in 2023 (3) GLT 718, the period of 90 days during which a suspension would be in currency in terms of the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (supra), in respect of a deemed suspension under Section 6(2) of the Rules of 1964 would have to be construed from the date the delinquent, on being enlarged on bail, had intimated his employer about his such enlargement on bail.

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15. No material has been brought on record by the petitioner to demonstrate that he had informed the respondent authorities about his enlargement on bail by the learned Trial Court vide order dated 18.03.2025. However, the said aspect of the matter would not be material for adjudication of the issue arising in the present writ petition, given the fact that the respondent authorities on their own had issued a Show Cause Notice to the petitioner on 09.06.2025. Accordingly, the Show Cause Notice, issued to the petitioner is found to have been issued within a period of 3 (three) months from the date the petitioner

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was released from custody, on being enlarged on bail by the learned Trial Court.

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16. The maximum period for which an order of suspension can remain in currency has been dealt with by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (supra). The decision of the Hon’ble Supreme Court in Ajay Kumar Choudhury (supra) would also apply to a deemed suspension occasioning on the delinquent, being placed under arrest and having remained under detention for more than 48 hours.

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17. The Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra), more particularly, in paragraph No. 21, had laid down the law that the currency of a suspension order should not extend beyond 3 (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 extension of the suspension.

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18. The law as laid down by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra), is of 2(two) parts: one, contemplating a situation, wherein, a departmental proceeding has not been initiated against the delinquent officer/employee within a period of 3 (three) months with effect from the date, such employee was placed under suspension. In such a circumstance, the Hon’ble Supreme Court has mandated that the currency of a suspension order shall not extend beyond 3 (three) months, if within this period; the memorandum of charges/charge-sheet is not served upon the delinquent officer/employee. The said direction would have no application in the case of the petitioner, herein, as the Show Cause Notice, in his case, was so served upon him within a period of 90 (ninety) days of being placed under suspension.

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19. The second part of the directions passed by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary (supra), mandates that in the event, a charge-sheet/memorandum of charge is served; a reasoned order must be passed for extension of the suspension. However, in the case on hand, no order extending the period of suspension came to be served upon the petitioner, along with the Show Cause Notice, served upon him. It also appears that no such order was also served upon the petitioner proximate to the date of service upon him of the Show Cause Notice.

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20. In pursuance to the decision of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary (supra), more particularly, the directions contained, therein, in paragraph No. 21, the same was implemented in the State vide issuance of an Office Memorandum, dated 04.02.2020, issued by the Chief Secretary to the Government of Assam, Personnel (B) Department, wherein, it was mandated as follows: -

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“ It is therefore directed 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/chargesheet is not served on the delinquent officer/employee. If the memorandum of charges/charge-sheet is served within 3(three) months of suspension, a reasoned order must be passed for the extension of the suspension, whenever necessary.”

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21. The respondent State, having already issued the said Office Memorandum, dated 04.02.2020, a right accrues to the petitioner, herein, for

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seeking a direction for his reinstatement in his service on account of the fact that on the date of issuance of the memorandum of charges/charge-sheet and/or on the date of it being served upon him; a reasoned order as mandated to be so issued in terms of the provisions of the law declared by the Hon’ble Supreme Court in paragraph No. 21 of its decision in Ajay Kumar Choudhary (supra) as well as Office Memorandum, dated 04.02.2020, was not so done, rendering the continuation of the suspension, to be null and void.

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22. Having noticed the said decision pertaining to the issue of prolonged suspension and the law declared in the matter in the case of Ajay Kumar Choudhary (supra) and implemented by the State respondents vide the issuance of the Office Memorandum, dated 04.02.2020; this Court is of the considered view that the respondent authorities cannot act in violation of the law as laid down in the case of Ajay Kumar Choudhary (supra) and it being a law declared under Article 141 of the Constitution of India, it would be binding on all concerned in the country.

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23. The respondent authorities have contended that on review, the period of suspension of the petitioner was being extended. The subsequent reviews carried-out in the matter of the order of suspension, in the considered view of this Court, would be of no consequence, in-as-much as, it is the mandate of law that a reasoned order extending the period of suspension is to be so issued on the date of issuance of the Show Cause Notice and the order extending the period of suspension must be served upon the petitioner, along with the Show Cause Notice, or, be served upon him proximate to the date on which such Show Cause Notice, was served upon him.

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24. In view of the above position and admittedly, the order of suspension of

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the petitioner not having been reviewed in terms of directions passed by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary (supra); this Court is of the considered view that the same has lost its force and accordingly, the same cannot be said to be in currency any further. The petitioner, accordingly, would be required to be reinstated in his services.

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25. In view of the above discussions, this Court hereby holds that the order of suspension, dated 16.02.2025, issued in respect of the petitioner, herein, has lost its currency and accordingly, directs the respondent authorities to reinstate the petitioner in his service, within a period of 15 (fifteen) days from the date of receipt of a certified copy of this order.

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26. However, noticing the allegations so leveled against the petitioner and appreciating the fact that his continuation may not be called for against a post of sensitive nature; this Court by relying on the further directions as passed by the Hon’ble Supreme Court in paragraph No. 21 of the Ajay Kumar Choudhary (supra), directs that the respondent authorities would be free to transfer the petitioner to any other post existing in the Department, so as to prevent the petitioner from misusing and/or obstructing the investigation pending against him. The respondent authorities would also be at liberty to pass such direction(s) with regard to the duties required to be so performed by the petitioner in the matter.

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27. In this connection, the observation made by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra) in paragraph No. 21, is extracted hereinbelow, for ready reference:

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“ 21. …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

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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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28. It is also provided that the reinstatement of the petitioner, herein, would not preclude the disciplinary authority from finalizing and concluding the disciplinary proceeding initiated against him in accordance with law. The manner, in which the period of suspension undergone by the petitioner, herein, is to be so reckoned, would be considered by the disciplinary authority, while passing order(s) in the matter upon conclusion of the disciplinary proceeding instituted against him.

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29. As the learned counsel for the petitioner has submitted that the petitioner has not been released his subsistence allowance for the period August, 2025 to February, 2026, the respondent authorities shall consider the said grievance of the petitioner and in the event, the subsistence allowance of the petitioner for the said period, is not so released to him, the respondent authorities shall process the same and release the arrears of the subsistence

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allowance to the petitioner, within a period of 1 (one) month from the date of receipt of a certified copy of this order.

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

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JUDGE

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Comparing Assistant

Siba Prasad Saikia v. the State of Assam and 5 Ors.

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Siba Prasad Saikia v. the State of Assam and 5 Ors.

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