Abdul Wahid vs State Of Assam And 3 Ors

ACHINTYA MALLA BUJOR BARUA, J.

Heard Mr. K. Bhuyan, learned counsel for the petitioner, Mr. SB Sarma, learned counsel for the respondent Kharupetia College as well as Mr. K. Gogoi, learned Standing Counsel for the Higher Education Department, Government of Assam.

The petitioner, who was serving as an Assistant Professor in a non-sanctioned post in the Kharupetia College, was placed under suspension as per the communication dated 29.08.2017 of the Principal of Kharupetia College. The communication of suspension provides that a letter was received from the Officer in Charge of Dhula Police Station dated 29.08.2017, which indicates that the petitioner was arrested in connection with Case No.118/2017 and he was in custody for a period of more than 48 hours. In the aforesaid premises, the order of suspension was issued.

The Court puts a specific query to the learned counsel for the Governing Body of the College as to whether any memorandum of charge/ charge-sheet had been issued and served on the petitioner as regards any proposed disciplinary action that may be taken and the answer given is that no such memorandum of charge/charge-sheet has been issued. On the other hand, Mr. Sarma learned counsel for the Governing Body relies upon a communication dated 23.03.2018 of the President of the Governing Body of the College, by which the claim of the petitioner for his salary was rejected.

A communication rejecting the claim of salary cannot in any manner be construed to be a memorandum of charge/charge-sheet. It is further stated that the petitioner was informed about the allegations, based upon which the order of suspension was issued.

The Court is of the view that even the information being provided to a suspended employee with reasons for which he is placed under suspension, also cannot be a substitute of the memorandum of charge/charge-sheet to be served for initiating a disciplinary proceeding.

Mr. K. Bhuyan, learned counsel for the petitioner relies upon the provision made by the Supreme Court in paragraph-21 of Ajay Kumar Choudhary vs- Union of India, reported in (2015) 7 SCC 291. Paragraph-21 of the said judgment of the Hon'ble Supreme Court is quoted below:-

"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 concerned person 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 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."

It being the proposition of law laid down by the Supreme Court that in the event the memorandum of charge/charge-sheet is not served within a period of three months, the order of suspension is no longer sustainable, the Court is of the view that in the instant case, as the suspension was effected by the communication of 29.08.2017 and no memorandum of charge/charge-sheet had been submitted in the meantime three months period having elapsed, the order of suspension is no longer sustainable.

Accordingly, the suspension of the petitioner by the communication dated 29.08.2017 is hereby set aside.

It is provided that the interference of the order of suspension shall not preclude the respondent authorities in any manner to initiate the disciplinary proceeding as per law and secondly, the authorities would be at liberty to deal with the petitioner in any manner as further provided in paragraph-21 in Ajay Kumar Choudhary (Supra).

The writ petition stands allowed to the extent indicated above.