Dr. A.K. Adhyapok vs State Of Assam And 3 Ors

Heard Mr. S.K. Goswami, learned counsel appearing for the writ petitioner in both the writ petitions. I have also heard Mr. D. Saikia, learned

Senior Additional Advocate General, Assam assisted by Mr. D.P. Borah, learned counsel appearing for the respondents.

These two writ petitions are founded on inter-related facts, raising common questions of law and, therefore, are being taken up for disposal by this

common order at the stage of admission hearing with the consent of the learned counsel for both the parties.

The writ petitioner herein is a qualified Dental Surgeon and while working as the Professor and Head of the Department in the Oral and

Maxillofacial Surgery Department in the Regional Dental College (RDC), Guwahati, he was promoted to the post of Principal by the order dated

16/05/2013. Since then, the petitioner had been discharging his duties as the Principal of the RDC, Guwahati. However, by the order dated 05/01/2018

issued by the respondent no.1, the petitioner was placed under suspension pending drawl of departmental proceeding against him. When the

respondents had failed to serve charge memo upon the petitioner within the period of three months from the date of suspension, the petitioner had

approached this Court by filing WP(C) No. 2863/2018, inter-alia, contending that in terms of the law laid down by the Hon’ble Supreme Court in

the case of Ajay Kumar Choudhury Vs. Union of India and others reported in (2015) 7 SCC 291, the order of suspension has already lapsed since the

memorandum of charges had not been served upon the petitioner before the expiry of three months from the date of issuance of the same. During the

pendency of the aforesaid writ petition, the respondent authorities had issued show cause notice dated 11/04/2018 calling upon the petitioner to submit

his written statement of defense within 10(ten) days from the date of receipt of the same. Thereafter, on 08/05/2018, the respondent no.1 had issued a

notification continuing the order of suspension of the petitioner until further orders. Aggrieved by the show cause notice dated 11/04/2018 as well as

the notification dated 08/05/2018, the petitioner has preferred WP(C) No. 3038/2018.

Placing heavy reliance on the decision of the Supreme Court in the case of Ajay Kumar Choudhury (Supra), Mr. Goswami submits that the law laid

down by the Supreme Court in para 21 of the said decision would be squarely applicable in the case of the petitioner herein and since the respondents

had failed to review the order of suspension before the expiry of three months and had also failed to serve the charge memo to the petitioner within

that period, as per the said decision of the Supreme Court, the order of suspension has lapsed and therefore, the order of suspension dated 05/01/2018

could not have been extended by the subsequent order dated 08/05/2018.

By referring to para 2.1.8 (ii) and (iii) of the Manual of Departmental Proceeding applicable to the State Government employees, Mr. Goswami

further submits that even under the Assam Service Manual (General) Rules, the respondents are duty bound to serve the charge memo within three

months from the date of suspension. That apart, if the continued suspension of the Government servant is necessary in public interest than the

Administrative Department should move the Personnel Department well before the expiry of the period of 3 months seeking extension of the period of

suspension, which has not been done in this case. Under the circumstances, submits Mr. Goswami, the impugned order of suspension dated

05/01/2018 as well as the subsequent notification dated 08/05/2018 are unsustainable in the eye of law and hence, liable to be set aside by this Court.

Referring to the show cause notice dated 11/04/2018, Mr. Goswami submits that the basic charge against the writ petitioner is that he had wrongly

advised the Governing Body of the College in its meeting held on 16/02/2013 that internship training in the College should be a paid one and the

candidates who are willing to do the internship must be charged a sum of Rs 2.00 Lakhs. But by referring to the minutes of the 23rd meeting of the

Committee held on 11/01/2013 Mr.Goswami submits that it was the decision of Committee headed by the then Additional Chief Secretary to the

Government of Assam, in- charge Health and Family welfare department to collect money from the internship candidates and therefore, his client

cannot be held responsible for the said decision. The learned counsel has, however, submitted in all fairness that his client is ready and willing to face

the departmental proceeding but submits that the petitioner has been unduly prevented from submitting an effective reply to the show cause notice

since his request for permitting inspection of the documents relied upon by the department has not been acceded to by the authorities till date. To

buttress his above argument, Mr. Goswami has invited the attention of this Court to the representation dated 02/05/2018 (annexure XXXI to the writ

petition ) to submit that the request made by his client for inspection of the documents has not been responded to by the authorities till date.

Responding to the above arguments Mr. D. Saikia, learned Senior Additional Advocate General, Assam, has argued that the petitioner is guilty of

grave misconduct as would be evident from a perusal of the show cause notice dated 11/04/2018 and, therefore, continuance of his suspension was

deemed necessary in this case so as to protect the interest of a fair inquiry into the charges. Mr. Saikia submits that there is no quarrel with the

proposition laid down by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhaury (Supra) but in the present case, it is the petitioner

who has deliberately delayed the proceeding by withholding the keys of the almirahs and the SIM card as a result of which the authorities could not

examine all the relevant materials necessary for taking a decision on the question of extension of the order of suspension of the petitioner.

With regard to the complaint made by the petitioner regarding the department’s failure to respond to his request for inspection of the

documents, Mr. Saikia submits that departmental authorities would have no difficulty in permitting the petitioner to inspect of the relevant documents

and they would also expedite the departmental proceeding subject to the condition that the petitioner renders all necessary co-operation in this regard.

I have considered the submissions made by the learned counsel for the parties and have also perused the materials available on record.

In the case of Ajay Kumar Choudhury (Supra), the protracted period of suspension and delay in formulation of charges leading to the delay in

commencement of departmental proceedings causing sufferings of the employees had invited the attention of the Supreme Court. It was a case where

the appellant had assailed his order of suspension which had been extended and continued ever since 30/09/2011. After referring to a series of earlier

decision of the court enunciating the law regarding suspension of employees, the Supreme Court had observed that, suspension, specially preceding the

formulation of charges, is essentially transitory or temporary in nature and must perforce be of short duration. Observing that protracted period of

suspensions and the repeated renewal thereof have regrettably become the norm and not the exception that they ought to be, the Supreme Court had

laid the following law in paragraphs 20 and 21, which are quoted herein below for ready reference :-

“20. It will be useful to recall that prior to 1973 an accused could be detained for continuous and consecutive periods of 15 days, albeit, after

judicial scrutiny and supervision. The Code of Criminal Procedure, 1973 contains a new proviso which has the effect of circumscribing the power of

the Magistrate to authorise detention of an accused person beyond a period of 90 days where the investigation relates to an offence punishable with

death, imprisonment for life or imprisonment for a term of not less than 10 years, and beyond a period of 60 days where the investigation relates to any

other offence. Drawing support from the observations contained of the Division Bench in Raghubir Singh vs. State of Bihar, [1986 (4) SCC 48], and

more so of the Constitution Bench in Antulay [(1992) 1 SCC 225], we are spurred to extrapolate the quintessence of the proviso of Section 167(2) of

the Cr.P.C. 1973 to moderate suspension orders in cases of departmental/disciplinary inquiries also. It seems to us that if Parliament considered it

necessary that a person be released from incarceration after the expiry of 90 days even though accused of commission of the most heinous crimes, a

fortiori suspension should not be continued after the expiry of the similar period especially when a Memorandum of Charges/Charge-sheet has not

been served on the suspended person. It is true that the proviso to Section 167(2) Cr.P.C. postulates personal freedom, but respect and preservation

of human dignity as well as the right to a speedy trial should also be placed on the same pedestal.

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 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.â€​

A careful scrutiny of the decision in the case of Ajay Kumar Choudhury (Supra) goes to show that the observations made there-in are not in

reference to any particular Service Rule but those were of a general nature, made in the context of the right of an employee to human dignity, speedy

trial and presumption of innocence, which is implicit in Article 21 of the Constitution. Therefore, it is apparent that the principles enunciated in the

aforesaid decision would have general application in all cases of similar nature across the spectrum.

In the case R. Gandhi v Union of India reported in (1999) 8 SCC 106, the Supreme Court has held that a judgment of the court cannot be

interpreted as the words of a statute. Therefore, the decision of the court has to be understood and interpreted in its plain and literal meaning having

due regard to the context in which the decision has been rendered. Having regard to the observations made in paragraphs 20 and 21 of the case of

Ajay Kumar Choudhury (Supra) it is apparent that in all case where a government employee has been placed under suspension pending drawl of

departmental proceeding, charge memorandum containing the statement of allegations shall have to be served by the authority within period of three

month from the date of suspension failing which the order of suspension could not be extended beyond three months. Even if the memorandum of

charge is served with in that period, a reasoned order must be issued for the extension of the period of suspension.

In the case in hand, there is no dispute about the fact that the petitioner being an employee under the Government of Assam, his case would be

governed by the provisions of the Assam Services (Discipline and Appeal) Rules, 1964 ( for short Rules of 1964). The power to place a government

servant under suspension is traceable to Rule 6 (1) of the Rules, 1964, according to which, the appointing authority or any other authority empowered

by the Governor on that behalf can exercise such power on the grounds mentioned there-in. Rule 6(1) is reproduced here-in-below for ready

reference :-

“6. Suspension â€" (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 -

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

(b) Where in the opinion of the authority aforesaid he has engaged himself in activities prejudicial to the interest or the security of the State ; or

(c) Where a case against him in respect of any criminal offence is under investigation, inquiry or trialâ€​.

Proviso to Rule 6(1) makes it clear that when an order of suspension is made by an authority lower than the appointing authority, such authority shall

report to the appointing authority the circumstances in which the order was made.

The Manual of Departmental Proceeding laying down the procedure to be followed by the authorities while giving effect to the provisions of the

Rules of 1964 enjoins a duty upon the departmental authorities to serve the statement of allegation within three months from the date of suspension

and also to seek the approval of the Personnel Department before expiry of the period of three months, if further extension of period of suspension of

the government servant is desired. Para 2.1.8 (ii) and (iii) of the service manual are quoted herein below for ready reference :-

“(ii) charges and the statement of allegations should be served within three months from the date of suspension failing which the Government

Servant concerned should be reinstated; and

(iii) in cases where it is not reasonably practicable to prepare the charges for service within three months from the date of suspension and the

continued suspension of the Government servant is considered necessary in the public interest, the authority concerned should move the Personnel

Department through Administrative Department well before the expiry of the period of three months with a letter detailing the nature of the allegations

and the reasons for which charges could not be prepared so that the Personnel Department could advise whether any further extension of the period

of suspension should be permitted or not.â€​

A bare reading of the said provision contained in the Manual of Departmental proceeding goes to show that an employee should not ordinarily be

continued under suspension for a period exceeding three months and even in cases where there is a need for extending the order of suspension,

necessary approval from the Department of Personnel would be necessary. The above provisions not only offers sufficient safe guard against

arbitrary and unfettered exercise of power of suspension by the authority but also emphasizes the view of the Government that the practice of placing

an employee under suspension in excess of a period of three months should normally be eschewed.

By interpreting the provisions of Rr 10(6) and (7) of the Central Civil Service (Classification, Control and Appeal) Rules 1965, which mandated

that an order of suspension must be reviewed by the authority before the expiry of ninety days from the effective date of suspension for the purpose

of extending or revoking the same, failing which the order shall not remain valid after the period of ninety days, the Supreme Court has observed in the

case of Union of India vs Dipak Mali, (2010) 2 SCC 222 that the order of suspension shall not survive after the period of 90 days unless extended

after a review. Similar view has been expressed by the Division Bench of this court in the case of Indian Institute of Technology and another Vs.

Aloke Kumar Ghosal and another reported in 2017 (5) GLT 132.

In the case Prafaulla Hazarika Vs State of Assam reported in 2016(3) GLT 528 this court had considered the procedure to be followed where the

charges and statement of allegation could not be submitted within three months and the continued suspension of the employee was deemed necessary

in the public interest. That was a case coming under the purview of the Rules of 1964 and by referring to the Executive Instructions holding the field,

the learned Single Judge has held that in such cases, the concerned authority should move the administrative department detailing the nature of

allegations and the reasons why charges could not be framed.

In another decision in the case of Sayyed Alam & Others v State of Assam reported in 2017(1) GLT 143, this court has observed that the

authority upon whom discretion is vested to exercise power of suspension must genuinely address itself to the matter before it and must act in good

faith, after taking into consideration all the relevant factors and must not be swayed by irrelevant considerations.

From a careful analysis of the various judicial pronouncements referred to above and applying the ratio thereof in the context of the Rules of 1964

and the Executive Instruction holding the field, the following principles of general application covering all cases falling under the purview of Rules of

1964 can be laid down :-

(I) An order of suspension cannot be continued beyond three months unless memorandum of charges / charge sheet is served upon the delinquent

employee within that period.

(II) Even in cases where the memorandum of charges is served upon a delinquent employee within three months, if the continuance of his/ her

suspension is deemed necessary in public interest and for the purposes of the Rules, the order of suspension must be reviewed before the expiry of

three months and the same can be extended for a further period, not exceeding three months at a time, only after furnishing proper justification

through a reasoned order.

(III) In all cases where the suspension of an employee is desired beyond the period of three months, the approval of the Department of Personnel

would have to be obtained by the Administrative Department before expiry of three months.

(IV) The power of suspension must be exercised sparingly and only for achieving the purposes mentioned in Rule 6(1) of the Rules of 1964 and for no

other purpose.

Coming to the facts of the case in hand, as noted above, the writ petitioner was originally placed under suspension by the order dated 05/01/2018

while he was functioning as the Principal of the RDC, Guwahati. It is not in dispute that the charge memorandum could not be served upon the

petitioner within three months from the date of his suspension. It was only on 11/04/2018 that a show cause notice containing the Charges was issued

to the petitioner. Thereafter, the order of suspension was extended by the notification dated 08/05/2018. Such being the position, it is evident on the

face of the record that the ratio of the law laid down by the Supreme Court in the case of Ajay Kumar Choudhury (Supra) would be squarely

applicable to the facts of the present case. Since the memorandum of charges could not be served upon the writ petitioner within three months from

the date of the order of suspension, i.e. 05/01/2018, the currency of the order of suspension had lapsed on the expiry of the period of three months.

Therefore, the respondent No. 1 could not have issued the impugned order dated 08/05/2018 extending an order which had already lapsed.

Although Mr. Saikia, learned Senior Additional Advocate General, Assam has vociferously argued that it is the writ petitioner who is responsible

for the delay in issuance of the order of continuance of suspension, yet, I do not find any such mention in the order dated 08/05/2018. Moreover, even

if the allegation made by the respondents that the petitioner had deliberately withheld the keys of the almirahs as well as the BSNL SIM card used by

him, which allegations have, however, been strongly denied by the petitioner, even in that case, a bare perusal of the show cause notice dated

11/04/2018 goes to show that the keys of the almirah including other official items had been received by the departmental authorities from the

petitioner on 05/02/2018. Reckoned from 05/02/2018, there is no explanation from the respondents as to why the memorandum of charges or for that

matter, the order dated 05/01/2018 could not have been reviewed within 05/04/2018 i.e. within a period of three months from the issuance of the

original order.

It would be pertinent to note here-in that there are three grounds mentioned in the order dated 08/05/2018 prompting the authorities to continue

with the suspension of the petitioner. Those grounds are quoted herein below for ready reference :-

 “(i) Continuance in office of the said Government servant will prejudice the Disciplinary proceeding or any other inquiry;

(ii) Continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the Government servant is working;

(iii) Continuance in office of the Government servant will be against the wider public interest and it is necessary to place the Government servant

under suspension to demonstrate the policy of Government to deal strictly with officers involved in irregularities and corruption.â€​

In so far as the first ground cited in the order dated 08/05/2018 is concerned, what must be noted is that it is the admitted position of fact that the

charge memorandum has already been served upon the petitioner in this case on 11/04/2018 and the documents through which those charges are

sought to be proved are also in the custody of the departmental authorities. Under the circumstances, while issuing the order dated 08/05/2018, it was

incumbent upon the respondent No. 1 to indicate as to how the reinstatement of the petitioner in office would prejudicially affect the interest of the

departmental proceeding. But I find from the order dated 08/05/2018 that there is not even a whisper in the order on the said aspect of the matter.

As regards the ground numbers (ii) and (iii) are concerned, after examining those grounds carefully, this court is constrained to observe that none

of those grounds are in consonance with the provisions of Rule 6(1) of the Rules of 1964. Subverting discipline in the office is not one of the grounds

available under Rule 6(1) of the Rules either to place an employee under suspension or to continue such order of suspension. Moreover, such a ground

is completely un-related with the charges brought against the writ petitioner. There is also no mention in the order dated 08/05/2018 as to the basis for

presuming that the petitioner is likely to subvert the discipline in the office if he is reinstated in service during the pendency of the departmental

proceeding.

The third ground mentioned in the order dated 08/05/2018 appears not only to be wholly contrary to Rule 6(1) but also in violation of the basic

rights of human dignity and presumption of innocence as guaranteed to the writ petitioner under Article 21 of the Constitution of India. The language

employed there-in prima facie demonstrates that the respondents have already held the petitioner to be guilty of the alleged misconduct even before

the commencement of the departmental proceedings and has continued the order of suspension as a measure punishment.

Law is well settled that an order of suspension issued under Rule 6(1) of the Rules of 1964 is not a punishment but a temporary measure resorted

to by the employer against an employee pending drawl of departmental proceeding. In the case of Bakuli Deka v State of Assam reported in 1999 (1)

GLT 654 this court had observed that Rule 6 of the Rules confer discretion upon the authority to place an employee under suspension but such

discretion is not unfettered. The power under Rule 6 is to be exercised for attainment of the object of the statute and such power cannot be exercised

for collateral purposes and outside the object and purpose of the law. From a perusal of the grounds mentioned in the order dated 08/05/2018, this

court is of the opinion that the same had been issued not purely for achieving the objective of the Rule but for collateral purposes and therefore, cannot

receive the approval of this court.

In a catena of decisions including in the case of Ajay Kumar Choudhury (Supra) the Supreme Court has held that protracted period of suspension

results in suffering of ignominy of insinuation by the suspended person often inviting the scorn of the society. Continuance of an order of suspension

for long period without any proper justification not only deprives the department of the services of that employee but also takes away his right to earn

a livelihood and carry out a living with a sense of dignity. That apart, long and continuous period of suspension also adversely affects the morale of the

employee besides creating a situation where, despite being in employment, the employee is prevented from rendering his services to the department.

As such, although there cannot be any doubt about the fact that the power to place an employee under suspension is always the prerogative of the

employer, yet, such a power must be exercised with circumspection, on an objective consideration of the circumstances of each case and the option to

place an employee under suspension engaged in public service should normally be the last option.

The writ petitioner in this case is a qualified and experienced dentist and therefore, if he is reinstated in service, it is the public in general who

would directly benefit from his services. Even assuming that the reinstatement of the petitioner in the post held by him at Guwahati would pose any

difficulty for the department in conducting the disciplinary proceeding, even then, it is the admitted position of fact that there are two other Dental

Colleges functioning in the State of Assam in other districts and there is no plausible reason as to why the writ petitioner cannot be suitably

accommodated in one of those Dental Colleges upon his reinstatement, if the authorities so desire.

For the reasons stated hereinabove, I am of the view that the impugned orders dated 05/01/2018 and 08/05/2018 are not sustainable in the eye of

law and the same are accordingly set aside.

In so far as the show cause notice dated 11/04/2018 is concerned, I do not find any cogent ground to interfere with the same, more so, when the

petitioner’s counsel has submitted that his client is ready and willing to face the departmental proceeding provided he is given a fair opportunity to

defend his interest.

In view of what has been held above, the respondent no. 1 is directed to reinstate the petitioner in service with immediate effect and also to permit

him inspection of the relevant documents within a period of 7(seven) days from the date of receipt of a certified copy of this order. Within 10(ten)

days thereafter, the petitioner to submit his written statement of defense. The respondents to take appropriate steps in this case so as to conclude the

departmental proceeding as expeditiously as possible, preferably within a period of 3 (three) months from the date of receipt of the written statement

of defense from the petitioner.

Facilitating the above process the petitioner to furnish a certified copy of this order to the competent authority.

With the above observation, both the writ petitions stand disposed of. There would be no order as to costs.