Jnanendra Chakravorty vs State Of Assam And Ors.

Heard Mr. S. Borthakur, learned counsel for the petitioner as well as Mr. S.P. Bhattacharjee, learned counsel for the respondents.

The petitioner, who is working as an Assistant Teacher at Raitkuchi Lokopriya MozuliyaBidyalay under Nalbari District was placed under

suspension vide order dated 29.11.2017. As no memorandum of charge/charge-sheet had been filed against the petitioner, even after a lapse of

3(three) months, the petitioner claims reinstatement into service, in view of the law laid down by Apex Court in Ajay Kumar Choudhary â€"Vs- Union

of India, reported in 2015 7 SCC 291.

The counsel for the respondents submits that the law laid down by the Apex Court in Ajay Kumar Choudhary â€"Vs- Union of India (supra) is with

regard to suspension made under the CCS CCA, Rules, 1964. He submits that the petitioner herein has been suspended under the Assam Services

(Disciplinary and Appeals) Rules, 1964 and as such, the said judgment cannot be made applicable to the present case.

I have heard the learned counsels for the parties.

Section 10(6) and 10(7) CCS CCA Rules, 1964 states as follows:-

 “(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which is competent to

modify or revoke the suspension before expiry of ninety days from the effective date of suspension on the recommendation of the Review Committee

constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the

extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.

(7) An order of suspension made or deemed to have been made under sub-rule (1) or (2) of this rule shall not be valid after a period of ninety days

unless it is extended after review, for a further period the expiry of ninety days.

Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant

continues to be under suspension at the time of completion of ninety days of suspension and the ninety days’ period in such case will count from

the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated

to his appointing authority, whichever is later.â€​

The Apex Court, taking into account the above provisions, had held that the currency of a Suspension Order should not extend beyond 3(three) months

if within the period of 3(three) months, the memorandum of charge/charge-sheet was not served upon the Delinquent Officer/Employee.

Para 21 of the judgment in Ajay Kumar Choudhary (supra) states as follows:-

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 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.â€​ Â

Section 6(1) of the Assam (Disciplinary and Appeals) Rules, 1964 states as follows:-

 “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-

(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 activitiesprejudicial 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 trial :

Provided that where the order of suspension is made by an authority lower than the Appointing Authority such authority shall forthwith report to the

Appointing Authority the circumstances in which the order was made.â€​

The Manual of Departmental Proceedings issued by the Department of Personnel,

Government of Assam states at para 2.1.8 as follows:-

 “2.1.8. The following principles and procedure with regard to suspension need strict compliance-

(i) suspension should be resorted to only in cases where a major punishment is likelyto be imposed if the charges are proved;

(ii) charges and the statement of allegations should be served within three monthsfrom 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 servicewithin 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.

Where the services of a Government servant are lent to the Central Government, any other State Government or to local or other Authority, the

Borrowing Authority will have the powers of the Appointing Authority for the purpose of placing the officer under suspension and of the Disciplinary

Authority for the purpose of initiating a disciplinary proceeding against him subject to the provisions of the Assam Services (Discipline and Appeal)

Rules, 1964. (O.M. No. ABP. 284/79/1. dated 5th September, 1979)â€​

In the case of Md. Zakir Hussain â€"Vs- State of Assam and others, reported in (2017), 4GLT 312, this Court held that the further continuation of

the suspension beyond the period of 3(three) months, in the absence of the memorandum of charge being served and further even if it is to be

construed that such memorandum of charges has been served, in the absence of reason of the order being passed for continuance of the suspension

order, the suspension order is no longer sustainable. This Court while passing the judgment in Md. Zakir Hussain (supra) had also relied upon the

judgment passed by the Apex Court in Ajay Kumar Choudhary â€"Vs- Union of India (supra).

On going through the judgment of this Court in Md. Zakir Hussain (supra), coupled withthe para 2.1.8 of the Manual of Departmental Proceedings,

this Court finds that the petitioner has made out a case for interference with the suspension order dated 29.11.2017, as the respondents have not

submitted a memorandum of charge/charge-sheet to the petitioner within the 3(three) months suspension period of the petitioner. Also, the

respondents have not taken the stand, to the effect that there has been a review of the suspension order, to justify the extension of the period of

suspension of the petitioner beyond 3(three) months.

In view of the reasons stated above,       writ petition is allowed. The suspension order dated 29.11.2017 is set aside and the

respondents are directed to reinstate the petitioner into service.

It is need less to observe that this order will not having any bearing on the decision ofthe respondents to continue with the disciplinary proceedings

that may be initiated against the petitioner.