Rama Nath Barman vs State Of Assam And 5 Ors

Heard Mr. S.C. Biswas, learned counsel appearing for the writ petitioner. Also heard Mr. P. Nayak, learned standing counsel, BTC appearing for the

respondent Nos. 2, 3 and 4, Mr. J. Handique, learned standing counsel, Revenue Department representing the respondent No. 1. Mr. J.K. Parajuli,

learned Jr. Govt. Advocate, Assam has appeared for the respondent Nos. 5 and 6.

As per the case projected in the petition, the writ petitioner herein was appointed as Lat Mandal and posted at the Srijangram Revenue Circle in the

district of Bongaigaon. Thereafter, he was transferred and posted in the same capacity in the Bijni Revenue Circle. While serving as Lat Mandal

under the Bijni Revenue Circle, the petitioner was arrested on 21-09-2021 in connection with Bijni P.S. Case No. 390/2021 registered under Section

120(B)/ 420/ 406/ 409/ 468/ 471 of the IPC and he was detained in custody for more than 48 hours. Such being the position, by virtue of Rule 6(2) of

the Assam Services (Discipline and Appeal) Rules, 1964, the petitioner was placed under suspension w.e.f. 21-09-2021. He is still under suspension.

The petitioner has approached this Court by filing the instant writ petition inter-alia alleging that till today neither any memorandum of charge has been

furnished to him nor any departmental proceeding has been initiated against the petitioner. Notwithstanding the same and despite the clear mandate of

the Hon’ble Supreme Court laid down in the case of Ajay Kumar Choudhury Vs. The Union of India & Anr. reported in (2015) 7 SCC 291

neither the order of suspension has been reviewed by the authorities nor has the same been revoked. Situated thus, a prayer has been made to set

aside the order of suspension and direct reinstatement of the petitioner in his service.

Mr. Biswas, learned counsel for the petitioner has placed reliance on the order dated 04-10-2019 passed by the Division Bench in W.P.(C) No.

3218/2019 (Rakibuddin Ahmed Vs. The State of Assam and Ors.) to submit that the Division Bench of this Court has already held that the principles

laid down in the case of Ajay Kumar Choudhury (Supra) would be attracted even in a case of deemed suspension under Rule 6(2) of the Rules of

1964 and therefore, the order of suspension has lapsed on expiry of 90 days. Hence, the impugned order of suspension be set aside.

Opposing the said prayer, Mr. Nayak, learned standing counsel, BTC has argued that the law laid down in the case of Ajay Kr. Choudhury (Supra)

was in context of regular departmental proceeding and the order of suspension issued in ordinary course of business and not when an official is

arrested in connection with a criminal proceeding. Therefore, submits Mr. Nayak, the decision in the case of Ajay Kr. Choudhury (Supra) would not

be applicable in this case. Mr. Nayak has also placed reliance on the judgment and order passed by this Court in W.P.(C) No. 6842/2018 (Atfur

Rahman Vs. The State of Assam) to argue that in a case of this nature the petitioner cannot claim automatic revocation of suspension on the expiry of

90 days from the date of commencement of suspension.

I have considered the submission advanced by the learned counsel for both sides. There is no dispute at the bar that the petitioner was arrested on 21-

09-2021 in connection with Bijni P.S. Case No. 390/2021 and he was detained in police custody for more than 48 hours. Rule 6(2) of the Rules of

1964 provides that a Govt. servant who is detained in custody whether on criminal charge or otherwise for a period exceeding 48 hours shall be

deemed to have been suspended with effect from the date of such detention by an order of appointing authority and shall remain under suspension

until further order(s). If that be so, it is apparent that the present is a clear case of deemed suspension.

A perusal of the decision rendered by the Hon’ble Supreme Court in the case of Ajay Kr. Choudhury (Supra) goes to show that the observation

made therein was primarily on the basis of legal expectation of a delinquent for speedy trial and it was in that context the Hon’ble Supreme Court

has made the following observations in paragraph 21.

“ 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.â€​

It is no doubt correct that in Ajay Kumar Choudhury (Supra) it was not a case of deemed suspension due to detention in police custody. However,

after the decision of the Division Bench rendered in the case of Rakibuddin Ahmed (Supra) there can be hardly any doubt on the fact that the

principles laid down in the case of Ajay Kumar Choudhury (Supra) would be attracted even in case of deemed suspension under Rule 6(2) of the

Rules of 1964. Moreover, even under Rule 6(2) of the Rules of 1964, an order of deemed suspension is to remain in force until further order. If that be

so, it is evident that the respondent authorities would be duty bound to review the order of suspension at an appropriate stage, which would be 90 days

in view of the decision rendered in the case of Ajay Kumar Choudhury (Supra) and pass appropriate order. Under the circumstances, this Court is of

the view that regardless of the ground on which the suspension has been ordered, if there is no departmental proceeding initiated within a period of 03

months from the date of suspension, it would be incumbent upon the authorities to review the order of suspension and in the event the same is sought

to be extended, a reasoned order would have to be passed by the competent authority justifying the extention of period of suspension. Similar is the

view expressed by the learned Single Judge in the case of Atfur Rahman (Supra) by interpreting Rule 6(2) of the Rules of 1964.

In view of the above, I dispose of this writ petition at the stage of motion hearing by directing the respondent No. 4 to review the order of suspension

and pass appropriate order(s) therein in the light and the observations made hereinabove, within a period of 07 days from the date of receipt of a

certified copy of this order.

It is made clear that if the order of suspension of the petitioner is extended for further period, the respondent No. 4 shall record reasons for doing so

and furnish a copy of such order to the writ petitioner.

With the above observation, this writ petition stands disposed of.