Rohini Gogoi vs State Of Assam And Ors

Heard Mr. LN Dihingia, learned counsel for the petitioner. Also heard Mr. P.N. Goswami, learned Counsel for the respondent, PHED.

The petitioner is serving as a senior assistant in the office of the Executive Engineer, North Lakhimpur, PHED. By the office order no. 63 of 2019-

2020 dated 22.11.2019 of the Executive Engineer, PHE, North Lakhimpur division, he was placed under suspension pending a departmental

proceeding. It is stated and also confirmed by the respondent PHED that after the order of suspension dated 22.11.2019, no departmental proceeding

has been initiated against the petitioner and no show-cause as required under Rule 9 of the Assam Service (Discipline & Appeal) Rules, 1964 has

been issued.

In this writ petition, the order of suspension dated 22.11.2019 is assailed on the ground that as laid down by the Supreme Court in paragraph 21 of

Ajay Kumar Choudhury vs. Union of India reported in (2015) 7 SCC 29,1 no memorandum of charges/charge-sheet had been served within a period

of 3 (three) months from the date of the order of suspension. Accordingly, it is contended that as the charge-sheet had not been served within the

period of 3 (three) months), the same is no longer sustainable in law.

Paragraph 21 of Ajay Kumar Choudhury is extracted 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 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 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€​

The law laid down in paragraph 21 of Ajay Kumar Choudhury provides that a suspension order should not be extended beyond a period of 3 (three)

months, if within this period, the memorandum of charges/charge-sheet has not been served on the delinquent, or if a reasoned order is not passed for

the extension of the suspension, in the event, the memorandum of charges/charge sheet has been served.

In the circumstances, as the memorandum of charges/charge-sheet had not been served within a period of 3 (three) months, we are the view that

the order of suspension dated 22.11.2019 is no longer sustainable in law. Accordingly, the order of suspension dated 22.11.2019 is set aside.

However, paragraph 21 of the Ajay Kumar Choudhury also provides that 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 the delinquent may have and which he may

misuse for obstructing the investigation against him. Further, the Government may also prohibit the delinquent from contacting any person, or handling

records and documents till the stage of his having to prepare his defence.

Accordingly, having interfered with order of suspension dated 22.11.2019 on the ground that no memorandum of charges/charge-sheet have been

submitted within a period of 3 (three) months, we further provide that if the respondent authority is of the view that continuation of the petitioner in his

original place of posting would be detrimental to the enquiry/investigation to be made against him, the respondent authorities may transfer the petitioner

to any suitable place as per their discretion and also by a written order prohibit the petitioner from coming into contact with any person or handling any

record or document as may be prescribed till the stage of him requiring to prepare his defence, in the event, of a proceeding been drawn up against

him.

The writ petition stands allowed to the extent indicated above subject to the observations and respondent to take appropriate action against the

petitioner as indicated therein.