WP(C) 5989/2010 BEFORE THE HON’BLE MR.JUSTICE U.B. SAHA Judgment and Order (oral) In the instant writ petition, the petitioner has challenged the order of suspension dated 21.10.2009 issued by the Director of Elementary Education, Ass am (Respondent No.2), in exercising his power under Rule 6(1)(b) of the Assam Se rvices (Discipline and Appeal) Rules 1964 (for short ’the Rules’) on the ground that the respondent No.2 fails to comply the instructions of Government contain ed in sub-para (ii) of paragraph 2 of the office memorandum dated 5.9.1979 issue d by the Addl. Chief Secretary, Government of Assam, wherein it is stated that t he charges and the statement of allegations should be served within three months from the date of suspension failing which the Government servant concerned shou ld be reinstated. 2. Heard Mr. AM Majumder, learned senior counsel, as assisted by Mr. PK Dek a, learned counsel appearing for the petitioner as well as Mr. MR Pathak, learne d Standing Counsel, Education Department appearing for the State respondents. 3. As agreed to by the learned counsel for the parties and taking note of t he nature of prayer in the writ petition as well as the office memorandum dated 5.9.1979 (Annexure-11 of the writ petition) and the affidavit-in-opposition file d by the State respondents, the matter is taken up for final disposal at the adm ission stage. 4. The brief facts needed to be discussed for disposal of the instant writ petition are as follows :- The petitioner while working as Junior Assistant in the office of the De puty Inspector of Schools, Hailakandi was placed under suspension by the impugne d order dated 21.10.2009 due to his arrest in connection with a police case regi stered by the Hailakandi Police station against him and consequent thereto he wa s detained for more than 48 hours under the judicial custody and the said crimin al case is under investigation. Before expiry of three months from the date of o rder of suspension, the petitioner preferred a statutory appeal before the appel late authority on 29.1.2010 vide Annexure-5 to the writ petition challenging the order of suspension as stated supra, which is still pending for disposal by the statutory authority and more so, when there is a specific prescription for rein statement of a suspended employee for non-initiation of disciplinary proceeding within a period of three months. 5. Mr. Majumder, learned senior counsel whiled urging for the relief sought for, i.e. quashing the suspension order as impugned and for reinstatement of th e petitioner in service would contend that neither the statutory appellate autho rity is disposing the appeal preferred before him by the petitioner nor the disc iplinary and the appointing authority, respondent No.2 in this petition is reins tating the petitioner in service in view of the office memorandum dated 5.9.1979 (Annexure-11 to the writ petition) and as such the petitioner has no other alte rnative remedy except to approach this court with a hope and trust that this cou rt would quash the suspension order as impugned on the ground that the authority is not complying its own instruction in office memorandum, which is mandatory i n nature. 6. Learned senior counsel, Mr. Majumder, has further submitted that in the case of B.K. Sinha Vs. State of Assam & ors., 1995 (2) GLT 116, this court while disposing the similar matter, directed that the respondents therein to complete the disciplinary proceeding within a period of four months from the date of ord er and failing which the order of suspension of the petitioner of that case date d 19.11.1991 shall stand quashed. In the instant case, though the disciplinary p roceeding is not initiated till now, the State respondents are continuing the or der of suspension violating Government instructions and without any authority of law. 7. Mr. MR Pathak, learned Standing Counsel, Education Department while coun tering the contention of Mr. Majumder, submits that from the affidavit-in-opposi tion it would be apparent that by this time, the disciplinary proceeding has alr eady been initiated against the present petitioner and, therefore, the office me morandum dated 5.9.1979 though initially did not comply with, but ultimately by way of initiating a disciplinary proceeding, the same is substantially complied with. He further submits that the decision of this court in B.K. Sinha (supra) h as no direct bearing with the instant case, as the fact of that case is differen t from the case in hand. In that case, the petitioner who was suspended, against him, a disciplinary proceeding had already been initiated and which was under c hallenge and the order of suspension was not impugned therein. He further submit s that the petitioner though stated in his writ petition that he has preferred a n appeal against the order of suspension to the appropriate authority, but it ap pears that the appeal was preferred not to the appellate authority, but to the a uthority who issued the suspension order. Another contention of Mr. Pathak is th at the authority who issued the suspension order cannot hear the appeal against his own decision. However, this court may direct the Director of Elementary Educ ation, Assam (respondent No.2) to send a copy of the appeal as addressed to him to the Commissioner and Secretary to the Government of Assam, Education Departme nt (respondent No.1) who is the appellate authority as per the provisions of Ru le 14 of the Rules. For ready reference, it would be profitable to reproduce the Rule 14 of the Rules, which is as follows :- 14. Appeals against orders of suspension.- A Government servant may appeal agai nst an order of suspension to the authority to which the authority which made or is deemed to have made the order is immediately subordinate. 8. Having heard the learned counsel for the parties and going through the r ecords available before this court, it appears that the petitioner is on suspens ion for a prolonged period. Prolonged suspension allowed the officer concerned t o get the money from public exchequer without discharging any work and at the sa me time affects public interest also, but for proper inquiry of a disciplinary p roceeding, suspension is undoubtedly required. The disciplinary authority who su spended the employee concerned has also the duty to complete the disciplinary pr oceeding within reasonable time. In the instant case, though in a delayed stage the disciplinary proceeding was initiated, but it is not yet completed. In view of the above, this court is of the further opinion that a suspension order canno t be prolonged for an indefinite period, which in fact has happened in the insta nt case, as the ’suspension’ means ’action debarring or state of being debarred, especially for a time, from a function or privilege, temporary deprivation of o ne’s office or position’ or again ’state of being temporarily kept from doing or deprived of something.’ Suspension of a Government employee from his service me ans depriving a person from discharging his official duty for the period till th e order is revoked. 9. It also appears from the office memorandum dated 5.9.1979 (Annexure II t o the writ petition) that the Addl. Chief Secretary to the Government of Assam i ssued instructions to all the Departments of the Government of Assam, inter alia , that what steps are to be taken, where Government servants are placed under su spension, where disciplinary proceeding has not been initiated within a reasonab le time. In the said memorandum, it is specifically stated that charges and sta tement of allegations should be served within three months from the date of sus pension failing which the Government servant concerned should be reinstated and in cases where it is not reasonably practicable to prepare the charges for servi ce within three months from the date of suspension and the continued suspension of the Government servant is considered necessary in the public interest, the au thority concerned should move the personnel department through administ5rative d epartment well before the expiry of the period of three months with a letter det ailing the nature of the allegations and the reasons for which charges could not be prepared so that the personnel department could advice whether any further r extension of the period of suspension should be permitted or not. In that inst ant case, admittedly the disciplinary proceeding was not initiated within three months from the date of suspension and not only that the matter was not placed b efore the personnel department thorough administrative department for examining whether the prolonged suspension of the petitioner is necessary or not. At the s ame time, the disciplinary authority who suspended the petitioner also did not s end the appeal preferred by the petitioner before him instead of the appellate a uthority under the provisions of Rule 14 of the Rules to the appellate authority for decision. Mere wrong submission of appeal before an authority who has no po wer to decide the appeal would not change the nature and character of the prayer in the appeal. Being the appeal is tobe preferred before the appellate authorit y, the Commissioner and Secretary to the Government of Assam, Education Departme nt instead of filing the same to the suspending authority, it was the duty of th e suspending authority (respondent No.2) to forward the same to the appellate au thority as prescribed under Rules for disposal of the appeal in accordance with law, which admittedly he has not done and thus did injustice to the petitioner. However, as this court is not deciding the merit of the appeal preferred by the petitioner under Rules, it would not be proper to express any opinion regarding the merit of the said appeal as by this time admittedly the disciplinary p[proce eding has already been initiated and which is not the subject matter of this cas e. 10. The question which now arises for consideration is whether after initiat ion of the disciplinary proceeding, the instructions issued by the Addl. Chief S ecretary to the Government of Assam in office memorandum dated 5.9.1979 would ha ve been applied or not and the petitioner is entitled to be reinstated or not. T he aforesaid questions are not answering by this court as this court is not goin g to decide the instant writ petition on merit keeping in mind that disciplinary proceeding is not under challenge. The matter is kept open for decision by the appellate authority as the appeal is still pending. 11. In view of the above, the Director of Elementary Education, Assam (respo ndent No.2) is directed to send the appeal filed by the petitioner dated 29.1.20 10 (Annexure-5 to the writ petition) to the appropriate appellate authority, i.e . respondent No.1. The respondent No.1 is directed to treat the same as if the a ppeal is preferred before him under Rule 14 of the Rules and pass necessary orde rs on the appeal taking note of office memorandum dated 5.9.1979 subject to the condition that the same is in force. It is needless to say that while the appeal would be heard, the appellate authority should have given a chance to the petit ioner for his personal hearing or to represent by his authorised next friend. Th e petitioner is directed to furnish a copy of this order along with the copy of the writ petition including the Annexures to the respondent No.2 within ten days from today and the respondent No.2 in turn shall send all the records to the ap pellate authority (respondent No.1) within a period of further ten days and the appellate authority (respondent No.1) shall dispose the appeal by a reasoned ord er within three weeks from the date of receipt of the records from the responden t No.2. It is made clear that if the necessary order is not passed within the st ipulated period of time as stated supra then the order of suspension would autom atically stand revoked. However, the disciplinary proceeding which is already in itiated that would continue in accordance with law. 12. With the above observations and direction, this writ petition is dispose d of. No order as to cost.