The orders of suspension which are not reviewed within a period of 90 days and where the show cause notice has not been issued should be set aside and quashed: Gauhati High Court

Page No.# 1 14 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 853 2020 NIPU KALITA S O LT. JOGEN KALITA SIVA SHAKTI ENCLAVE P.S. HATIGAON DIST. KAMRUP ASSAM THE STATE OF ASSAM AND 4 ORS. REP. BY THE PRINCIPAL SECY. TO THE HOME AND POLITICAL DEPTT. GOVT. OF ASSAM DISPUR GHY. 06 2:THE SECY. TO THE GOVT. OF ASSAM HOMEDEPTT GHY. 06 3:THE SECY. TO THE HOME AND POLITICAL DEPTT GOVT. OF ASSAM GHY. 06 4:THE DIRECTOR GENERAL OF POLICE GOVT. OF ASSAM GHY. 7 5:DY. COMMISSIONER OF POLICE EAST POLICE GUWAHATI 06 Page No.# 2 14 Advocate for the Petitioner : MR I RAFIQUE Advocate for the Respondent : GA ASSAM S O LT. GAGAN SONOWAL R VILL. KADAM KACHARI P.O. CHARAI MORIA P.S. BOGINADI DIST. LAKHIMPUR PIN 787032 THE STATE OF ASSAM AND 4 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPTT. DISPUR GUWAHATI 781006 2:THE JOINT SECRETARY TO THE GOVT. OF ASSAM FINANCEDEPTT. DISPUR GUWAHATI 6 3:THE ACCOUNTANT GENERAL GUWAHATI 29 4:THE EXECUTIVE ENGINEER PHE DIVISION NORTH LAKHIMPUR 5:THE DEPUTY COMMISSIONER Advocate for : MR. L N DIHINGIA Advocate for : SC P H E appearing for THE STATE OF ASSAM AND 4 ORS Page No.# 3 14 SHRAWAN KR JHA S O LT. SURENDRA JHA R O KALIBARI RAILWAY COLONY QRT.NO. DS 11H P.S. LATASIL DIST KAMRUP METRO THE STATE OF ASSAM AND 4 ORS REP. BY THE PRINCIPAL SECRETARY TO THE HOME AND POLITICAL GOVT. OF ASSAM GHY 6 2:THE SECRETARY TO THE GOVT. OF ASSAM HOMEDEPARTMENT GHY 06 3:THE SECRETARY HOME AND POLITICAL DEPARTMENT GOVT. OF ASSAM GHY 6 4:THE DIRECTOR GENERAL OF POLICE GOVT. OF ASSAM GHY 07 5:THE SUPERINTENDENT OF RAILWAY POLICE GUWAHATI 12 Advocate for : MR I RAFIQUE Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS Page No.# 4 14 THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM. FINANCE DEPARTMENT DISPUR GUWAHATI 781006 UNDER SUSPENSION) S O LATE GAGAN SONOWAL RESIDENT OF VILLAGE KADAM KACHARI PO CHARAI MORAI PS BOGINADI DIST LAKHIMPUR ASSAM 787032 2:THE ADDITIONAL SECRETARY TO THE GOVT. OF ASSAM FINANCE(ESTABLISHMENT B) DEPARTMENT GUWAHATI 781006 3:THE DEPUTY COMMISSIONER 4:THE ACCOUNTANT GENERAL GUWAHATI 29 5:THE EXECUTIVE ENGINEER PHE DIVISION NORTH LAKHIMPUR 6:THE TREASURY OFFICER Advocate for : MR. L N DIHINGIA Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 5 ORS Page No.# 5 14 SANJOY KR JHA S O LATE SURENDRA JHA RESIDENT OF KALIBARI RAILWAY COLONY QUARTER NO. DS 91 A. PS LATASIL DIST KAMRUP M ASSAM THE STATE OF ASSAM AND 4 ORS TO BE REPRESENTED BY THE PRINCIPAL SECRETARY TO THE HOME AND POLITICAL DEPARTMENT GOVT. OF ASSAM DISPUR GUWAHATI 6 ASSAM 2:THE SECRETARY TO THE GOVT. OF ASSAM HOME(A) DEPARTMENT DISPUR GUWAHATI 6 ASSAM 3:THE SECRETARY TO THE HOME AND POLITICAL DEPARTMENT GOVT. OF ASSAM DISPUR GUWAHATI 6 ASSAM 4:DIRECTOR GENERAL OF POLICE GOVT. OF ASSAM GUWAHATI 7 ASSAM 5:THE DEPUTY COMMISSIONER OF POLICE GUWAHATI 01 Advocate for : MR I RAFIQUE Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS Page No.# 6 14 HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI Date : 22 04 2021 All these writ petitions which raise a similar issue with regard to suspension of Government servant and the need for periodic review of the same are taken up for disposal at the admission stage itself. This Court has also noted that the respondent authorities have filed their affidavit in opposition in few of the cases with a further submission that the stand taken in the said affidavit would also cover the rest of the other cases. 2. Before going to the issue which calls for determination it would be convenient to state the facts of the cases in brief. 3. The petitioner in WP(C) 853 2020 Shri Nipu Kalita is a Police Officer and was posted as SI in the Dispur Police Station. Vide an order dated 09.02.2019 the petitioner was placed under suspension as he was arrested in connection with Dispur PS Case No.363 2019 under Section 392 IPC. However the order of suspension dated 09.02.2019 does not provide that the suspension was a deemed one. On the other hand it provides that the same was done for gross misconduct negligence and dereliction of duties. Thereafter the formal charges were framed vide show cause notice dated 06.04.2019 along with a statement of allegation which was replied to by the petitioner which was received on 01.05.2019. 4. The petitioner in WP(C) 2409 2020 Shri Ajit Sonowal was working as an Accounts Officer in the office of the Executive Engineer North Lakhimpur PHE Division. He was arrested in connection with ACB PS Case No. 15 2019 under Section 7(a) of the Prevention of Corruption Act 1988. Accordingly vide the impugned order dated 07.12.2019 he was suspended after he was released on bail from custody. The grievance of the petitioner is that no Departmental Proceeding has been initiated against him and no review of the suspension has been done. Page No.# 7 14 5. The petitioner in WP(C) 4239 2020 Shri Sanjay Kr. Jha is a Police Officer and was posted as Constableat the Panbazar Police Station Traffic Branch. Vide an order dated 30.04.2020 the petitioner was placed under suspension as he was arrested in connection with Fatasil Ambari PS Case No.169 2020 under Section 188 392 of the IPC. However the order of suspension dated 30.04.2020 does not provide that the suspension was a deemed one. On the other hand it provides that the same was done for gross misconduct and dereliction of duties. Thereafter the formal charges were framed vide show cause notice dated 01.07.2020 along with a statement of allegation which was replied to by the petitioner on 10.07.2020. 6. The petitioner in WP(C) 4399 2020 Shri Shrawan Kumar Jha is an employee of the Assam Police. Vide an order dated 04.02.2020 the petitioner was placed under suspension as he was arrested in connection with GRPS Case No.02 04 2020 under Section 384 34 of the IPC. However the order of suspension dated 04.02.2020 does not provide that the suspension was a deemed one. On the other hand it provides that the same was done pending departmental proceeding. Thereafter the formal charges were framed vide show cause notice dated 04.05.2020 along with a statement of allegation which was replied to by the petitioner on 27.07.2020. It is the case of the petitioner that neither any memo of charge was served within a period of three days nor there was any review of the suspension order 7. The petitioner in WP(C) 5523 2020 Shri Ajit Sonowal has approached this Court for second occasion by filing this writ petition. As narrated above while working as an Accounts Officer in the office of the Executive Engineer North Lakhimpur PHE Division he was arrested in connection with ACB PS Case No. 15 2019 under Section 7(a) of the Prevention of Corruption Act 1988. Accordingly vide an order dated 07.12.2019 he was suspended after he was released on bail from custody. The prolong suspension without any order of review is the subject matter of challenge in the earlier WP(C) 2409 2020 and during the pendency of the said writ petition a Departmental Proceeding was initiated against him vide notification dated 10.08.2020 whereby it was communicated that there was no decision to revoke the suspension order dated 07.12.2019. The petitioner contends that review after expiry of 60 days from the date of suspension is no review in the eye of law and therefore intervention has been prayed for. Page No.# 8 14 8. I have heard Shri I Rafique learned counsel for the petitioners in WP(C) 853 4239 4399 2020 as well as Shri S Borthakur learned counsel for the petitioners in WP(C) 2409 5523 2020. I have also heard Shri D Nath learned Addl. Senior Government Advocate Assam and Shri P Nayak learned Standing Counsel Finance Department Assam. The records of the case pertaining to Shri Ajit Sonowal have also been produced in original. 9. The learned counsel for the petitioners have contended that the issue is no longer res integra in view of the categorical determination of the issue by a Division Bench of this Hon’ble Court in the case of Rekibuddin Ahmed Vs. State of Assam WP(C) 3218 2019. It is contended that the Division Bench was answering a reference on the point “Whether in a case covered by Rule 6(2) of the Assam ServicesRules 1964 the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury would have automatic application.” 10. The Division Bench in paragraph 15 of the said judgment of Rekibuddin Ahmed supra) held as follows: “ 15. We have consciously applied our mind to the query raised by the learned Single Judge. Though the case of Ajay Kumar Choudhury(Supra) is a case where suspension order was issued pending drawal of Disciplinary Proceeding and not a case of deemed suspension the observation made by the Hon’ble Supreme Court in paragraph 20 whereby the analogy of Section 167(2) Cr.P.C. 1973has been brought in we are persuaded to hold that the principles laid down in the said case cannot be restricted to an order of suspension issued only on contemplation of drawal of Disciplinary Proceeding and not for deemed suspension. Page No.# 9 14 In our view the issue should be seen from the perspective of the consequence and effect of suspension which is the same in both the cases. We also feel that no prejudice whatsoever would be caused to the Department by such interpretation inasmuch as no blanket order of revocation of suspension is passed and it is left to the Department to make periodic review within a period of 3(three) months and decide as to whether such suspension is required to be extended or not by assigning reasons. Whether such reasons are justified and germane can be the subject matter of a separate challenge. In view of the aforesaid discussion we answer the reference by holding that the principles laid down in the case of Ajay Kumar Choudhury(Supra) would also be applicable in case of deemed suspension under Section 6(2) of the 1964 Rules.” 11. It is contended on behalf of the petitioners that after such determination by a Division Bench there is hardly any scope for a different interpretation. Therefore the petitioners contend that the impugned orders of suspension be set aside on the ground of failure to review the same within the specified time 12. The only controversy if any has arisen by the observation of this Court in WP(C) 2409 2020 in the order dated 04.09.2020 which recorded the submission of the learned Standing Counsel Finance Department that an earlier decision of the Supreme Court in the case of Union of India Vs. Rajiv Kumar reported in6 SCC 516 was not placed before Hon’ble the Supreme Court while deciding the case of Ajay Kumar Choudhury Vs. the Union of India & Anr. reported in 7 SCC 291 and in the aforesaid case of Rajiv Kumarit was held that deemed suspension under the law would remain until it is revoked by the authorities by further orders. The said case of Rajiv Kumarwas in connection with the Central Civil Services Rules. 13. Apart from the fact that the said observation dated 04.09.2020 was at an interlocutory stage in paragraph 5 of the said order it is only the submission of the learned Standing Counsel of the Finance Department which has been recorded and there was no finding as such of the Court. 14. When the issue concerning the present writ petitions has been conclusively decided by Page No.# 10 14 a Division Bench of this Court this Court as a Single Bench has no other option but to follow the said decision. In any case the Division Bench in the case of referencehas cited elaborate reasons which are in tune with the judgment of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury in the judgment dated 04.10.2019 which reads as follows: “ 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 Cr.P.C. of 1973 contains a new proviso which has the effect of circumscribing the power of the Magistrate to authorise detention of an accused person beyond 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 1986SCC 481 and more so of the Constitution Bench in Antulay 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 Chargesheet 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 15. Though Shri D Nath learned Addl. Senior Government Advocate Assam and Shri P Nayak learned Standing Counsel Finance Department had attempted to make an argument that the law laid down by the Division Bench in the case of Rekibuddin Ahmedmay not be the correct interpretation this Court apart from disagreeing with such contention is also left with no scope to take a different view than the Larger Bench. In their attempt to criticize the judgment of a Division Bench before this Court which is the Single Bench certain case laws were cited which are given below: Page No.# 11 14 1. WA No.3370 20092. 2017GLT 1323. AIR 1965 SC 17674. AIR 2009 Cal 11405. IIMLJ 309 6. WP(C) 8134 2017 Judgment dated 13.09.2017 7. WP(C) 19302 20148. LPA No. 778 20099. WA No.3957 201910. Special Appeal No.576 2019 by stating that the same did not consider the case of Rajiv Kumarthis Court has noticed that the issue for determination in the case of Rajiv Kumarwas wholly different from the issue which is the subject matter of the present lis. For ready reference paragraphs 10 and 11 of the case of Rajiv Kumar is extracted hereinbelow: “ 10. In support of the appeals learned counsel for the Union of India submitted that if the interpretation put by the High Court is accepted the same would mean addition of words to Rule 10(2). The language used in the said provision is clear and unambiguous and therefore there is no scope for making any alteration in the statutory texture. It was further submitted that by accepting the interpretation Sub Rule 5(a) of Rule 10 would also be rendered 11. Per contra respondents employees who appeared in person submitted that the interpretation brings out the true essence of a deeming provision which cannot be extended beyond the purpose for which it was enacted. On a combined reading of Rules 10(2) 10(3) 10(4) and 10(5)(a) it is claimed for the respondents that the order of suspension in a case covered under Rule 10(2)(a) has limited operation for the period of detention and not beyond it. Further it is submitted that an employee cannot be placed under suspension for an indefinite period of time. Though suspension is not penal in character yet it has serious civil consequences. In the fact till date there has been practically no progress in criminal proceedings and the departmental actions initiated.” 18. A reading of the case of Rajiv Kumar would show that the same has no manner of application with the present lis and was rightly not placed before the Hon’ble Supreme Court while deciding the case of Ajay Kumar Choudhury. Page No.# 13 14 19. The records of only the case of Shri Ajit Sonowal have been placed before this Court and there is no indication whatsoever that there was any attempt to make periodic review in accordance with law of the suspension of the petitioners. 20. At the stage noticing that this Court is not inclined to have a view different from the view of the Division Bench in the case of Rekibuddin Ahmeda frail submission has been made by Shri Nayak to refer the matters before a Larger Bench. Such submission is wholly without any substance and rather can be termed as outrageous and in gross defiance of judicial decorum inasmuch as this Court as a Single Bench cannot question the findings of a Larger Bench. In fact the Hon’ble Supreme Court has laid down that even a decision of a Co ordinate Bench is binding on another Co ordinate Bench and only if some major difference in opinion occurs the Court may refer the matter to Hon’ble the Chief Justice to consider whether the issue needs to be placed before a Larger Bench. In fact the said exercise has already been performed so far as the present issue is concerned as the judgment in Rekibuddin Ahmed has been rendered in a reference made by a learned Single Judge in view of conflicting views. The matter having finally put to rest by a conclusive decision by the Division Bench in the judgment dated 04.10.2019 coupled with the fact that the said decision was not put to further challenge and has attained finality the present objection raised by Shri Nayak learned Standing Counsel is not only legally untenable but 21. In view of the aforesaid facts and circumstances this Court has no other option but to follow the decision of the Division Bench in the case of Rekibuddin Ahmed (supra Accordingly the orders of suspension which are not reviewed within a period of 90 days and where the show cause notice has not been issued are set aside and quashed. This Court would also like to add the observation that no prejudice whatsoever would be caused to the Department inasmuch as no blanket order of revocation of suspension is passed and it is left with the Departments to make periodic review within a period of three months and to decide as to whether such suspension is required to be extended by assigning reasons. Further in tune with the observation of the Division Bench this Court is also hasten to add that the respective Departments would be at liberty to transfer the petitioners in any non sensitive Page No.# 14 14 22. The writ petitions accordingly stand disposed of 23. The records which pertain to only one case of Shri Ajit Sonowal are returned herewith JUDGE

Summary: Orders of suspension that are not checked within 90 days and for which no show cause notification has been released are set aside and quashed, the observation that no prejudice, whatsoever would be caused to the Department inasmuch as, no blanket order of revocation of suspension is passed. The High Court of Gauhati in the case of Shri Ajit Sonowal vs The State of Assam and 4 Ors. [WP(C)/853/2020] by Single Bench consisting of Hon’ble Shri Justice Sanjay Kumar Medhi. The facts of the case are the petitioner was working as an Accounts Officer in the office of the Executive Engineer. He was arrested in connection with ACB PS under Section 7(a) of the Prevention of Corruption Act, 1988. Accordingly, he was suspended after he was released on bail from custody. The grievance of the petitioner is that no Departmental Proceeding has been initiated against him and no review of the suspension has been done. The learned counsel for the petitioners has contended that the issue is no longer res Integra in view of the categorical determination of the issue by a Division Bench of this Hon’ble Court in the case of Rekibuddin Ahmed Vs. The state of Assam, It was contended that the Division Bench was answering a reference on the point – “Whether in a case covered by Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury would have automatic application.” Learned Standing Counsel on the other hand. had attempted to make an argument that the law laid down by the Division Bench in the case of Rekibuddin Ahmed may not be the correct interpretation, this Court apart from disagreeing with such contention, also left with no scope to take a different view than the Larger Bench. The Court while relying on the case of Rekibuddin Ahmed Vs. The state of Assam, wherein, it was held that “the orders of suspension which are not reviewed within a period of 90 days and where the show cause notice has not been issued are set aside and quashed. This Court would also like to add the observation that no prejudice, whatsoever would be caused to the Department inasmuch as, no blanket order of revocation of suspension is passed and it is left with the Departments to make periodic review within a period of three months and to decide as to whether such suspension is required to be extended by assigning reasons.” Further, in tune with the observation of the Division Bench, this Court is also hastened to add that the respective Departments would be at liberty to transfer the petitioners in any non-sensitive posts.