Meghalaya High Court
Date Of Decision: 10.01.2025 vs State Of Meghalaya Represented By The … on 10 January, 2025
Author: W. Diengdoh
Bench: W. Diengdoh
2025:MLHC:1
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 288 of 2021
Date of Decision: 10.01.2025
Shri. Dipankar Das
Aged about 53 years
Son of (L) Shri. Debobrata Kar
R/o Howell Road, Laban, Shillong-793004,
East Khasi Hills District, Meghalaya.
....Writ Petitioner
-Versus-
1. State of Meghalaya represented by the Chief Secretary Shillong.
2. Commission Secretary of the Education Department
3. The Director of School Education and Literacy, Meghalaya,
Shillong
4. Inquiry Officers Director of School Education and Literacy,
Meghalaya, Shillong
5. The District School Education Officer, East Khasi Hills District,
Shillong
6. The Principal, Government Girl's Higher Secondary School,
Shillong.
....Respondents
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. H.L. Shangreiso, Sr. Adv. with
Mr. T. Dkhar, Adv.
For the Respondent(s) : Mr. N.D. Chullai, AAG with
Ms. R. Colney GA and
Ms. Z.E. Nongkynrih, GA
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i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT
1. The petitioner is an Assistant Teacher in the Government Girl’s
Higher Secondary School, Shillong who was placed under suspension
vide Order No.DSEL/SEC-NG/MISC/28/2015/42 dated 15.09.2017
issued by the Director of School Education and Literacy Meghalaya,
following his arrest made on the basis of an FIR dated 09.09.2017 which
was lodged at the Laban Police Station, Shillong and later registered as
Laban P.S. Case No. 97(9) 2017 under Section 7/8 of the POCSO Act,
2012 read with Section 504 IPC.
2. Though the petitioner was later released on bail on 30.10.2017,
the said suspension order remained in force without any extension even
after a lapse of 3 months of the same being issued. It is an admitted fact
that after 5 months of the suspension of the petitioner, a Departmental
Enquiry, dated 02.02.2018 was constituted comprising of two members
with a direction to the Enquiry Officer to enquire into the circumstances
leading to the suspension of the petitioner and to submit a report thereof.
3. It is the case of the petitioner that till the date of filing of this
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petition, no show cause notice or article of charges was received from
the said Enquiry Officer. However, the Disciplinary Authority vide letter
dated 02.02.2018 bearing No. DSEL/SEC.G/Misc/18/2017/34 issued a
Show Cause Notice to the petitioner under Rule 9 of the Meghalaya
Services (Discipline & Appeal) Rules, 1964 as to why the penalties
prescribed in Clause (i) to (vi) of Rule 7 of the said Rules should not be
inflicted upon the petitioner on the charges based on the statement of
allegations made therein.
4. It is also the case of the petitioner that on 04.01.2018 he had
made a representation before the Director, School Education and
Literacy, Shillong to allow him to resume his services on the ground that
the initial suspension order dated 15.09.2017 has not been extended in
spite of the same having exceeded the mandatory three months’ period
without any extension thereof. Finding no response to this
representation, the petitioner has filed two reminders on 21.02.2018 and
on 16.03.2018. In response, the relevant authority has allowed the
petitioner to draw subsistence allowance @ 75% with effect from March
2018, however no review of the suspension order was made.
5. Another aspect of the matter brought forth by the petitioner is
that no disciplinary proceedings have been drawn or proceeded against
him by the competent disciplinary authority, nor did the Enquiry Officer
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conducted any such proceedings. In fact, in course of time, one of the
Enquiry Officer, Mr. P. Ryngksai had already retired from service in the
beginning of the year 2021 and hence no effective enquiry was
conducted.
6. In this backdrop, Mr. H.L. Shangreiso, learned Sr. counsel for
the petitioner has submitted that the indefinite suspension of the
petitioner without formal proceedings till date is an act done in violation
of the law laid down by the Hon’ble Supreme Court in the case of Ajay
Kumar Choudhary v. Union of India Through Its Secretary & Anr.
reported in (2015) 7 SCC 291, particularly at para 1, 2, 3, 4, 5, 6, 7, 8, 9,
10, 20 & 21 wherein, the Apex Court has held that a suspension order
should not exceed three months or 90 days in its applicability, if the
memorandum of charges is not served upon the delinquent
officer/employee. The case of Teiborlang Sunn v. State of Meghalaya
was also referred to in this regard, wherein this Court vide order dated
28.05.2019 passed in WP(C) No. 12 of 2018 dealing with a similarly
situated case as that of the petitioner herein had disposed of the case by
directing that the prolonged suspension of the petitioner is required to be
reviewed in the light of the judgment in the case of Ajay Kumar
Choudhary (supra).
7. It is also the submission of the learned Sr. counsel that the
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show cause notice dated 02.02.2018 cannot be considered as a valid
memorandum of charges, since by then, a two-member Enquiry
Committee was already constituted by the disciplinary authority and
even then, the said memorandum of charges, if at all, has been framed
only after a lapse of 4(four) months from the date of the suspension of
the petitioner.
8. Yet again, the learned Sr. counsel has submitted that the Office
Order dated 29.08.2022 for extension of the suspension till the
conclusion of the criminal proceedings against the petitioner was only
done so as an afterthought and cannot be sustained in law as was held in
the case of Union of India & Ors. v. Dipak Mali, (2010) 2 SCC 222, para
10 & 11.
9. Per contra, Mr. N.D. Chullai, learned AAG while opposing the
stance of the petitioner, has, on behalf of the State respondents re-stated
the genesis of the case of the petitioner to say that he was suspended
from service while working as a teacher in the Government Girls’ Higher
Secondary School, Jail Road, Shillong, wherein on being accused of
having committed an offence under Section 7 and 8 of the Protection of
Children from Sexual Offences (POCSO) Act, 2012 following an FIR
lodged by the mother of the minor survivor against whom the said
offence was committed, he was immediately suspended from performing
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his teaching duties.
10. In due course, a departmental enquiry was instituted vide
order dated 02.02.2018 and the Departmental Enquiry Officer had issued
a show cause notice dated 02.02.2018 directing the petitioner to submit
his reply to the statement of allegations made against him.
11. Another limb of argument put forth by the learned AAG is that
the petitioner being involved in a case under the POCSO Act for which
criminal proceedings against him is also pending before the competent
court of jurisdiction, the Department in its wisdom has put on hold the
departmental proceedings against him in order to await the decision of
the criminal court. However, as vested by power under Rule 6(b) of the
Meghalaya Services (Discipline & Appeal) Rules, 2011, the suspension
of the petitioner has been extended until the conclusion of the said
criminal proceedings.
12. In response to the reliance of the petitioner in the case of Ajay
Kumar Choudhary (supra), the learned AAG has submitted that in that
case, the Hon’ble Supreme Court has not interfered with the order of
suspension of the delinquent therein though the charge sheet was filed
after three months from the date of the final order of suspension, which
is a case similarly situated as this instant case.
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13. The learned AAG has also relied on the case of P. Kannan v.
Commissioner for Municipal Administration & Ors. reported in 2022
SCC Online Mad 1154, para 29, 31, 33 & 34 to say that in this case, the
Full Bench of the Madras High Court has come to a finding that the
judgment in the case of Ajay Kumar Choudhary (supra) does not lay
down an absolute proposition of law that an order of suspension cannot
be continued beyond three months if the memorandum of charges/charge
sheet has not been served within such time. In fact, in the Meghalaya
Services (Discipline & Appeal) Rules, 2011, for an employee who is
detained in custody, the appointing authority is empowered to place such
employee under suspension without any time frame prescribed for the
same. Rule 6 (5) (b) of the said Rules of 2011 has clearly prescribed that
the suspension of a Government servant shall continue until termination
of all or any such proceedings, further submits the learned AAG.
14. In a similar case involving a school teacher, the Hon’ble
Madras High Court in the case of K. Ramachandran v. The Chief
Educational Officer & Ors, has vide order dated 24.08.2023 in W.P.(MD)
No. 17695 of 2023 refused to revoke the suspension of the petitioner
therein who is a school teacher and is involved in a criminal proceedings
necessitating his suspension, submits the learned AAG.
15. From the submission of the learned counsels for the respective
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parties, facts and circumstances as noted hereinabove not required to be
reiterated unless warranted, what can be understood is that the basic
issue to be decided herein is whether the alleged prolonged suspension of
the petitioner without extension of the same within 90 days of the initial
issuance of such order can be sustained in law.
16. It will be useful to look into the process by which the
petitioner was placed under suspension in the first instance. The order
dated 15.09.2017 revealed that he was placed under suspension
following his arrest in connection with Laban Police Station Case No.
97(9) 17 under Section 7/8 POCSO Act 12 read with Section 206 IPC.
Nothing is said as to the relevant rules under which the petitioner was
placed under suspension. However, the Office Order dated 29.08.2022
by which the petitioner’s suspension was extended has qualified the
earlier order dated 15.09.2017 to say that he was placed under
suspension in exercise of the power under Rule 6(b)[sic 6(5)(b)] of the
Meghalaya Services (Discipline & Appeal) Rules, 2011.
17. It is a matter of record that since the petitioner was placed
under suspension on 15.09.2017, no formal disciplinary proceedings was
initiated against him within 90 days of such suspension. It was only on
02.02.2018 that an Enquiry Committee, consisting of two members was
constituted to conduct the departmental enquiry against him.
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Simultaneously, on the same date, that is, on 02.02.2018, the
Disciplinary Authority had issued a Show Cause Notice to the petitioner
along with the statement of charges calling upon him to response to the
same within 10 days on receipt of such show cause notice. The Enquiry
Officer, namely, Shri P. Ryngksai was also directed to conduct the
inquiry and to submit his report on his findings thereof.
18. It is also a matter of record that the petitioner on receipt of the
said show cause notice had responded to the same vide letter dated
08.02.2018 seeking permission to inspect relevant documents. Nothing is
brought on record to show that the enquiry committee had replied to
such request. This has then led to the petitioner to seek revocation of his
suspension by his communication dated 04.01.2018 and reminders dated
21.02.2018 and 16.03.2018 respectively.
19. The relevant authority has failed to response to the prayer of
the petitioner for revocation of his suspension and instead, after a long
period of time, on 29.08.2022 had issued the Office Order for extension
of the initial suspension order.
20. It is also the assertion of the petitioner that the Enquiry
Officer, Shri P. Ryngksai has since retired from service in the year 2021.
The concerned authority has not taken any steps for reconstitution of a
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fresh Enquiry Committee and as such, the disciplinary proceedings
against the petitioner has been kept in limbo. This has indeed cause
prejudice against the petitioner.
21. On perusal of the authority set out in the case of Ajay Kumar
Choudhary (supra) at para 21 of the same, the Apex Court has held 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 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 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.”
22. The reliance of the State/respondent on the case of P. Kannan
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(supra) to say that the Full Bench of the Madras High Court has held that
the judgment of the Apex Court in the case of Ajay Kumar Choudhary
(supra) does not lay down absolute proposition of law that suspension
cannot be continued beyond the period of three months if the
memorandum of charge/charge-sheet has not been served within three
months, or if the memorandum of charges/charge-sheet is served without
reasoned order of extension is applicable to the case of the petitioner
cannot be accepted at face value as the proposition expounded by the
Apex Court in the case of Ajay Kumar Choudhary (supra) is not an
entirely new principle propounded. The Apex Court in the case of Dipak
Mali (supra) while referring to sub-rules (6) & (7) of Rule 10 of the
Central Civil Services (CCA) Rules, 1965 as amended, which rule
briefly stated, stipulates that an order of suspension shall be reviewed by
the authority competent to modify or revoke the same, before the expiry
of 90 days from the date of such suspension, otherwise such suspension
becomes invalid after the period of 90 days, if not extended after review.
23. Again, at para 21 of the Ajay Kumar Choudhary case, (supra)
the Apex Court has disapproved the stand of the Central Vigilance
Commission that pending criminal investigation, departmental
proceedings are to be kept in abeyance as was done in the case of the
petitioner. On this ground alone, the said Office Order dated 29.08.2022
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(supra) is liable to be struck down.
24. In a similarly situated case, this Court in the case of Teiborlang
Sunn (supra), relying on the authority cited in the case of Ajay Kumar
Choudhary, at para 17 of the same has observed as follows:
“17. By the said judgment it is postulated that a suspension
order should not extend beyond three months subject to other
conditions such as filing of charge sheet etc., and if charge
sheet has been filed, a reasoned order must be passed to justify
the extension of suspension. As such, pendency of a criminal
trial will not automatically render a person ineligible to
reinstatement in service. With regard to the Departmental
Proceedings, notwithstanding the duration that he has been
kept under suspension, the enquiry as conducted and report as
submitted though not under challenge cannot come within the
meaning, or within the four corners of a duly conducted
Department Proceedings.”
25. Under the facts and circumstances of the case of the petitioner
and the contention and submission of the respective parties herein, this
Court is of the opinion that the principle propounded by the Apex Court
in the case of Ajay Kumar Choudhary (supra) at para 21 in the context of
the 90 days’ period of suspension of a delinquent employee which ought
to be reviewed, but if not done so, would render the said suspension
order infructuous is applicable to the case of the petitioner herein.
26. Again, adverting to the peculiar facts and circumstances of the
case of the petitioner herein, following the law of precedent, this Court is
bound to adhere to the proposition of law as laid down in the case of
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Ajay Kumar Choudhary (supra), which even otherwise would prevail
over the said Rule [6(5)(b)] of the Meghalaya Services (Discipline &
Appeal) Rules, 2011.
27. As far as the prayer of the petitioner for payment of the
subsistence allowance, the learned Sr. counsel for the petitioner has not
made any submission in this regard. The State/respondent has however
adverted in its affidavit-in-opposition that 75% of the subsistence
allowance of the petitioner has been paid and the further claim of
enhance entitlement has also been processed. This Court would allow the
process to be concluded as far as this issue is concerned.
28. In view of the above, this Court hereby directs the relevant
authority to reconsider the case of the petitioner as to the order of his
suspension and to reinstate him in service, even to the extent of placing
him in any administrative position, if permissible under the rules,
pending conclusion of the criminal proceedings against him.
29. Accordingly, this petition is disposed of. No costs.
Judge
Signature Not Verified
Digitally signed by 13
TIPRILYNTI KHARKONGOR
Date: 2025.01.10 16:01:21
PST
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