Gauhati High Court
Md. Bulbul Choudhury vs The State Of Assam And 2 Ors on 21 January, 2025
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/12
GAHC010116822024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3204/2024
MD. BULBUL CHOUDHURY
S/O- LATE KUBBAD ALI,
R/O- VILLAGE SIMULGURI,
P.O- SILLONGONI VIA HAIBARGAON,
DIST- NAGAON, PIN-782002, ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF
SCHOOL EDUCATION
ASSAM SECRETARIAT, DISPUR, GUWAHATI- 781006.
2:THE DIRECTOR OF SECONDARY EDUCATION
DIRECTORATE OF SECONDARY EDUCATION
KAHILIPARA
GUWAHATI- 781019.
3:THE INSPECTOR OF SCHOOLS
NDC
NAGAON
ASSA
Advocate for the Petitioner : MS S SARMA HAZARIKA, MR. J I BORBHUIYA,MR. L
MOHAN,MRS. K H CHOUDHURY
Advocate for the Respondent : SC, SEC. EDU.,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
21.01.2025
Heard Mr.J.I.Borbhuiya, learned counsel for the petitioner. Also heard Mr.
B.Kaushik, learned counsel for the Secondary Education Department.
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2. The petitioner herein prays for setting aside his suspension order dated
27.02.2024 which was effective from 18.01.2024, on the ground that no charge
sheet has been filed in the departmental proceeding initiated against, within 3
months days from the date of effect of the suspension order, besides no review
having taken place within the said period of three months for extension of the
suspension order.
3. The petitioner’s counsel submits that in terms of the Judgement of the
Supreme Court in the case of Ajay Kumar Choudhury -vs- Union of India
& anr. reported in (2015) 7 SCC 291, the currency of a suspension order
should not extend beyond three months, if within this period, the memorandum
of charge/charge sheet is not served on the delinquent officer/ employee.
However, the currency of a suspension order could be extended beyond three
months if a memorandum of charge/charge sheet is issued within three months
of the operation of suspension order, subject to a further condition that a review
for extension of the suspension period is to be made by the State respondents.
4. The petitioner’s case is that the petitioner, who was holding the charge of
Principal of Kaoimari Higher Secondary School, Nagaon, was arrested on
18.01.2024 in connection with ACB PS Case No. 10/2024 under Section 7 (a) of
the Prevention of Corruption Act, 1988. The State respondents issued
suspension order dated 27.02.2024 against the petitioner w.e.f. 18.01.2024. The
petitioner was released on bail on 01.03.2024 and the same was informed to
the authorities. Subsequently, the petitioner submitted a representation dated
02.05.2024, praying for re-instatement of his service and for vacating his
suspension order. The respondent authorities issued the memorandum of
charge/charge sheet against the petitioner in the departmental proceeding that
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had been initiated against the petitioner on 07.05.2024. Thereafter, the
respondent authorities extended suspension period of the petitioner for another
90 days period w.e.f. 27.05.2024, vide order dated 05.06.2024.
5. As stated earlier, the petitioner’s case is that as no review had taken place
within 90 days from the date of coming into effect of the suspension order
dated 27.02.2024, for extension of the suspension period and as no
memorandum of charge/charge sheet had been submitted by the respondents
within the 3 months period, which was to be counted from the date of coming
into effect of the suspension order dated 27.02.2024 which was from
18.01.2024, for extension of the suspension period and as no memorandum of
charge/charge sheet had been submitted by the respondents within the 3
months period, in terms of the suspension order dated 27.02.2024 which was
effective from 18.01.2024, the petitioner’s suspension order had to be set aside
and the petitioner should be reinstated into service.
6. In support of his submissions, learned counsel for the petitioner has relied
upon the judgment of the Supreme Court in Ajay Kumar Choudhury
(supra), besides the judgment of a Division Bench of this Court in the case of
Rakibuddin Ahmed -vs- State of Assam & ors {WP(C) No.3218/2019} and
in the judgment and order passed by a Co-ordinate Bench of this Court in the
case of Nepal Chandra Mandal-vs- State of Assam { WP(C) No.447/2024}.
7. Mr. B. Kaushik, learned counsel for the Secondary Education Department,
on the other hand, submits that in terms of the judgment of another Co-
ordinate Bench of this Court in the case of Rafed Ali Ahmed -vs- State of
Assam & ors {WP(C) No.455/2023}, the suspension period of three months, in
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a case covered under Rule 6(2) of the Assam Services (Disciplinary and Appeal)
Rules, 1964 (for short, the Rules of 1964) pertaining to be a deemed
suspension would have to be reckoned from the date the delinquent
officer/employee brings to the notice of the employer that he/ she has been
released on bail or otherwise not in custody or imprisonment any longer. He
submits that in terms of the Judgment in Rafed Ali Ahmed (supra), the
Supreme Court in the case of Ajay Kumar Choudhury (supra) and the
Division Bench of this Court and in the case of Rakibuddin Ahmed (supra)
did not deal with the question as to how and when the principles laid down in
Ajay Kumar Choudhury (supra) would apply and from the period when the
validity of the suspension period of three months would have to be reckoned
from.
8. The learned counsel for the respondents submits that in view of the
judgment of the Coordinate Bench of this Court in Rafed Ali Ahmed (supra),
the suspension period of the petitioner would have to be reckoned from the
date when a delinquent officer/ employee informs the authorities of his release
from custody i.e. 02.05.2024. As the charge sheet was filed five days later and a
copy given to the petitioner, the principles laid down in the case of Ajay Kumar
Choudhury (supra) would not be applicable to the facts of this case,
inasmuch as, the charge-sheet was submitted within 3 months. As such, the
petitioner has no case for setting aside the suspension order.
9. I have heard the learned counsel for the parties.
10. The question as to whether the principles laid down by the Supreme Court
in the case of Ajay Kumar Choudhury (supra) would apply to case covered
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under the Rule 6 (2) of the 1964 rules was considered by the Division Bench of
this Court in Rakibuddin Ahmed (supra). The Division Bench, on considering
the provision of Rule 6 (2) of 1964 and the 2.1.8 of Manual of Departmental
proceedings under Rule 6(1) of the 1964 Rules, held that though the case of
Ajay Kumar Choudhury (supra) was a case where suspension order was
issued pending drawal of disciplinary proceeding and not a case of deemed
suspension, the principles laid down in Ajay Kumar Choudhury (supra) could
not be restricted to an order of suspension issued only on contemplation of
drawal of disciplinary proceeding and not for deemed suspension. The Division
Bench held that the issue should be seen from the perspective of the
consequence and effect of suspension which is the same in both the cases. It
thus held 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. The relevant Paragraph 15 of the
judgment passed by the Division Bench in the case of Rakibuddin Ahmed
(supra) is 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 162(2) Cr.P.C., 1976 has 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.
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
Page No.# 6/12Department 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. In the case of Nepal Chandra Mandal (supra), the petitioner therein
had been arrested on 12.07.2023 in connection with ACB PS Case No. 51/2023.
The order of suspension was issued on the next date, i.e. 13.07.2023. It was
the case of the petitioner therein that despite more than 90 days having
elapsed, no memorandum of charge had been served within those 90 days and
the review for extension of the suspension period had been made only after the
expiry of 90 days from the date of issuing of the suspension order. The co-
ordinate Bench of this court in Nepal Chandra Mandal (supra) held that as
review for extension of the suspension order having been made beyond the
period of 90 days, the petitioner would have to be re-instated into service, as
the law the laid down by the Supreme court in the case of Ajay Kumar
Choudhury(Supra) and the Division Bench of this court in Rakibuddin
Ahmed (supra) had not been followed. The order of suspension dated
13.07.2023 was accordingly interfered with and the petitioner was re-instated
into service.
12. The co-ordinate Bench of this court in the case of Rafed Ali Ahmed
(supra) has however, taken a different view of the matter on considering the
judgment of the Supreme Court in Ajay Kumar Choudhury (supra) and the
judgment of the Division Bench of this court in the case of Rakibuddin
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Ahmed (supra). It has come to a finding that the two judgments mentioned
above did not deal with the question as to how the principles laid down in the
case of Ajay Kumar Choudhury (supra) would apply and from when the
period of three months would be reckoned. The co-ordinate Bench accordingly
held that three months suspension period provided by the Supreme Court in the
case of Ajay Kumar Choudhury (supra) would have to be reckoned from
the date the respondent authorities have been put to notice that the delinquent
officer/employee has been released from custody, in so far as the case relates to
deemed suspension under Rule 6(2) of 1964 Rules.
13. With due respect to the decision of co-ordinate Bench in the case of
Rafed Ali Ahmed (supra) , this court finds that the date of reckoning of
suspension period in case under 6(2) of 1964 Rules has been answered by the
Division Bench of this Court in para 15 of Rakibuddin Ahmed (supra), which
has been quoted earlier, while considering the application of the Supreme court
case of Ajay Kumar Choudhury (supra) in a case of deemed suspension.
14. Paragraph-21 of the judgment of the Supreme court in the case of Ajay
Kumar Choudhury (supra) directs that the currency of the suspension order
should not extend beyond three months if within the period of memorandum of
charge/charge sheet is not served on the delinquent officer/ employee, if the
memorandum of charge/charge sheet is served, a reasoned order must be
passed for the extension of the suspension. It is thus clear that the currency of
a suspension order cannot extend beyond three months from the date the
suspension order comes into operation, unless charge sheet is filed and a
review of extension of the suspension order is undertaken by the authorities.
15. In the case of Rakibuddin Ahmed (supra) , the Division Bench has
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held that the principles provided by Supreme court in the case of Ajay Kumar
Choudhury (supra) would be applicable to cases where the suspension order
was issued pending drawal of disciplinary proceeding and in the case of deemed
suspension under 6(2) of 1964 Rules.
16. The above judgments of the Supreme Court and the Division Bench
clearly goes to show that a suspension order would be valid for three months
only, unless charge sheet was issued within the period of three months from the
date of coming into operation of the suspension order. When the suspension
order dated 27.02.2024 issued by the State respondents clearly states that it
would come into effect from 18.01.2024, there can be no further interpretation
of the words, to come to a finding that the said suspension order would come
into effect from a date not mentioned in the suspension order. The currency of
any executive order, whether an order of suspension or otherwise, would come
into effect from the date when the author of the said documents says that it
comes into effect.
17. In the case of State of Kerala vs. M.K. Kunhikannam Nambrian
Manjri Manikoth, Naduvil (Dead) & ors. reported in 1996 1 SCC 435 (8),
the Supreme Court has held that all decisions are presumed to be valid until set
aside or otherwise said to be invalid by a court of competent jurisdiction. As
such, an order is deemed to be valid unless it is set aside by the Court or it is
withdrawn or cancelled by the author of the said document.
18. In the case of Bachhittar Singh vs. The State of Punjab, reported in
AIR 1963 SC 395, the Supreme Court held that the order has to be
communicated to the person who would be affected by that order, before the
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State and that person can be bound by that order.
19. Though it can be said that the effect of a suspension order would come
into operation from the date when the recipient of the document is served the
said document, it is not the case of the petitioner that the date of operation of
the suspension order dated 27.02.2024 w.e.f 18.01.2024 was not accepted by
him. The same is also not put to challenge by the petitioner. As such, the State
respondents, on their part, cannot disown the date of coming into effect of their
suspension order, unless the content of the suspension order is modified or
cancelled. All official orders/decisions are presumed to be valid and will come
into operation from the date the authority states it will come into effect, unless
the same is in violation of the law or has been cancelled/ withdrawn/ modified
by the said authority. In the present case, there is no challenge to the contents
of the suspension order or to the interpretation to be given to the words in the
suspension order.
20. On considering a case of deemed suspension under Rule 6(2) of the 1964
Rules, it is clear that a person can be placed under suspension during his
incarceration in judicial custody. This is clear from the fact that being in judicial
custody is a pre-condition for putting a Government servant under suspension
under Rule 6(2) of the 1964 Rules. As such, when a person in judicial custody
can be put under suspension, there is no infirmity in reckoning the date of
suspension of a person, from the date of being in custody, as reflected in the
suspension order. As the Division Bench of this Court has held that the principles
laid down in Ajay Kumar Choudhary (supra) would apply, in a case of
contemplation of drawal of disciplinary proceeding and also in a case of deemed
suspension, a different date of reckoning of the period of suspension is not
contemplated in cases of deemed suspension, as provided in the suspension
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order dated 27.02.2024, which has specifically stated 18.01.2024 is to be the
effective date of the suspension order.
21. In order to further appreciate the issue raised, the provisions of Rule 6 of
the 1964 Rules, is quoted herein below:-
“6. Suspension – (1) The Appointing Authority or any authority to which it is subordinate
or any other authority empowered by the Governor in that behalf may place a Government
servant under suspension-
(a) Whether a disciplinary proceeding against him is contemplated or is pending;
or
(b) Where in the opinion of the authority aforesaid he has engaged himself in
activities prejudicial to the interest of the security of the State; or
(c) Where a case against him in respect of any criminal offence is under
investigation, inquiry or trial:
Provided that where the order of suspension is made by an authority lower than the Appointing
authority such authority shall forthwith report to the Appointing Authority the circumstances in
which the order was made.
(2) A Government servant who is detained in custody, whether on a criminal charge or
otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended
with effect from the date of such detention, by an order of the Appointing Authority and shall
remain under suspension until further orders :
Provided that where the detention is made on account of any charge not connected with this
position as a Government servant or continuance in office is not likely to embarrass the
Government or the Government servant in the discharge of his duties or the charge does not
involve moral turpitude, the Appointing Authority may vacate the suspension order made or
deemed to have been made when he is released on bail or is not otherwise in custody or
imprisonment.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed
upon a Government servant under suspension is set aside in appeal or on review under these
rule and the case is remitted for further inquiry or with any other directions, the order of his
suspension shall be deemed to have continued in force on and from the date of the original
order of dismissal, removal or compulsory retirement and shall remain in force until further
orders.
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(4) Where penalty of dismissal, removal or compulsory retirement from service imposed
upon a Government servant is set aside or declared or rendered void in consequence of or by a
decision of a court of law and the disciplinary authority, on a further inquiry against him on the
allegations on which the penalty of dismissal, removal or compulsory retirement was originally
imposed. The Government shall be deemed to have been placed under suspension by the
Appointing Authority from the date of the original order of dismissal, removal or compulsory
retirement and shall continue to remain under suspension until further orders.
(5) An order of suspension made or deemed to have been made under this rule may at any
time be revoked by the Authority which made or is deemed to have made the order or by any
Authority to which that Authority is subordinate.”
22. Rule 6(2) provides that an order of deemed suspension of an employee
due to detention in custody exceeding a period of 48 hours would remain in
force until further orders. Rule 6(2) of the 1964 Rules states that after an
employee is released on bail or is not otherwise in custody or imprisonment, the
authority may vacate the order of deemed suspension if the circumstances so
justify. Thus, when an employee in a case of deemed suspension, can have his
suspension vacated after being released from custody, the same implies that the
suspension of the employee would have to be reckoned from the date of his
custody.
23. In the case of State of Assam & Another vs. Ajit Sonowal & Others,
WA No.114/2022, the Division Bench of this Court on analysing the decisions of
the Supreme Court in the case of Union of India & Others vs. Dipak Mali ,
reported in (2010) 2 SCC 222 and Ajay Kumar Choudhary (supra) held
that unless a review is held within 90 days, an order of suspension including one
issued due to the detention of an employee in custody for 48 hours, would not
survive.
24. In view of the reasons stated above, this court is of the view, that as the
State Respondents had not submitted the charge sheet within the three months
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(90 days) period, from the date of coming into operation of the suspension
order and the review for extension for suspension of the petitioner had not
been undertaken within the said 90 days, the initial suspension order and the
subsequent extension order/s are hit by the law laid down in Ajay Kumar
Choudhury (supra) and Rakibuddin Ahmed (supra). The initial
suspension order and consequential orders, if any, are accordingly set aside.
25. The petitioner should accordingly be reinstated into service, with liberty
being given to the State respondents to transfer and post the officer to any of
its offices or branches, where the petitioner will not be able to have any
influence over the departmental proceeding that is about to conclude, inasmuch
as, the respondents counsels has submitted that the enquiry report had been
forwarded by the disciplinary authority to the petitioner, to enable him to
submit his representation against the same.
26. The respondents are accordingly directed to re-instate the petitioner
within a period of two weeks from the date of receipt of a certified copy of this
order. The State respondent should also ensure that disciplinary proceeding
comes to a conclusion at the earliest and preferably within a period of one
month from the date of receipt of a certified copy of this court. The petitioner
should also submit his representation to the enquiry report, if any, at the earliest
and within the permitted time frame provided by the State respondents.
27. The writ petition is accordingly allowed.
JUDGE
Comparing Assistant
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