2019 Supreme(Gau) 901

IN THE HIGH COURT OF GAUHATI
Sanjay Kumar Medhi, J.
Rakibuddin Ahmed – Appellant
Versus
State of Assam – Respondent
Writ Petition (Civil) No. 3218 of 2019
Decided On : 04-10-2019

Headnote:

Assam Services (Discipline and Appeal) Rules, 1964 – Rule 6 – Criminal Procedure Code – Section 162 167 – Reference – Suspension Orders – A learned Single Judge of this Court has made the present reference vide order passed in the instant writ petition – The issue involved is with regard to suspension from service of a Government servant as laid down in the Assam Services (Discipline and Appeal) Rules, 1964 – Since the suspension in the case of Ajay Kumar Choudhury (Supra) was in contemplation of drawal of Departmental Proceeding and not because of arrest and detention for more than 48 hours, the learned Single Judge in the instant case was of the conclusion that the view rendered in the cases of Biswajit Dey (Supra) and Atfur Rahman(Supra) may not be the correct view and therefore, the present reference has been made on the following question: "whether in a case covered by Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, the decision of the Honble Supreme Court in the case of Ajay Kumar Choudhury (Supra) would have automatic application" – The petitioner who is a Forester (i). was arrested on 14.02.2019 and he was suspended from service. The petitioner was ultimately released on bail and the Show-cause Notice containing the charges against him was issued on 16.06.2019 – In the meantime, no order was passed reviewing the requirement of continuing the suspension and the said position exists even till date, which is admitted by both the parties – Held, Court have consciously applied 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 Honble Supreme Court in paragraph-20 whereby, the analogy of Section 162(2) Cr.P.C., 1976 has been brought in, Court is 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 Court view, the issue should be seen from the perspective of the consequence and effect of suspension which is the same in both the cases – Court 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, Court 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 – Since Court have already answered the reference holding that periodic review in the case of deemed suspension is mandatory, the requirement of remanding the matter to the learned Single Judge would be a meaningless exercise and as agreed to by the parties, while answering the reference, as above, Court is of the opinion that a case for interference of the impugned order dated 16.02.2019 is made out – Accordingly, the order of suspension dated 16.02.2019 issued by the Divisional Forest Officer, is hereby set aside and quashed – Court, however, hasten to add that the Department would be at liberty to post the petitioner in any non-sensitive post – Reference Answered