ORDER

Date : 07.09.2021 Heard Mr. H. Baruah, learned counsel for the petitioner. Also heard Mr. D. Gogoi, learned standing counsel for the PHE Department.

2. Aggrieved by the continuous suspension of the petitioner w.e.f. 15.11.2019 vide impugned order dated 28.11.2019 (Annexure-E), the petitioner is before the Court by filing this writ petition under Article 2226 of the Constitution of India and he claims the benefit of the ratio laid down in the case of Ajay Kumar Choudhary Vs. Union of India & Ors., (2015) 7 SCC 291, and Rekibuddin Ahmed Vs. State of Assam & Ors., 2019 (5) GLT 600.

3. The respondents have not filed their affidavit-in-opposition. On a pointed query of the Court, the learned standing counsel for the respondents has submitted that as per instruction received by him, the order of suspension has neither been reviewed by the respondent authorities nor charge-sheet has been furnished to the petitioner in connection with any disciplinary enquiry.

4. The learned counsel for the petitioner has submitted that in connection with Hajo P.S. Case No.881/2019, in which the petitioner was arrested on 14.11.2019, charge-sheet had been submitted on 23.12.2019 under section 120 B/188/325/333/353/354 IPC. It is submitted that the allegation against the petitioner is not relating to discharge of his duties and does not involve moral turpitude.

5. In the present case in hand, the suspension of the petitioner was not pending drawal of the disciplinary proceeding. Therefore, the ratio of Ajay Kumar Choudhary (supra) and Rekibuddin Ahmed (supra) would not apply in a strict sense as the said decisions were on the fact that the order of suspension was passed pending drawal of disciplinary proceeding. But in this present case in hand, the suspension was ordered in view of the criminal proceeding initiated against the appellant therein.

6. It would be relevant to quote the provision of Rule 6(1) and 6(2)

of the Assam Services (Discipline and Appeal) Rules, 1964:-

“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) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where is the opinion of the authority aforesaid he has engaged himself in activities prejudicial to the interest or the security of the State; or (c) Where a case against him in respect 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 his 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.”

7. It is noted that the proviso to Sub Rule 2 of Rule 6 of the Assam Services (Discipline and Appeal) Rules, 1964 permits the respondent authorities to 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. Therefore, the Court is of the considered opinion that as the State respondents have the power to review the order of suspension in length of proviso to Sub Rule 2 of Rule 6 of the Assam Services (Dis