Judgment & Order (Cav)

1. Heard Mr. M. K. Das, learned counsel appearing for the writ petitioner. Also heard Mr. D. Borah, learned Government Advocate, Assam appearing for the respondent Nos.5 and 6 and Ms. D. Bora, learned Standing Counsel, Health Department, Government of Assam.

2. The instant writ petition is filed praying for setting aside the impugned order bearing No.ECF No.635784 dated 08.04.2025 issued by the Director of Health Services (FW), Assam in pursuance to the Government letter No.ECF No.629331/264 DATD 07.07.2025, issued by the Additional Secretary to the Government of Assam, Health & Family Welfare Department, whereby the petitioner was placed under suspension from service under Rule 6(1)(a) of the Assam Services (Discipline & Appeal) Rules, 1964.

3. It is the case of the petitioner that the petitioner has been serving as a Head Assistant in the office of the Additional Chief Medical and Health Officer (FW), Sribhumi for last 40 years without any blemish from any corner and he is due to retire from service on 31.12.2026 on superannuation. It is contended by the petitioner that a complaint was lodged on 08.03.2025 by one Mrs. Madhumita Chanda, Field Worker, Urban Unit, Karimganj Civil Hospital alleging sexual harassment at workplace under Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. In view of the aforesaid complaint, an Internal Committee was constituted under the aforesaid Act of 2013 which conducted an enquiry into the allegation and submitted its report on 18.03.2025 concluding that it could not be able to come to a conclusion due to lack of supporting evidence from both the parties. However, the Committee suggested for suspension of the petitioner without assigning any reason though the allegations were alleged to have been not proved. Thereafter, based on the report of Internal Committee, the Director of Health Services (FW), Assam vide order dated 08.04.2025 placed the petitioner under suspension from service by invoking the provision under Rule 6(1)(a) of the Assam Services (Discipline & Appeal) Rules, 1964 with immediate effect. It is contended by the petitioner that after putting the petitioner under suspension, the State respondents have not submitted any memorandum of charges/charge-sheet against him in spite of the lapse of three months period from the date of suspension. It is also contended that the State respondents have not reviewed the aforesaid suspension order for extension.

4. It is the specific case of the petitioner that since no review of the suspension has been carried out by the respondent State together with the fact that no chargesheet/ memorandum of charges has been filed within the period of 90 days, the suspension of the petitioner becomes illegal as in violation of the provisions of the Assam Services (Discipline & Appeal) Rules, 1964 as well as the ratio laid down by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India and another, reported in (2015) 7 SCC 291.

5. An affidavit-in-opposition in the instant case has been filed by the respondent No.4 i.e. the Director of Health Services (FW), Assam wherein the stand of the Department is that a show-cause notice and statement of allegations have already been served on the petitioner, vide letter No.ECF No.635784 dated 11.09.2025. It is further contended that the petitioner has also submitted a written representation on 19.09.2025 requesting examination of enquiry reports, statement of witnesses etc. It is contended by the department that in view of submission of the aforesaid show-cause notice as well as the statement of allegations and since the enquiry has already started, there is no violation of the aforesaid Rules of 1964.

6. The learned counsel appearing for the petitioner submits that since the State respondents have not submitted any memorandum of charges/charge-sheet and review or extension of suspension of the petitioner had not been undertaken within 90 days from the date of suspension, the suspension order is liable to be set aside and quashed in view of the proposition laid down in the case of Ajay Kumar Choudhary (supra). The learned counsel further submits that the respondent authorities in their affidavit-in-reply have not made any statement with regard to the review of suspension and submission of memorandum of charges/charge-sheet of a suspended employee within 90 days, thereby the contention made by the petitioner remained uncontroverted and deem to be admitted. The learned counsel further submits that the show-cause notice and statement of allegation have been served on the petitioner, vide letter No.ECF No.635784 dated 11.09.2025. Therefore, he submits that there is an apparent violation of the ratio laid down in the aforementioned case of Ajay Kumar Choudhary (supra).

7. In addition to the aforesaid submission, the learned counsel appearing for the petitioner also submits that the Internal Committee which had submitted its report before the Additional Chief Medical & Health Officer (FW) on 18.03.2025 stating that the Internal Committee has not been able to come to a conclusion due to lack of supporting evidence from both the parties, which clearly transpires that the allegation levelled against the petitioner was not proved. Therefore, he submits that the Committee has no authority to suggest/request the higher authority for placing the petitioner under suspension. The learned counsel submits that the suspension order dated 08.04.2025 had been issued mechanically and without application of mind by the Director of Health Services (FW), Assam. In view of the aforesaid, the learned counsel submits that the instant case is squarely covered by the ratio laid down by the Hon’ble Apex Court in the case of Ajay Kumar Choudhary (supra) and therefore, prays that the instant writ petition may be allowed by this Court.

8. The learned Government Advocate as well as the learned Standing Counsel appearing for the Health Department, on the other hand, submits that there is no wrong committed in suspension of the petitioner, vide order dated 08.04.2025 issued by the Director of Health Services (FW), Assam. The learned Standing Counsel appearing for the Health Department submits that since the show cause-notice and statement of allegations have already been submitted and the proceeding is ongoing, this Court may not allow this writ petition and, in fact, may be dismissed.

9. At the outset, it would be apposite to make a reference to the impugned order of suspension dated 08.04.2025 which is the subject matter of challenge in this writ petition. For ready reference, the relevant part of the order is extracted herein below :-

                   “Whereas a complaint of Sexual Harassment at workplace has been made against Sahab Uddin Choudhury, Sr. Asstt, Office of the Addl. Chief Medical & Health Officer (FW), Sribhumi and the report of the Internal Complaint Committee, O/o the Addl. Chief Medical & Health Officer (FW), Sribhumi has been received wherein the Committee has suggested the suspension of Sahab Uddin Choudhury, Sr. Asstt, Office of the Addl. Chief Medical & Health Officer (FW), Sribhumi.

                   Whereas the Government of Assam in the Health & Family Welfare Deptt, govt. of Assam has also instituted an inquiry into the complaint of sexual harassment at workplace against Sahab Uddin Choudhury, Sr. Asstt, Office of the Addl. Chief Medical & Health Officer (FW), Sribhumi. Now, in pursuance of the Internal Complaint Committee report and Government instruction issued vide letter No.EFC No.629331/264, Dtd. 07- 04-2025, pending drawal of Departmental Proceedings, Sahab Uddin Choudhury, Sr. Asstt, Office of the Addl. Chief Medical & Health Officer (FW), Sribhumi is placed under suspension from service under Rule 6(1)(a) of the Assam Services (Discipline & Appeal) Rules 1964 with immediate effect.

                   During the period of suspensioin the Head Quarter of Sahab Uddin Choudhury will be at the O/o the Chairman, District Health Society, Sribhumi district.”

10. From the aforesaid impugned order dated 08.04.2025 it is apparently seen that the petitioner, who was working as Senior Assistant, office of the Additional Chief Medical & Health Officer (FW), Sribhumi was suspended on the basis of the suggestion of the Internal Complaint Committee report as well as the Government instruction issued, vide letter No.EFC No.629331/264, Dtd. 07-04-2025 pending drawal of departmental proceeding under Rule 6(1)(a) of the aforesaid Rules of 1964 with immediate effect.

11. This Court has also perused the Office Memorandum No.ABP.13/2018/Pt/35 dated Dispur, the 4th February, 2020 issued by the Department of Personnel, Personnel(B), Government of Assam, wherein in paragraphs 2, 3 and 4, it is stated as follows :

                   “It is therefore directed that all the Senior Most Secretaries of all the Departments shall ensure that the Memorandum of Charges/Charge Sheet is served on the delinquent officer/employee before the expiry of three months of period from the date of issuance of order of suspension. They shall also ensure that the currency of the 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 within 3 (three) months of suspension, a reasoned order must be passed for the extension of the suspension, wherever necessary.

                   The officer proposing for suspension shall also ensure that the charges are framed and submitted to the Disciplinary Authority within two weeks from the date of passing order of suspension.

                   After issuance of Memorandum of Charges/Charge Sheet, the Senior Most Secretaries shall undertake a review within 6 months as regards the desirability to further continue with the suspension order.”

12. It is seen that the aforesaid Office Memorandum dated 04.02.2020 was, in fact, issued by the State Government as per the Hon’ble Gauhati High Court’s order dated 30.11.2017 in WP(C) No.6465/2017 (Dr. Birendra Nath Sarma Vs. The State of Assam and 3 others) as per the law laid down by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra).

13. In the instant case in hand, it is not in dispute that any Memorandum of Charges/Charge Sheet was served on the petitioner within three months of his suspension i.e. 08.04.2025. In fact, in the instant case, the show-cause notice and the statement of allegations were served on the petitioner on 11.09.2025, which clearly makes it beyond the period of three months.

14. Having found the factual matrix as aforesaid, it would be now relevant for this Court to refer to the relevant provision i.e. Rule 6 of the Assam Services (Discipline & Appeal) Rules, 1964, which is quoted hereunder :-

                   “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 in 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 or 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.

                   (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.”

15. The aforesaid Rule clearly mandates that an employee can be put under suspension where a departmental proceeding against him is contemplated or is pending. Though the Rules do not provide any such period of suspension, in the case of Ajay Kumar Choudhary (supra), the Hon’ble Apex Court has discussed in details about the period of suspension. In this connection paragraphs 20, 21 and 22 of the aforesaid decision may be relevant which are extracted herein below :-

                   “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, 1986 (4) SCC 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 pedestal.

                   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/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet 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 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. So far as the facts of the present case are concerned, the Appellant has now been served with a Chargesheet, and, therefore, these directions may not be relevant to him any longer. However, if the Appellant is so advised he may challenge his continued suspension in any manner known to law, and this action of the Respondents will be subject to judicial review.”

16. The ratio as well as the direction in the aforesaid case of Ajay Kumar Choudhary (supra) has been followed in numerous cases by the Hon’ble Apex Court as well as different High Courts. In this connection, a Division Bench of this High Court in the case of State of Nagaland and others Vs. Chubanungsang Imchen and another reported in 2019 (5) GLT 444 has held as under :-

                   “12. A reading of the aforesaid observations goes to show that the observations made therein are on the subject-matter of suspension in general and the same are not restricted to the provisions of CCS(CCA) rules, 1965 in particular. In fact, it is crystal clear from the above extracts including paragraph 21, from Ajay Kumar Choudhary (supra), that an order of suspension should not extend beyond 3 (three) months if within that period of 3 (three) months, the memorandum of charges/chargesheet is not served on the employee under suspension. Further, it is clear from the above judgment that if a memorandum of charges/chargesheet is served, a reasoned order must be passed for extension of the suspension. In laying down the said propositions, the Hon’ble Supreme Court has referred to the provisions of Section 167, Code of Criminal Procedure, 1973 (the Cr.P.C., in short). Thus, it is made clear that an employee’s initial period of suspension can be for a period of 3 (three) months from the date of suspension and if within that period, the memorandum of charges/charge-sheet is not served on the employee, the order of suspension looses its force and in case if within that period of 3 (three) months, the memorandum of charges/charge-sheet has been served and the competent authority is of the opinion that the period of suspension should be continued beyond the period of 3(three) months then also, a reasoned order must be passed for extension of the period of suspension.”

17. A reading of the aforesaid observations goes to show that the observations made therein are on the subject matter of suspension in general and the same are not restricted to the provisions of CCS(CCA) Rules, 1965 in particular. In fact, it is crystal clear from the above extracts including the paragraph 21 from Ajay Kumar Choudhary (supra), that an order of suspension should not extend beyond three months if within that period of three months, the memorandum of charges/chargesheet is not served on the employee under suspension. Further, it is clear from the above judgment that if the memorandum of charges/charge-sheet is served, a reasoned order must be passed for extension of the suspension. In laying down the said proposition, the Hon’ble Supreme Court has referred to the provisions of Section 167, Code of Criminal Procedure, 1973. Thus, it is made clear that an employee’s initial period of suspension can be for a period of three months from the date of suspension and if within that period, the memorandum of charges/charge-sheet is not served on the employee, the order of suspension looses its force and in case, if within the period of three months, the memorandum of charges/charge-sheet has been served and the competent authority is of the opinion that the period of suspension should be continued beyond three months, then also, a reasoned order must be passed for extension of the period of suspension.

18. Taking into consideration the aforesaid ratio laid down by the Hon’ble Apex Court in the case of Ajay Kumar Choudhary (supra) as well as in the case of Chubanungsang Imchen and another (supra), it is seen that in the instant case, the suspension of the petitioner was issued on 08.04.2025 was neither reviewed within the period of three months nor any memorandum of charges/charge-sheet were issued to the petitioner. It is also seen that the Office Memorandum dated 04.02.2020 issued by the Department of Personnel, Personnel (B), Government of Assam, which specifically stipulated that memorandum of charges/charge-sheet is required to be served on the delinquent officer/employee before three months period of issuance of suspension, was also not complied with. It is also seen that there is a specific mention to ensure that currency of suspension order should not extend beyond three months if within this period, the memorandum of charges/charge-sheet is not served on the delinquent employee whereby, meaning that a suspension order which goes beyond three months in absence of service of memorandum of charges/charge-sheet upon the delinquent officer/ employee is in violation of the aforesaid Office Memorandum dated 04.02.2020.

19. Taking into account the whole factual matrix involved in the instant case, it is apparently seen that there is a violation of the principles laid down by the Hon’ble Court in the case of Ajay Kumar Choudhary (supra) as well as the aforesaid Office Memorandum dated 04.02.2020 issued by the Department of Personnel, Personnel(B), Government of Assam in the instant case. Having come to the aforesaid finding, this Court is of the unhesitant opinion that the order of suspension of the petitioner dated 08.04.2025 is liable to be set aside and quashed.

20. In view of the aforesaid, the writ petition succeeds. The impugned order of suspension of the petitioner dated 08.04.2025 is hereby set aside and quashed. The respondents are directed to reinstate the petitioner in service forthwith.

The Writ Petition stands disposed of.

No order as to cost.