Judgment & Order (CAV)

1. Heard Mr. J. Patowary, learned counsel for the petitioner. Also heard P. Nayak, learned Additional Advocate General for the State respondents.

2. Challenge made in this writ petition is to the order dated 10.04.2024 issued by the Secretary to the Government of Assam, Finance Department, whereby the petitioner has been placed under suspension w.e.f. 18.03.2024 following his arrest in connection with ACB P.S. Case No. 27/2024, registered under Section 7(a) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the P.C. Act”).

3. The petitioner was appointed as a Finance and Accounts Officer in the year 2004. He is presently serving as Financial Adviser in the Office of the Principal Chief Conservator of Forests & HOFF and is also holding additional charge as Treasury Officer, Kamrup (M).

4. On 18.03.2024, the petitioner was arrested by the Vigilance and Anti- Corruption, Assam, in connection with ACB P.S. Case No. 27/2024, on the allegation that he had demanded and accepted a bribe of Rs. 4,000/- (Rupees Four Thousand) from one Samim Ahmed. Pursuant thereto, the Secretary to the Government of Assam, Finance Department, vide the impugned order dated 10.04.2024, placed the petitioner under suspension w.e.f. the date of his arrest, i.e. 18.03.2024, under Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as the “the Rules, 1964”). The petitioner was granted bail by the Special Judge (PC Act) on 22.04.2024, which was duly communicated to the concerned authority.

5. The disciplinary authority, vide Notification dated 26.04.2024, issued a Show Cause Notice to the petitioner directing him to submit his written statement in defence against the charges levelled therein. The charges pertain to lack of integrity and breach of trust amounting to gross misconduct, based on a report dated 19.03.2024 submitted by the Superintendent of Police, ACB, PS, Directorate of Vigilance and Anti- Corruption. On the same day, an Enquiry Officer and a Presenting Officer were appointed to conduct the departmental proceedings. The petitioner submitted his reply on 27.05.2024, denying the allegations levelled against him and seeking exoneration as well as reinstatement in service.

6. It is the case of the petitioner that, for reasons other than bona fide, he has been kept under suspension till date and the authorities have failed to review and extend his suspension as required under law. Whether the suspension of the petitioner ought to be continued has not been considered by the authorities even after the lapse of more than six months. The law mandates that even if the Memorandum of Charges/Charge-Sheet is issued within three months, the suspension must nonetheless be reviewed and extended, with recorded reasons, within six months. As per the Office Memorandum dated 04.02.2020, upon issuance of the Memorandum of Charges/Charge-Sheet, the senior-most Secretaries are required to undertake a review of the suspension within six months to determine the desirability of its continuation. Therefore, since the authorities failed to review the suspension of the petitioner within the stipulated period of six months, the suspension order has become inoperative.

7. Mr. Patowary, learned counsel for the petitioner, relying on the judgment of the Hon’ble Supreme Court in Ajay Kumar Choudhury vs. Union of India, reported in (2015) 7 SCC 291, submits that the Hon’ble Supreme Court has held that if the Memorandum of Charges/Charge-Sheet is filed within a period of 3 (three) months, then also a reasoned order in writing must be passed for keeping the incumbent under suspension. The authorities having issued the Memorandum of Charges/Charge-Sheet on 26.04.2024, the review ought to have been undertaken within a period of 6 (six) months. However, the respondent authorities, in blatant violation of the law as enunciated by the Hon’ble Supreme Court, are sitting over the matter. Therefore, the petitioner is entitled to be reinstated in service forthwith in the absence of any periodical review as mandated by law. The relevant paragraph of the above judgment is quoted hereinbelow:

                   “…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/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 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.”

8. Mr. Patowary, learned counsel submits that in terms of the Office Memorandum dated 04.02.2020, it is required that after issuance of the Memorandum of Charges/Charge-Sheet, the senior-most Secretaries shall undertake a review within six months regarding the desirability of further continuation of the suspension order and that the senior-most Secretaries will be held responsible if cases of suspension in their respective Departments are not dealt with and reviewed accordingly. Since penal consequences have been prescribed for non-compliance, these provisions are mandatory in nature. In the present case, the Memorandum of Charges/Charge-Sheet was issued to the petitioner on 26.04.2024 and consequently, in terms of the Office Memorandum dated 04.02.2020, the respondent authorities were required to review the suspension order on or before 26.10.2024. Therefore, the impugned suspension order dated 10.04.2024 is liable to be interfered with and the respondent authorities deserve to be directed to reinstate the petitioner in service forthwith.

9. Mr. Patowary, learned counsel, has further relied on the judgment of this Court in Diganta Kalita vs. State of Assam & Ors., reported in 2024 (4) GLT 1007, to submit that if the Memorandum of Charges/Charge-Sheet is issued, a reasoned order must be passed for extension of the suspension. The relevant paragraph of the judgment is reproduced hereinbelow:

                   “…22. The law as laid down by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary(supra), is of 2(two) parts: one, contemplating a situation wherein a departmental proceeding has not been initiated against the delinquent officer/employee within a period of 3(three) months with effect from the date, such employee was placed under suspension. In such a circumstance, the Hon’ble Supreme Court has mandated that the currency of a suspension order shall not extend beyond 3(three) months, if within this period; the memorandum of charges/charge-sheet is not served upon the delinquent officer/employee. The said directions of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary (supra) would not have any application in the present proceeding, inasmuch as, the departmental proceeding was admittedly initiated against the petitioner within a period of 3(three) months from the date, he was so placed under suspension.

                   29. The law as laid down by the Hon’ble Supreme Court would therefore mandate that a suspension order being issued; the currency of the same, would not extend 3(three) months if within this period; the memorandum of charges/ charge-sheet is not served on the delinquent officer/ employee. The second part of the law mandates that if the memorandum of charges/charge-sheet is served; a reasoned order must be passed for the extension of the suspension. The second part of the law declared by the Hon’ble Supreme Court, cannot be read in isolation and has to be read in conjunction with the first part. Accordingly, it is to be understood that a currency of an order of suspension while not being permissible to be extended beyond 3(three) months from the date of its issue, if a memorandum of charges/charge-sheet is not served on the delinquent officer/ employee and if a memorandum of charges/charge-sheet is so issued within the period of 3(three) months; the same must necessarily be accompanied with a reasoned order extending the order of suspension. In other words, either, on the date, a memorandum of charges/charge-sheet is so issued and/or invariably on the date; the same is served on the delinquent concerned; such memorandum of charges/ charge-sheet must necessarily be accompanied with a reasoned order extending the suspension of the delinquent. The effect of non-service of such a reasoned order on the delinquent, when the memorandum of charges/charge-sheet is so served; would be that the order of suspension would cease to operate and the delinquent officer/employee, would be required to be reinstated in his service.”

10. Mr. P. Nayak, learned Additional Advocate General for the respondents, submits that the suspension of the petitioner was considered and reviewed by the Department, whereupon it was decided to continue his suspension vide order dated 06.12.2024, considering the grave nature of the charges levelled against him. A further review of the suspension was again undertaken and extended vide order dated 12.03.2025 and order dated 31.07.2025, and the subsistence allowance was enhanced to 70% with retrospective effect, i.e. with effect from six months after the date of suspension.

11. Mr. Nayak, learned Additional Advocate General, referring to the provisions of Rule 6 of the Rules, 1964, submits that the petitioner was placed under suspension under Sub-Rule (2), which deals with the suspension of a Government Servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours, with effect from the date of detention and shall remain under suspension until further orders. He submits that if the detention arises from a charge not connected with the Government Servant’s official position, or if continuing in office would not embarrass the Government or hinder the Government Servant in performing his duties, or if the charge does not involve moral turpitude, the Appointing Authority may vacate the suspension, which shall be deemed to have ended when the Government Servant is released on bail or is no longer in custody or imprisonment.

12. Mr. Nayak, learned Additional Advocate General submits that the charges and statement of allegations are required to be served within three months from the date of suspension, failing which the Government Servant concerned should be reinstated. In the present case, a Memorandum of Charges was issued on 26.04.2024 and the petitioner was suspended vide order dated 10.04.2024. Therefore, the authorities issued the Memorandum of Charges within three months. The law does not require that the review must be completed within three months after issuance of the Memorandum of Charges, rather, it provides that if the Government Servant is detained in custody, the suspension is deemed to commence from the date of detention and shall continue until further orders.

13. Mr. P. Nayak, learned Additional Advocate General, submits that the Office Memorandum dated 04.02.2020, which has been issued pursuant to the order of this Court in terms of the law laid down in Ajay Kumar Choudhury (supra), only provides that after the issuance of the Memorandum of Charges the senior-most Secretaries shall undertake a review within six months regarding the desirability of further continuation of the suspension order and if the cases of suspension are not dealt with and reviewed accordingly, the senior-most Secretaries will be held responsible, which means that in case of failure on the part of the authorities to review the suspension orders within six months, the Secretaries will be held accountable and action may be initiated against them, which does not entail automatic reinstatement of the Government Servant under suspension if the review is not completed within six months from the date of issuance of the Memorandum of Charges. Therefore, since periodical reviews have been conducted from time to time, no interference is called for in the continued suspension of the petitioner, particularly as the charge against the petitioner is grave in nature.

14. Mr. P. Nayak, learned Additional Advocate General, has placed reliance on the judgment of the High Court of Judicature at Madras dated 15.03.2022 in P. Kanan vs. The Commissioner of Municipal Administration & 2 Ors., W.P. No. 2165 of 2015, to project that the judgment of the Apex Court in Ajay Kumar Choudhury (supra) does not lay down an absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the Memorandum of Charges/Charge-Sheet has not been served within three months, or if the Memorandum of Charges/Charge-Sheet is served without a reasoned order of extension. It is submitted that the issue of challenge to an order of suspension must be analyzed on the facts of each case, considering the gravity of the charges and the Rules applicable. The relevant paragraph of the judgment is reproduced hereinbelow:

                   “34. For the foregoing reasons, the reference is answered by holding that:

                   (i) The judgment of the Apex Court in the case of Ajay Kumar Choudhary, supra, does not lay down absolute proposition of law that an order of suspension cannot be continued beyond the period of three months if the memorandum of charges/charge-sheet has not been served within three months, or if memorandum of charges/charge-sheet is served without reasoned order of extension.

                   (ii) The judgment in R.Balaji, supra, has no reference to the earlier judgments of co-equal strength and is thereby rendered per incuriam.

                   (iii) The issue of challenge to the order of suspension should be analyzed on the facts of each case, considering the gravity of the charges and the rules applicable.

                   (iv) Revocation of suspension with a direction to the employer to post the delinquent in a non-sensitive post cannot be endorsed or directed as a matter of course. It has to be based on the facts of each case and after noticing the reason for the delay in serving the memorandum of charges/charge-sheet.”

15. I have considered the submissions of the learned counsels for the parties and also perused the materials available on record.

16. It is no longer res integra that the currency of a suspension order shall not extend beyond three months from the date of its issuance if, within the said period, the Memorandum of Charges is not served upon the Government Servant. If the Memorandum of Charges/Charge-Sheet is filed within the period of three months, then a review must be undertaken for the extension of the suspension and a reasoned order must be passed for keeping the incumbent under suspension. A duty is cast upon the authorities to review and extend the suspension order with reasoned order within the prescribed period.

17. The petitioner has been placed under suspension vide an order dated 10.04.2024 by the Secretary to the Government of Assam, Finance Department, under the Rules, 1964, after he was arrested on 18.03.2024 in connection with ACB P.S. Case No. 27/2024, under Section 7(a) of the P.C. Act, on charges of demanding and accepting a bribe of Rs. 4,000/- (Rupees Four Thousand) from the complainant. The authorities served the Memorandum of Charges on 26.04.2024 to the petitioner. Therefore, admittedly, the Memorandum of Charges was issued within three months, which is within time. The respondent authorities thereafter reviewed the suspension order only on 06.12.2024, whereby the suspension of the petitioner was extended until further orders. Vide corrigendum dated 11.12.2024, the subsistence allowance of the petitioner was enhanced with effect from 10.07.2024, after a lapse of three months from the date of suspension, in terms of the provisions under the Fundamental Rules. Thereafter, vide orders dated 12.03.2025 and 31.07.2025, the suspension of the petitioner was extended from time to time until further orders.

18. The State of Assam issued an Office Memorandum dated 04.02.2020, pursuant to the order of this Court dated 30.11.2017, wherein, it has been directed to issue a notification indicating the law laid down by Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (supra). The OM is reproduced hereinbelow:

                   “ GOVERNMENT OF ASSAM

                   DEPARTMEN OF PERSONNEL::: PERSONNEL (B) DISPUR:::GUWAHATI

                   Νο.ΑΒΡ.13/2018/Pt/35 Dated Dispur, the 4th February, 2020.

                   OFFICE MEMORANDUM

                   Hon'ble High Court Guwahati in its order dated 30-11-2017 in a series of writ petitions, the lead case being W.P.(C) No.6465/2017 has directed to Issue a notification Indicating the law laid down by the Hon'ble Supreme Court In Ajay Kumar Choudhary-VS-Union of India case to the effect that the Disciplinary Authorities are to strictly comply with the requirement to issue the Memorandum of Charges/Charge Sheet before the expiry of three months from the date of Issuance of Order of suspension.

                   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.

                   Senior Most Secretaries will be held responsible if cases of suspension in their respective Departments are not dealt with and reviewed accordingly.

                   However, for those certain categories of employees for whom Disciplinary Authorities are not the Governor or the Chief Secretary, the concerned Appointing Authority as listed at Schedule in the Assam Services (Discipline and Appeal) Rules, 1964 will be held responsible if cases of suspension under their subordinate offices are not dealt with and reviewed accordingly.

                   All the departments shall submit quarterly return to the Personnel (B) Department with details about the suspension Order issued, Memorandum of Charges /Charge Sheet served upon the delinquent officer/employee and if any extension of suspension period is given etc. The Personnel Department will compile the reports received from all the departments and place before the undersigned for a periodical review every 3 months of the last 3 months suspension orders for further necessary action.

                   Sd/-(Kumar Sanjay Krishna, IAS) Chief Secretary to the Government of Assam.”

19. Reading of the above Office Memorandum clearly shows that the authorities shall ensure that the Memorandum of Charges/Charge-Sheet is served on the Government Servant before the expiry of three months from the date of issuance of the suspension order and shall ensure that the currency of the suspension order does not extend beyond three months if, within this period, the Memorandum of Charges is not served. If the Memorandum of Charges is served or issued within three months of suspension, a reasoned order must be passed for the extension of suspension wherever necessary. It also reflects that after the issuance of the Memorandum of Charges/Charge-Sheet, the senior-most Secretaries shall undertake a review within six months regarding the desirability of further continuation of the suspension order and in the event of default, the senior-most Secretaries will be held responsible. Thus, it is noticed that if the Memorandum of Charges is served within three months of suspension, a reasoned order must be passed for the extension of suspension and the authorities shall undertake a review within six months regarding the desirability of further continuation of the suspension order.

20. In the present case, as noted above, the petitioner was suspended on 10.04.2024, and the Memorandum of Charges was served on 26.04.2024, which is admittedly within three months. However, the first review was made only on 06.12.2024, after a lapse of six months, whereas the requirement is to undertake a review within six months after the issuance of the Memorandum of Charges and that too with a reasoned order. Thus, the respondent authorities have violated their own Office Memorandum dated 04.02.2020, which ought to have been followed in letter and spirit, as the said OM was issued pursuant to the order of this Court in terms of the law laid down by the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (supra).

21. Though Mr. Nayak, learned Additional Advocate General, has attempted to salvage the case of the respondent authorities to project that as per the law it is not required that the review be made within a period of three months or six months and that too with a reasoned order, rather the requirement is only for a review for extension within six (6) months after the issuance of the Memorandum of Charges and in the event it is not done, the responsibility will be fixed on the authorities, which may invite action against the particular Secretaries and would not give rise to any right of the petitioner to claim reinstatement, this Court is not convinced by such submission and projection as such a contention would be clearly in the teeth of the Office Memorandum and the law laid down by the Hon’ble Supreme Court, inasmuch as it requires that if the Memorandum of Charges is issued within three months of suspension, a reasoned order must be passed for the extension of suspension within a period of six months. Therefore, the contention of the learned Additional Advocate General is rejected as being contrary to the provisions of the Rules, the Office Memorandum and the law laid down by the Hon’ble Supreme Court.

22. In view of what has been discussed hereinabove, I am of the considered opinion that the prolonged suspension of the petitioner, after the Memorandum of Charges was served and the review conducted on 06.12.2024, after the expiry of six months, is not sustainable. Consequently, the suspension order and the periodical review orders issued after the expiry of six months are hereby set aside and quashed. The respondent authorities are directed to reinstate the petitioner in service within a period of fifteen (15) days from the date of receipt of the certified copy of this order.

23. Writ petition stands disposed of, in terms above.