High Court · 2009

The petitioner has been serving as Upper Division Assistant in the Offic 3. e of the District Elementary Education Officer, Sibsagar and he was dealing with the matters connected with transfer and posting of the teachers. While he was s erving so one Smti. Mousumi Gogoi (Handique), Asstt. Teacher, Mohon Barua Primar y School, Amguri Block, Sibsagar made a complaint on 10.1.05 before the Deputy C ommissioner, Sibsagar District against the petitioner that the petitioner demand ed Rs.10,000/- from her. The Deputy Commissioner deputed one Mr A. Bharali, ACS, Executive Magistrate, Sibsagar on 11.1.05 to enquire about the same and after s earching the body of the petitioner, the police party who accompanied the said M agistrate, recovered one envelop containing some cash amounts from his pocket. T he said Magistrate lodged an FIR with the Officer-in-charge, Sibsagar Police Sta tion on the basis of which a police case namely, Sibsagar P.S. Case No. 15/05 un der Section 7 of Prevention of Corruption Act, 1988 was registered. On the basis of this complaint the petitioner was arrested and released on bail later on. Th e petitioner was placed under suspension with immediate effect. The respondent a uthorities issued show cause notice on 7.5.05 (Annexure-8). The petitioner repli ed to the show cause notice vide his letter dated 20.5.05. The respondent author ities did not consider the aforesaid reply to show cause and no order has been p assed as yet. The departmental authorities without replying to the show cause re ply initiated, a departmental proceeding against the petitioner.

4. Mr. Goswami, learned counsel for the petitioner submits that till now no Enquiry Officer and Presenting Officer have been appointed and no information h as been received by the petitioner from the respondent authorities whether the d epartmental proceeding contemplated against the petitioner would continue. At th is stage, Mr. Goswami, learned counsel for the petitioner fairly submits that th e authorities concerned may continue with the departmental proceeding to enquire into the alleged misconduct against the petitioner but he may be reinstated in his post inasmuch as the contemplated departmental proceeding, although claimed to have been initiated is yet to be commenced.

5. Mrs. Barua, learned standing counsel, Education Department has placed be fore this Court a letter bearing No. EHA-158/2008/45 dated 8.12.08 issued by the Director-in-charge, Elementary Education, Assam addressed to the District Eleme ntary Education Officer, Sibsagar, by which the aforesaid District Elementary Ed ucation Officer has been asked to complete the departmental proceeding, if not a lready completed, by appointing an Enquiry Officer and submit the finding of the departmental proceeding to the Office of the Director, Elementary Education, As sam. In the said letter the District Elementary Education Officer was directed t o obtain the present status of the criminal proceeding connected with Sibsagar P .S. Case No. 15/05 (G.R. Case No. 38/2005). The position is made clear in regard to the departmental proceeding in the first paragraph of the aforesaid letter w hich is quoted below: - (cid:28)With reference to the subject cited above, I am to say that Shri Bharat Baruah, UDA, Office of the DEEO, Sibsagar was placed under suspension w.e.f. 13.1.05 fr om your end vide your letter No. EE/EST/SIB/SUS/05/5840 dated 13.1.05. As per av erment of the writ petition the departmental proceeding was initiated against th e petitioner and reply of the show cause has also been submitted by the petition er. But no information/report has yet been received from your end regarding comp letion of the departmental proceeding. (cid:29) Mrs. Barua, learned standing counsel on the basis of the aforesaid instruction m ade a prayer that the matter may be adjourned to enable her to obtain further in structions.

6. Mr. Goswami, learned counsel for the petitioner submits that no charge s heet has been filed against the petitioner in the criminal case referred to earl ier. He also submits that the departmental proceeding has not yet been proceeded inasmuch as no Enquiry Officer and Presenting Officer have been appointed so fa r. In view of the above, according to Mr. Goswami, learned counsel the impugned suspension order should be revoked with a direction to reinstate the petitioner.

7. In support of his submissions, Mr. Goswami places reliance on the decisi ons rendered by this Court in Jinna Abdur Rahim vs. State of Assam reported in 2 002 (3) GLT 497, Apurba Kr. Borthakur vs. State of Assam & ors. reported in 2006 (suppl.) GLT 814. He also places reliance on the decision rendered by the Apex Court in K. Sukhendar Reddy vs. State of Andhra Pradesh reported in (1992) 6SCC 257. In Apurba Kr. Borthakur (supra), this Court has held that the suspension ca nnot be resorted to as a routine measure and the delay of five years in completi ng the enquiry displays lack of concern of the authorities and in such cases the suspension order is liable to be set aside followed by reinstatement of the del inquent officer.

8. The settled position of law is that the suspension from service is a ver y serious matter and it should be for a minimum period because a prolonged suspe nsion without any justifying cause is not only wastage of human resources but al so of material resources of the organization, which has to pay the subsistence a llowance etc. without any return. This has been held so by a Division Bench of t his Court in Md. Sahabuddin vs. State of Assam reported in (1990) 1GLR 276. Taking into consideration the entire facts and circumstances of the case 9. , particularly, the prolonged suspension of the petitioner since 13.1.05 for an indefinite period without any sign of progress in the contemplated departmental proceeding, I do not consider it appropriate to allow the respondent authorities to place the petitioner under suspension for any further period without any ret urn and accordingly the impugned order dated 13.1.05, by which the petitioner wa s placed under suspension, is set aside with a direction to the respondent autho rities to reinstate the petitioner in service, preferably within a period of 14 days from the date on which the petitioner would furnish a certified copy of thi s order to the respondents No.3 and 4. Be it made clear that the respondent auth orities are not debarred from proceeding with and completing the departmental pr oceeding, if they have already started against the petitioner in accordance with law.