Simanta Jyoti Baruah v. The Guwahati Municipal Corporation and Anr

ORDER Date : 24.05.2023 Heard Mr. A.K. Sarma, the learned counsel appearing on behalf of the petitioner. Mr. S. Bora, the learned counsel appears for the respondent No. 1 and Mr. M. D. Borah, the learned counsel appears on behalf of the respondent No. 2.

¶2Taking into account the issue involved in the instant writ petition, the matter is taken up for disposal at the motion stage itself.

¶3The petitioner herein has challenged the order of suspension dated 22/11/2022 as well as also the departmental proceedings initiated on the basis of the memorandum of charge dated 26/12/2022. It is the contention of the petitioner that the order dated 22/11/2022 whereby the petitioner was put under suspension, is contrary to the law laid down by the Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India reported in (2015) 7 SCC 291 and more particularly Paragraph 21 wherein it has been mentioned that even after the memorandum of charge has been served upon the delinquent employee, the disciplinary authority has to pass a reasoned order for extending the suspension period which had not been done in the instant case and as such, the petitioner is entitled to reinstatement.

¶4It is the further submission of the petitioner that the instant disciplinary proceedings should be quashed on the ground that there is a criminal proceedings pending before the Criminal Court.

¶5On the other hand, Mr. S. Bora, the learned counsel appearing on behalf the GMC, submits that in the judgment of the Supreme Court in the case of Ajay Kumar Choudhary (supra), directions were issued to the effect that upon serving the memorandum of charge upon the delinquent employee, a reasoned order has to be passed for extending the suspension period. The learned counsel referred to the Office Page No.# 3/4 Memorandum dated 4/2/2020 issued by the Chief Secretary to the Government of Assam in the Personnel Department wherein it has been mentioned that a review has to be made within a period of six months from the date of submission of the memorandum of charge. The learned counsel appearing on behalf of the respondent No. 1 submits that the memorandum of charge was served upon the petitioner on 26/12/2022 and as on date, the period of six months is not over.

¶6Be that as it may, it is the further submission of the learned counsel appearing on behalf of the respondent No. 1 that in compliance to the Office Memorandum dated 4/2/2020 as well as the judgment of the Supreme Court in the case of Ajay Kumar Choudhary(supra), steps would be taken within 15 days from today, if such steps have not yet been taken. On the submission as regards quashing of the disciplinary proceedings on the basis that a criminal proceedings are presently in process, the learned counsel appearing for the respondent No. 1 submits that the same is contrary to the well settled principles of law inasmuch as a disciplinary proceedings can very well continue side by side with the criminal proceedings and it is only in extreme cases where the criminal proceedings relates to charges of grave nature, the departmental proceedings at best, can be stayed, not quashed.

¶7Upon hearing the learned counsels for the parties and taking into account that the memorandum of charge was issued on 26/12/2022 and the petitioner has also submitted a reply on 13/3/2023 and the disciplinary proceedings is presently going ahead with the criminal proceedings, this Court does not find any justifiable ground for interference with the suspension order. However, it is made clear that it is the mandate of law that there has to be extension of the suspension order by a reasoned order, which as per the Office Memorandum dated 4/2/2020 is to be done within a period of six months. Taking into account that the learned counsel appearing on behalf of the respondent No. 1 submits that the same would be done within a period of 15 days from today, this Court is not inclined to interfere with the order of suspension or the further continuation of the suspension subject to the respondent authorities Page No.# 4/4 passing a reasoned order within 15 days from the date a certified copy of this order is served upon the Commissioner, GMC.

¶8In respect to the question pertaining to the quashing of the disciplinary proceedings on the ground that there is a criminal proceedings initiated, it is no longer res integra that a criminal proceedings as well as the disciplinary proceedings can run side by side and it is only in the case of offences of grave nature, the disciplinary proceedings can be stayed pending disposal of the criminal proceedings. Under such circumstances, the question of interfering with the disciplinary proceedings does not arise in the facts and circumstances of the instant case.

¶9Accordingly, the instant petition stands disposed off in terms with the observations made herein above. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010110512023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/2885/2023o SIMANTAoJYOTIoBARUAHo SONoOFoLATEoHARENDRAoKANTAoBARUAH,o SUPDT.oENGINEERo(U/S),o GUWAHATIoMUNICIPALoCORPORATION,o RESIDENToOFo38oKKoBHATTACHARYAoROAD,o CHENIKUTHI,oGUWAHATI-3,o DIST-oKAMRUP(M),oASSAM. VERSUSo THEoGUWAHATIoMUNICIPALoCORPORATIONoANDoANRo REPRESENTEDoBYoITSoCOMMISSIONER,o BHANGAGARH,oGUWAHATI-o781005. 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEoGOVT.o OFoASSAM o DEPARTMENToOFoHOUSINGoANDoURBANoAFFAIRS o DISPUR oDIST.-oKAMRUP(M) o GUWAHATI o781006o AdvocateoforotheoPetitionerooooo:oMR.oAoKoSARMAo AdvocateoforotheoRespondento:oSC,oGMCoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH