Bozlul Basit Sarkar v. The State of Assam and 4 Ors

ORDER Date : 17-11-2023

¶1Heard Mr. TH Hazarika, learned counsel for the petitioner, who submits that the petitioner was placed under suspension on 06.03.2023 as he had been arrested on 03.03.2023 in connection with ACB P.S. Case No. 09/2023 under Section 7(a) of the Prevention of Corruption Act, 1988. The petitioner was released on bail on 03.05.2023 vide Bail Application No. 1407/2023 and the show cause notice was issued to the petitioner on 07.07.2023.

¶2The petitioner's counsel submits that in terms of the judgment of the Supreme Court in Ajay Kumar Choudhary vs. Union of India through its Secretary & Anr., reported in (2015) 7 SCC 291 and the Division Bench judgment of this Court in Rokibuddin Ahmed vs. State of Assam, reported 2020 (2) GLR 621, the review for extension of the suspension order made on

06.03.2023, not having been undertaken within 90 days from the date of the suspension order, the suspension order cannot survive and has to be set aside.

¶3Mr. PN Sarma, learned counsel for the Elementary Education Department, Page No.# 3/4 on the other hand submits that in terms of the judgment of this Court in Rafed Ali Ahmed vs. State of Assam & Ors. in WP(C) No. 455/2023, which has dealt with the effect of the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) and the Division Bench judgment of this Court in Rokibuddin Ahmed (supra) coupled with Rule 6(2) of the Assam Services (Disciplinary and Appeal) Rules, 1964, the Government servant would have to be considered to be under suspension during the entire period he is in custody. As such, the time limit given for review of the suspension order for extension of the same pursuant to the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) and the Division Bench judgment of this Court in Rokibuddin Ahmed (supra) would only be applicable from the date the Government servant is released on bail and the same is intimated to the authorities.

¶4In terms of the judgment of this Court in Rafed Ali Ahmed (supra), the period of 90 days given for review of a suspension order in cases involving deemed suspension in terms of Ajay Kumar Choudhary (supra) and Rokibuddin Ahmed (supra) is to be counted from the date the Government servant informs the authorities of his release on bail. In the present case, the authorities were apparently informed of the release of the Government servant on bail on 15.05.2023. Even otherwise, the Government servant/petitioner having been released on bail on 03.05.2023 and the show cause notice initiating the departmental proceeding having been issued on 07.07.2023, i.e., within 90 days from the date of his release on bail, there is no ground for setting aside the suspension order, in terms of the judgment of the Supreme Court in Ajay Kumar Choudhary (supra) and the Division Bench judgment of this Court in Rokibuddin Ahmed (supra). Consequently, the writ petition fails and is Page No.# 4/4 dismissed. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010244092023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/6572/2023o BOZLULoBASIToSARKARo S/O-oMONSURoRAHMANoSARKAR,o R/O-oHALUAPARAoWARDoNO.o8,o LAKHIPUR,oP.S.-oLAKHIPUR,o P.O.-oLAKHIPUR,oDISTRICT-oGOALPARA,o ASSAM,oPIN-o783129. VERSUSo THEoSTATEoOFoASSAMoANDo4oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM,o EDUCATIONo(ELEMENTARY)oDEPARTMENT,o DISPUR,oGUWAHATI-o781006. 2:THEoADDITIONALoSECRETARYoTOoTHEoGOVT.oOFoASSAM oDEPARTMENToOFoSCHOOLoEDUCATION oGUWAHATI-6. 3:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATI-o781019. 4:THEoDEPUTYoCOMMISSIONER oGOALPARA oPIN-o783121. Page No.# 2/4 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER DISTRICT- GOALPARA ASSAM PIN- 782002 Advocate for the Petitioner : MR T H HAZARIKA Advocate for the Respondent : SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA