Tanyang Gaduk v. The State of Ap and Anr

ORDER Date : 25-07-2024

Heard Mr. Along Tabang, learned counsel for the petitioner. Also heard Mr. Taba Tagum, learned standing counsel, Education Department, appearing on behalf of all the respondents. Page No.# 2/6

¶2The petitioner, by way of instituting the present proceeding, has presented a challenge to an order, dated 22.09.2022, issued by the Commissioner(Education), Government of Arunachal Pradesh, Itanagar, placing the petitioner under deemed suspension with immediate effect.

¶3The petitioner, herein, being implicated in a criminal case, came to be placed under detention w.e.f. 16.09.2022. On receiving the said information; the departmental authorities vide order, dated 22.09.2022, proceeded to place the petitioner under suspension with immediate effect. The order of suspension was followed by issuance of a memorandum, dated 05.12.2022, initiating a disciplinary proceeding against the petitioner in respect of 5(five) Articles of Charge as framed against him, therein. The petitioner vide his written statement, dated 23.02.2023, responded to the said memorandum of charge.

¶4It is to be noted that the petitioner when the said order of suspension was so issued, as well as on the date of the issuance of the memorandum of charge, continued to be under detention in connection with the criminal case as instituted against him. The petitioner on being released on bail, submitted his joining report, dated 09.07.2024, praying before the authorities for permitting him to rejoin his service on the period of his suspension i.e. 90 days having already elapsed.

¶5The petitioner not being permitted to rejoin his service and/or his order of suspension not being revoked, has instituted the present proceeding.

¶6It is an admitted position that the petitioner was placed under suspension in connection with SIC(Vig.) PS Case No. 22/2022 under Sections Page No.# 3/6 406/407/409/120(B)/420 of the Indian Penal Code read with Section 7/8/13(2) of the Prevention of Corruption Act, 1988. The petitioner, was thereafter, enlarged on bail vide order, dated 10.04.2023, passed by the learned trial Court and the said fact was informed to the departmental authorities. It is to be noted that on account of health issues; the petitioner, herein, was granted interim bail on 07.12.2022 which was subsequently made absolute vide order, dated 10.04.2023. It is seen that the respondent authorities had not carried-out any review with regard to the order of suspension as issued in respect of the petitioner, herein, on 22.09.2022. The petitioner having been released on bail vide order, dated 10.04.2023, and the same having brought to the knowledge of the respondent authorities; the period of 90 days mandated for carrying-out the review in his case, has since expired.

¶7Mr. Tagum, learned standing counsel, Education Department, on instruction, has fairly submitted that the respondent authorities have not carried-out any review of the order of suspension as issued in respect of the petitioner within the period mandated.

¶8The Central Civil Services (Classification, Control and Appeal) Rules, 1965, were amended in the year 2022 and the proviso to sub-rule 7 of Rule 10, was substituted as follows:

"Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under detention and in such case the ninety days' period shall be computed from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later:

Provided further that in a case where no charge sheet is issued under these rules, the total period under suspension or deemed suspension, as the case may be, including any extended period in terms of sub-rule (6) shall not exceed,-

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(a) two hundred seventy days from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (a) of sub-rule

(1); or

(b) two years from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (aa) or clause (b) of sub-rule (1) as the case may be; or

(c) two years from the date the Government servant detained in custody is released or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later, in the case of deemed suspension under sub-rule (2)."

¶9On a consideration of the substituted provisions of sub-rule 7 of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, coming into force in terms of the amendment effected in the year 2022; it is seen that the review of suspension in respect of a government servant placed under detention shall not be mandated to be carried out till the date such government servant remains under detention and the period of 90 days as mandated for carrying out the review of the order of suspension in respect of such government servant, would be so computed from the date the government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever, is later.

¶10In the present case; it is seen that the petitioner's release from detention was to the knowledge of the authorities and accordingly, the period of 90 days would commence from the date of grant of bail to the petitioner i.e. w.e.f. 10.04.2023. The period of 90 days mandated for carrying out the review of the order of suspension of the petitioner, herein, would end on 09.07.2023.

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¶11It is seen that the order of suspension as passed in respect of the petitioner, herein, on 22.09.2022, was not reviewed by the departmental authorities within the mandated period of 90 days as prescribed under the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

¶12Accordingly, the order of suspension having lost its validity on completion of a period of 90 days from the date the petitioner was enlarged on bail by the Court of competent jurisdiction; the petitioner cannot be permitted to be continued to be placed under suspension.

¶13In view of the above position; the order of suspension, dated 22.09.2022, as issued in respect of the petitioner, herein, having lost its validity on the same not being reviewed in terms of provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as well as in the light of the decision rendered by the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary v. Union of India through its Secretary & anr. reported in (2015) 7 SCC 291; the said order of suspension, dated 22.09.2022; is hereby set aside.

¶14This Court having interfered with the order of suspension, dated 09.01.2023; the respondent authorities are hereby directed to reinstate the petitioner, herein, in his service against any post of Head Assistant in the Department of Education, Government of Arunachal Pradesh.

¶15However, liberty is granted to the respondent authorities to transfer the petitioner, herein, to any other place, other than the place wherein he was working at the time he was placed under detention and consequently, placed under suspension, Page No.# 6/6 as provided for in paragraph No. 21 of the decision of the Hon'ble Supreme Court in the case of Ajay Kumar Choudhary(supra). For ready reference, the paragraph No. 21 of the judgment in the said case, is extracted 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/charge-sheet 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 person concerned 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 recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the 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."

¶16With the above directions and observations, this writ petition stands disposed of.

JUDGE Comparing Assistant

Page No.# 1/6 GAHC040009142024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/287/2024 Tanyang Gaduk Son of Late Tako Gaduk, Village Gasheng, PO and PS Payum/ Kaying, Siang District, Arunachal Pradesh VERSUS The State of AP and Anr through the Commissioner/ Secretary (Education), Govt of Arunachal Pradesh, Itanagar 2:The Director of Elementary Educaiotn Age: 0 Occupation: Government of Arunachal Pradesh Advocate for the Petitioner : Rage koyu, Along Tabang Advocate for the Respondents : Taba Tagum, S/C Education BEFORE HONBLE MR. JUSTICE N. UNNI KRISHNAN NAIR