Decided on July 27,2018

Pranjal Borah Appellant
STATE OF ASSAM Respondents


L.S.JAMIR,J. - (1.) Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. J. Patowary, learned counsel for the petitioner. Also heard Mr. P.N. Goswami, learned Standing Counsel Excise Department for all the respondents.
(2.) Some cases relating to irregularities of excise duty by some Bonded Warehouse at Guwahati were detected and, therefore, the Commissioner of Excise, Assam constituted a Special Investigation Team (SIT) wherein the petitioner who was serving as Deputy Commissioner of Excise, Assam was also a member of the said SIT. Thereafter, the SIT conducted the investigation and detected gross evasion of excise duty by the said Bonded Warehouse and, therefore, it collectively decided to recommend the case to be handed over to the CID or Assam police for necessary action against the licensee under the law. The said report of the SIT was submitted to the Commissioner of Excise, Assam on 19.09.2015. The report of the SIT was accepted by the Government and accordingly the respondent No.3/ the Commissioner of Excise, Assam lodged an FIR with the CID as recommended in the SIT report. Thereafter, CID P.S. Case No. 54/2015 under Section 120 B/468/471/409 IPC read with Section 13 (2) of the Prevention of Corruption Act, 1988 was registered. During the course of investigation by the CID, the petitioner was implicated in the case and, therefore, he was arrested on 05.07.2017. Thereafter, the petitioner was placed under suspension by a notification dated 07.07.2017 issued by the respondent No.2. The petitioner was suspended in pursuance to Rule 6 (1) of the Assam Services (Discipline and Appeal) Rules 1964 (Rules of 1964 in short) with immediate effect pending withdrawal of departmental proceeding against him. By a show cause notice dated 28th, September 2017, the petitioner was directed to show case under Rule 9 of the Rules of 1964 and the charge indicated in the show cause notice reads as under:- " Charge No.1: That while you were holding the post of Deputy Commissioner of Excise Assam your were arrested on 05/07/2017 in connection with CID P.S. Case No. 54/2015 U/S 120 B468/471/409 IPC added Sec. 13(2) of P.C. Act. 1988 and you are in police remand for a period of 10(ten) days w.e.f. 05.07.2017." The petitioner replied to the show cause on 17.11.2017. Thereafter, till date, no further proceeding has taken place with regard to the disciplinary proceeding. Being aggrieved, the petitioner is before this Court challenging the prolonged suspension effected by the notification dated 07.07.2017.
(3.) Mr. K. N. Choudhury, learned Senior Counsel, appearing on behalf of the petitioner at the outset submits that after issuance of the notification dated 07.07.2017 the respondents are yet to re-visit the suspension order for extending the same. It is also submitted that the suspension order has been passed on 07.07.2017 wherein it is indicated that the petitioner was in police remand for a period of 10 days with effect from 05.07.2017. He submits that the notification clearly indicates non-application of mind inasmuch when the petitioner was arrested on 05.07.2017 and his suspension was effected on 07.07.2017, the petitioner could not have been under police remand for 10 days. Learned Senior Counsel for the petitioner has placed reliance in the case of Ajay Kumar Choudhary Vs. Union of India and Anr. reported in (2015) 7 SCC 291 to support his case that the currency of a suspension order should not extend beyond three months if within this period the memorandum of charge/charge-sheet is not served on the delinquent Officer/employee and if the memorandum of charge/charge-sheet is served, a reasoned order must be passed for the extension of the suspension. In the present case he submits that the suspension of the petitioner has been going on without re-visiting the suspension order and without any reasoned orders being passed by the respondents more particularly when the petitioner has been under suspension for more than one year since 07.07.2017. He, therefore, submits that the notification dated 07.07.2017 is not sustainable in law and therefore the suspension order should be quashed and set aside.;

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