WP(C)/288/2021 of DIPANKAR KAR Vs STATE OF MEGHALAYA AND 5 ORS. on 10 January 2025

J U D G M E N T

1. The petitioner is an Assistant Teacher in the Government Girl’sHigher Secondary School, Shillong who was placed under suspensionvide Order No.DSEL/SEC-NG/MISC/28/2015/42 dated 15.09.2017issued by the Director of School Education and Literacy Meghalaya,following his arrest made on the basis of an FIR dated 09.09.2017 whichwas lodged at the Laban Police Station, Shillong and later registered asLaban P.S. Case No. 97(9) 2017 under Section 7/8 of the POCSO Act,2012 read with Section 504 IPC.

2. Though the petitioner was later released on bail on 30.10.2017,the said suspension order remained in force without any extension evenafter a lapse of 3 months of the same being issued. It is an admitted factthat after 5 months of the suspension of the petitioner, a DepartmentalEnquiry, dated 02.02.2018 was constituted comprising of two memberswith a direction to the Enquiry Officer to enquire into the circumstancesleading to the suspension of the petitioner and to submit a report thereof.

3. It is the case of the petitioner that till the date of filing of this petition, no show cause notice or article of charges was received fromthe said Enquiry Officer. However, the Disciplinary Authority vide letterdated 02.02.2018 bearing No. DSEL/SEC.G/Misc/18/2017/34 issued aShow Cause Notice to the petitioner under Rule 9 of the MeghalayaServices (Discipline & Appeal) Rules, 1964 as to why the penaltiesprescribed in Clause (i) to (vi) of Rule 7 of the said Rules should not beinflicted upon the petitioner on the charges based on the statement ofallegations made therein.

4. It is also the case of the petitioner that on 04.01.2018 he hadmade a representation before the Director, School Education andLiteracy, Shillong to allow him to resume his services on the ground thatthe initial suspension order dated 15.09.2017 has not been extended inspite of the same having exceeded the mandatory three months’ periodwithout any extension thereof. Finding no response to thisrepresentation, the petitioner has filed two reminders on 21.02.2018 andon 16.03.2018. In response, the relevant authority has allowed thepetitioner to draw subsistence allowance @ 75% with effect from March2018, however no review of the suspension order was made.

5. Another aspect of the matter brought forth by the petitioner isthat no disciplinary proceedings have been drawn or proceeded againsthim by the competent disciplinary authority, nor did the Enquiry Officer conducted any such proceedings. In fact, in course of time, one of theEnquiry Officer, Mr. P. Ryngksai had already retired from service in thebeginning of the year 2021 and hence no effective enquiry wasconducted.

6. In this backdrop, Mr. H.L. Shangreiso, learned Sr. counsel forthe petitioner has submitted that the indefinite suspension of thepetitioner without formal proceedings till date is an act done in violationof the law laid down by the Hon’ble Supreme Court in the case of AjayKumar Choudhary v. Union of India Through Its Secretary & Anr.reported in (2015) 7 SCC 291, particularly at para 1, 2, 3, 4, 5, 6, 7, 8, 9,10, 20 & 21 wherein, the Apex Court has held that a suspension ordershould not exceed three months or 90 days in its applicability, if thememorandum of charges is not served upon the delinquentofficer/employee. The case of Teiborlang Sunn v. State of Meghalayawas also referred to in this regard, wherein this Court vide order dated28.05.2019 passed in WP(C) No. 12 of 2018 dealing with a similarlysituated case as that of the petitioner herein had disposed of the case bydirecting that the prolonged suspension of the petitioner is required to bereviewed in the light of the judgment in the case of Ajay KumarChoudhary (supra).

7. It is also the submission of the learned Sr. counsel that the show cause notice dated 02.02.2018 cannot be considered as a validmemorandum of charges, since by then, a two-member EnquiryCommittee was already constituted by the disciplinary authority andeven then, the said memorandum of charges, if at all, has been framedonly after a lapse of 4(four) months from the date of the suspension ofthe petitioner.

8. Yet again, the learned Sr. counsel has submitted that the OfficeOrder dated 29.08.2022 for extension of the suspension till theconclusion of the criminal proceedings against the petitioner was onlydone so as an afterthought and cannot be sustained in law as was held inthe case of Union of India & Ors. v. Dipak Mali, (2010) 2 SCC 222, para10 & 11.

9. Per contra, Mr. N.D. Chullai, learned AAG while opposing thestance of the petitioner, has, on behalf of the State respondents re-statedthe genesis of the case of the petitioner to say that he was suspendedfrom service while working as a teacher in the Government Girls’ HigherSecondary School, Jail Road, Shillong, wherein on being accused ofhaving committed an offence under Section 7 and 8 of the Protection ofChildren from Sexual Offences (POCSO) Act, 2012 following an FIRlodged by the mother of the minor survivor against whom the saidoffence was committed, he was immediately suspended from performing his teaching duties.

10. In due course, a departmental enquiry was instituted videorder dated 02.02.2018 and the Departmental Enquiry Officer had issueda show cause notice dated 02.02.2018 directing the petitioner to submithis reply to the statement of allegations made against him.

11. Another limb of argument put forth by the learned AAG is thatthe petitioner being involved in a case under the POCSO Act for whichcriminal proceedings against him is also pending before the competentcourt of jurisdiction, the Department in its wisdom has put on hold thedepartmental proceedings against him in order to await the decision ofthe criminal court. However, as vested by power under Rule 6(b) of theMeghalaya Services (Discipline & Appeal) Rules, 2011, the suspensionof the petitioner has been extended until the conclusion of the saidcriminal proceedings.

12. In response to the reliance of the petitioner in the case of AjayKumar Choudhary (supra), the learned AAG has submitted that in thatcase, the Hon’ble Supreme Court has not interfered with the order ofsuspension of the delinquent therein though the charge sheet was filedafter three months from the date of the final order of suspension, whichis a case similarly situated as this instant case.

13. The learned AAG has also relied on the case of P. Kannan v.Commissioner for Municipal Administration & Ors. reported in 2022SCC Online Mad 1154, para 29, 31, 33 & 34 to say that in this case, theFull Bench of the Madras High Court has come to a finding that thejudgment in the case of Ajay Kumar Choudhary (supra) does not laydown an absolute proposition of law that an order of suspension cannotbe continued beyond three months if the memorandum of charges/chargesheet has not been served within such time. In fact, in the MeghalayaServices (Discipline & Appeal) Rules, 2011, for an employee who isdetained in custody, the appointing authority is empowered to place suchemployee under suspension without any time frame prescribed for thesame. Rule 6 (5) (b) of the said Rules of 2011 has clearly prescribed thatthe suspension of a Government servant shall continue until terminationof all or any such proceedings, further submits the learned AAG.

14. In a similar case involving a school teacher, the Hon’bleMadras High Court in the case of K. Ramachandran v. The ChiefEducational Officer & Ors, has vide order dated 24.08.2023 in W.P.(MD)No. 17695 of 2023 refused to revoke the suspension of the petitionertherein who is a school teacher and is involved in a criminal proceedingsnecessitating his suspension, submits the learned AAG.

In a similar case involving a school teacher, the Hon’ble

15. From the submission of the learned counsels for the respective parties, facts and circumstances as noted hereinabove not required to bereiterated unless warranted, what can be understood is that the basicissue to be decided herein is whether the alleged prolonged suspension ofthe petitioner without extension of the same within 90 days of the initialissuance of such order can be sustained in law.

16. It will be useful to look into the process by which thepetitioner was placed under suspension in the first instance. The orderdated 15.09.2017 revealed that he was placed under suspensionfollowing his arrest in connection with Laban Police Station Case No.97(9) 17 under Section 7/8 POCSO Act 12 read with Section 206 IPC.Nothing is said as to the relevant rules under which the petitioner wasplaced under suspension. However, the Office Order dated 29.08.2022by which the petitioner’s suspension was extended has qualified theearlier order dated 15.09.2017 to say that he was placed undersuspension in exercise of the power under Rule 6(b)[sic 6(5)(b)] of theMeghalaya Services (Discipline & Appeal) Rules, 2011.

17. It is a matter of record that since the petitioner was placedunder suspension on 15.09.2017, no formal disciplinary proceedings wasinitiated against him within 90 days of such suspension. It was only on02.02.2018 that an Enquiry Committee, consisting of two members wasconstituted to conduct the departmental enquiry against him.

Simultaneously, on the same date, that is, on 02.02.2018, theDisciplinary Authority had issued a Show Cause Notice to the petitioneralong with the statement of charges calling upon him to response to thesame within 10 days on receipt of such show cause notice. The EnquiryOfficer, namely, Shri P. Ryngksai was also directed to conduct theinquiry and to submit his report on his findings thereof.

18. It is also a matter of record that the petitioner on receipt of thesaid show cause notice had responded to the same vide letter dated08.02.2018 seeking permission to inspect relevant documents. Nothing isbrought on record to show that the enquiry committee had replied tosuch request. This has then led to the petitioner to seek revocation of hissuspension by his communication dated 04.01.2018 and reminders dated21.02.2018 and 16.03.2018 respectively.

19. The relevant authority has failed to response to the prayer ofthe petitioner for revocation of his suspension and instead, after a longperiod of time, on 29.08.2022 had issued the Office Order for extensionof the initial suspension order.

20. It is also the assertion of the petitioner that the EnquiryOfficer, Shri P. Ryngksai has since retired from service in the year 2021.The concerned authority has not taken any steps for reconstitution of a fresh Enquiry Committee and as such, the disciplinary proceedingsagainst the petitioner has been kept in limbo. This has indeed causeprejudice against the petitioner.

21. On perusal of the authority set out in the case of Ajay KumarChoudhary (supra) at para 21 of the same, the Apex Court has held asfollows:

“21. We, therefore, direct that the currency of a suspensionorder should not extend beyond three months if within thisperiod the memorandum of charges/charge-sheet is not servedon the delinquent officer/employee; if the memorandum ofcharges/charge-sheet is served, a reasoned order must bepassed for the extension of the suspension. As in the case inhand, the Government is free to transfer the concerned personto any department in any of its offices within or outside theState so as to sever any local or personal contact that he mayhave and which he may misuse for obstructing theinvestigation against him. The Government may also prohibithim from contacting any person, or handling records anddocuments till the stage of his having to prepare his defence.We think this will adequately safeguard the universallyrecognized principle of human dignity and the right to aspeedy trial and shall also preserve the interest of theGovernment in the prosecution. We recognize that the previousConstitution Benches have been reluctant to quash proceedingson the grounds of delay, and to set time-limits to their duration.However, the imposition of a limit on the period of suspensionhas not been discussed in prior case law, and would not becontrary to the interests of justice. Furthermore, the directionof the Central Vigilance Commission that pending a criminalinvestigation, departmental proceedings are to be held inabeyance stands superseded in view of the stand adopted byus.”

The reliance of the State/respondent on the case of P. Kannan

The reliance of the State/respondent on the case of P. Kannan (supra) to say that the Full Bench of the Madras High Court has held thatthe judgment of the Apex Court in the case of Ajay Kumar Choudhary(supra) does not lay down absolute proposition of law that suspensioncannot be continued beyond the period of three months if thememorandum of charge/charge-sheet has not been served within threemonths, or if the memorandum of charges/charge-sheet is served withoutreasoned order of extension is applicable to the case of the petitionercannot be accepted at face value as the proposition expounded by theApex Court in the case of Ajay Kumar Choudhary (supra) is not anentirely new principle propounded. The Apex Court in the case of DipakMali (supra) while referring to sub-rules (6) & (7) of Rule 10 of theCentral Civil Services (CCA) Rules, 1965 as amended, which rulebriefly stated, stipulates that an order of suspension shall be reviewed bythe authority competent to modify or revoke the same, before the expiryof 90 days from the date of such suspension, otherwise such suspensionbecomes invalid after the period of 90 days, if not extended after review.23.Again, at para 21 of the Ajay Kumar Choudhary case, (supra)the Apex Court has disapproved the stand of the Central VigilanceCommission that pending criminal investigation, departmentalproceedings are to be kept in abeyance as was done in the case of thepetitioner. On this ground alone, the said Office Order dated 29.08.2022

(supra) is liable to be struck down.

24. In a similarly situated case, this Court in the case of Teiborlang Sunn (supra), relying on the authority cited in the case of Ajay Kumar Choudhary, at para 17 of the same has observed as follows:

“17. By the said judgment it is postulated that a suspensionorder should not extend beyond three months subject to otherconditions such as filing of charge sheet etc., and if chargesheet has been filed, a reasoned order must be passed to justifythe extension of suspension. As such, pendency of a criminaltrial will not automatically render a person ineligible toreinstatement in service. With regard to the DepartmentalProceedings, notwithstanding the duration that he has beenkept under suspension, the enquiry as conducted and report assubmitted though not under challenge cannot come within themeaning, or within the four corners of a duly conductedDepartment Proceedings.”

25. Under the facts and circumstances of the case of the petitionerand the contention and submission of the respective parties herein, thisCourt is of the opinion that the principle propounded by the Apex Courtin the case of Ajay Kumar Choudhary (supra) at para 21 in the context ofthe 90 days’ period of suspension of a delinquent employee which oughtto be reviewed, but if not done so, would render the said suspensionorder infructuous is applicable to the case of the petitioner herein.

26. Again, adverting to the peculiar facts and circumstances of the case of the petitioner herein, following the law of precedent, this Court isbound to adhere to the proposition of law as laid down in the case of Ajay Kumar Choudhary (supra), which even otherwise would prevailover the said Rule [6(5)(b)] of the Meghalaya Services (Discipline &Appeal) Rules, 2011.

27. As far as the prayer of the petitioner for payment of thesubsistence allowance, the learned Sr. counsel for the petitioner has notmade any submission in this regard. The State/respondent has howeveradverted in its affidavit-in-opposition that 75% of the subsistenceallowance of the petitioner has been paid and the further claim ofenhance entitlement has also been processed. This Court would allow theprocess to be concluded as far as this issue is concerned.

28. In view of the above, this Court hereby directs the relevantauthority to reconsider the case of the petitioner as to the order of hissuspension and to reinstate him in service, even to the extent of placinghim in any administrative position, if permissible under the rules,pending conclusion of the criminal proceedings against him.

29. Accordingly, this petition is disposed of. No costs.

Judge