Page No.# 1/7 GAHC010075442025 2025:GAU-AS:5147 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2043/2025 JAMIL AHMED BARBHUIYA S/O TAFAZZUL ISLAM BARBHUIYA, VILL- BORBOND PART-II, P.O.- BALILURA, P.S. AND DIST- HAILAKANDI, ASSAM VERSUS THE STATE OF ASSAM AND 4 ORS. TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT, DISPUR, GUWAHATI-6 2:THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM FINANCE DEPARTMENT DISPUR GUWAHATI-6 3:THE DIRECTOR OF ELEMENTARY EDUCATION DEPARTMENT ASSAM KAHILIPARA GUWAHATI-19 4:THE DISTRICT ELEMENTARY EDUCATION OFFICER HAILAKANDI P.O.- HAILAKANDI DIST- HAILAKANDI ASSAM 5:THE BLOCK ELEMENTARY EDUCATION OFFICER LALA HAILAKAND Advocate for the Petitioner : MR. A M BARBHUIYA, S. M. ZINNA,MS A BEGUM Advocate for the Respondent : SC, ELEM. EDU, SC, FINANCE Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 28.04.2025 Heard Mr. A.M. Barbhuiya, learned counsel for the petitioner; Mr. B. Kaushik, learned standing counsel for the Elementary Education Department; and Mr. R. Barpujari, learned standing counsel for the Finance Department. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has put to challenge the suspension order dated 23.10.2024, w.e.f. 07.10.2024, passed by the Director of Elementary Education, Assam, whereby the petitioner herein was suspended from his service 3. The case of the petitioner is that he was serving as regular Headmaster of Rahmania M.E. School, Hailakandi and in connection with Hailakandi P.S. Case No. 210/2024, under Sections 420/406/409/34 of the IPC, corresponding to G.R. case No. 671/2024, he was placed under suspension on 23.10.2024, w.e.f. 07.10.2024, by the Director of Elementary Education, Assam. 3.1. The said case was registered on the basis of a complaint lodged by the Ex. President of the School Management Committee of the said school. Thereafter, this court, vide order dated 21.10.2024, in Bail Application No. 3191/2024, granted bail to the petitioner. But, as he was behind the bar for more than 48 hours, he was suspended from his service on 23.10.2024, w.e.f. 07.10.2024. 3.2. After being released from the jail hazot, he submitted one representation on 10.02.2025, before the Director of Elementary Education, Assam, praying for his reinstatement to the service. But, the same failed to Page No.# 3/7 evoke any response. Besides, neither the memorandum of article of charge/charge sheet has been served upon him within three months from the date of his suspension nor the period of suspension was reviewed and extended within three months of initial suspension order dated 23.10.2024. Being aggrieved, the petitioner has approached this court by filing the present writ petition. 4. Mr. Barbhuiya, learned counsel for the petitioner submits that the petitioner was placed under suspension w.e.f. 07.10.2024, vide order dated 23.10.2024 and since then, his suspension order was not reviewed till date and no memorandum of article of charge/charge sheet has been served upon him within 90 days from the date of his suspension. Mr. Barbhuiya further submits that in view of the decision of Hon’ble Supreme Court in the case of Ajay Kumar Choudhury vs. Union of India through its Secretary and Another, reported in (2015) 7 SCC 291, the order of suspension has to be reviewed within 90 days from the date of suspension and in the event of memorandum of article of charge/charge sheet was filed, reasoned order has to be passed for extension of suspension period. Mr. Barbhuiya also submits that since the mandate of the decision in Ajay Kumar Choudhury (Supra), has not been complied with in the present case, the impugned order of suspension, dated 23.10.2024, is illegal and arbitrary. Therefore, it is contended to set it aside and the respondent authorities may be directed to reinstate him in the post in which he was serving before he was placed under suspension with immediate effect. 5. On the other hand, Mr. Kaushik, learned standing counsel appearing for the Elementary Education Department has not controverted the submission of Mr. Barbhuiya and the proposition of law laid down in the case of Ajay Kumar Page No.# 4/7 Choudhury (Supra). But, Mr. Kaushik submits that the period of 90 days has to be counted from the date on which the petitioner was released from jail and that the impugned suspension order suffers from no illegality or infirmity requiring any interference of this court. Mr. Kaushik, however, submits that if this court decides to quash the suspension order, then the respondent authorities may be allowed to continue with the disciplinary proceeding, which has been drawn up against the petitioner. 6. Having heard the submissions of learned counsel for both the petitioners, I have carefully gone through the petition as well as the documents placed on record and also perused the decision of Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (Supra). 7. It is to be noted here that the law regarding review of suspension order and extension of the period of suspension, is dealt with by Hon’ble Supreme Court in the case of Ajay Kumar Choudhury (Supra), is extracted herein below :- "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 Page No.# 5/7 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 recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize 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." 8. In the instant case, admittedly, the petitioner was arrested on 07.10.2024, and he was placed under suspension vide order dated 23.10.2024, w.e.f. 07.10.2024. And the petitioner was granted bail by this court on 21.10.2024. After the grant of bail, the petitioner submitted one representation on 10.02.2025, before the Director of Elementary Education, Assam, praying for his reinstatement in service. But, the same fails to evoke any response from the Director of Elementary Education Department. 9. It is also to be noted here that since the petitioner was suspended w.e.f. 07.10.2024 and the period of 90 days, if counted from that date, would come to end on 06.01.2025. And even if we counted the period of 90 days from the date of issuance of suspension order, i.e. 23.10.2024, then, also the period of 90 days elapsed on 22.01.2025. But, admittedly, within the aforementioned Page No.# 6/7 period charge memo/charge sheet was not furnished and suspension order has not been reviewed by the respondent authorities. Though the petitioner had filed the representation on 10.02.2025, the same fails to evoke any response. 10. It is also to be noted here that show cause notice with memorandum of article of charges has been served upon the petitioner on 24.04.2025, that too after the elapse of 90 days from the date of issuance of suspension order, i.e. 23.10.2024. 11. Mr. Barbhuiya, learned counsel for the petitioner, referring to one Office Memorandum issued by the State, vide O.M. No. ABP.284/79/1., dated 05.09.1979, especially the paragraph No. 2.1.8. of Chapter – II of the Assam Services (Discipline & Appeal) Rules, 1964, submits that the mandate of the said notification also not been followed by the respondent authorities. 11.1. It is to be noted here that in the said Notification it is provided that ‘charges and the statement of allegations should be served within three months from the date of suspension failing which the Government Servant concerned should be reinstated’. 12. Thus, having tested the impugned suspension order dated 23.10.2024, in the light of the proposition of law laid down in the case of Ajay Kumar Choudhury (Supra) and also in view of the Notification dated 05.09.1979, this court is of the considered opinion that the same fails to withstand the legal scrutiny. Under such circumstances, the impugned suspension order is set aside and quashed. Consequently, the petitioner shall be reinstated in service forthwith. 13. However, it is made clear that the respondent authorities shall be at liberty to take the disciplinary proceeding, which was initiated against the Page No.# 7/7 petitioner, to its logical conclusion, that too as soon as practicable. 14. In terms of above, this writ petition stands disposed of. The parties have to bear their own costs. JUDGE Comparing Assistant