The High Court of Gauhati recently comprising of a bench of Justice Sanjay Kumar Medhi observed that Orders of suspension that are not checked within 90 days and for which no show cause notification has been released are set aside and quashed, the observation that no prejudice, whatsoever would be caused to the Department inasmuch as, no blanket order of revocation of suspension is passed. ( Nipu Kalita v. The State of Assam and 4 Ors & connected matters)
Facts of the Case
The petitioner was working as an Accounts Officer in the office of the Executive Engineer. He was arrested in connection with ACB PS under Section 7(a) of the Prevention of Corruption Act, 1988. Accordingly, he was suspended after he was released on bail from custody. The grievance of the petitioner is that no Departmental Proceeding has been initiated against him and no review of the suspension has been done.
Contention of the Parties
The learned counsel for the petitioners has contended that the issue is no longer res Integra in view of the categorical determination of the issue by a Division Bench of this Hon’ble Court in the case of Rekibuddin Ahmed Vs. The state of Assam, It was contended that the Division Bench was answering a reference on the point – “Whether in a case covered by Rule 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964, the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhury would have automatic application.”
It was contended on behalf of the petitioners that after such determination by a Division Bench, there is hardly any scope for a different interpretation. Therefore, the petitioners contend that the impugned orders of suspension be set aside on the ground of failure to review the same within the specified time.
Learned Standing Counsel on the other hand. had attempted to make an argument that the law laid down by the Division Bench in the case of Rekibuddin Ahmed may not be the correct interpretation, this Court apart from disagreeing with such contention, also left with no scope to take a different view than the Larger Bench.
Courts Observation & Judgment ;
The bench at the very outset noted, “At the stage, noticing that this Court is not inclined to have a view different from the view of the Division Bench in the case of Rekibuddin Ahmed (supra), a frail submission has been made by Shri Nayak to refer the matters before a Larger Bench. Such submission is wholly without any substance and rather, can be termed as outrageous and in gross defiance of judicial decorum inasmuch as, this Court, as a Single Bench, cannot question the findings of a Larger Bench. In fact, the Hon’ble Supreme Court has laid down that even a decision of a Co-ordinate Bench is binding on another Co-ordinate Bench and only if some major difference in opinion occurs, the Court may refer the matter to Hon’ble the Chief Justice to consider whether the issue needs to be placed before a Larger Bench. In fact, the said exercise has already been performed so far as the present issue is concerned as the judgment in Rekibuddin Ahmed (supra) has been rendered in a reference made by a learned Single Judge in view of conflicting views. The matter having finally put to rest by a conclusive decision by the Division Bench in the judgment dated 04.10.2019, coupled with the fact that the said decision was not put to further challenge and has attained finality, the present objection raised by Shri Nayak, learned Standing Counsel is not only legally untenable but also unethical.”
The bench dismissing the petition remarked, “In view of the aforesaid facts and circumstances, this Court has no other option but to follow the decision of the Division Bench in the case of Rekibuddin Ahmed (supra). Accordingly, the orders of suspension which are not reviewed within a period of 90 days and where the show cause notice has not been issued are set aside and quashed. This Court would also like to add the observation that no prejudice, whatsoever would be caused to the Department inasmuch as, no blanket order of revocation of suspension is passed and it is left with the Departments to make periodic review within a period of three months and to decide as to whether such suspension is required to be extended by assigning reasons. Further, in tune with the observation of the Division Bench, this Court is also hasten to add that the respective Departments would be at liberty to transfer the petitioners in any non-sensitive posts. The writ petitions accordingly stand disposed of.”
Read Judgment;
SOURCE ; latestlaws.com/l
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