Review suspension within 90 days of passing order: Gauhati High Court

STAFF REPORTER

GUWAHATI: The Gauhati High Court set aside the suspension of an engineer posted with the National Highways and Infrastructure Development Corporation Ltd. (NHIDCL), citing the ground that review of the said suspension order was not done within 90 days, the mandatory period as required under the law.

In a recent order, the single judge bench of Justice Sanjay Kumar Medhi stated that it is not disputed that disciplinary proceedings were not initiated by the issuance of any show cause notice before the expiry of the 90-day period from the date of the suspension order.

The issue before the bench was to determine the date when an order of suspension becomes effective.

The facts of the case were that the petitioner was posted with NHIDCL on deputation. It was pursuant to certain allegations in the discharge of his duties that an order dated November 1, 2022, was passed by the respondents, placing the petitioner under suspension. The suspension order was received by the petitioner on November 7, 2022, while the review of the said order of suspension was done on February 3, 2023.

It was contended by the petitioner that as the review was done beyond the prescribed period of 90 days, it would not save the authorities from their responsibility, which is mandatory in nature, and he prayed for the impugned order of suspension to be set aside.

The contention of the respondents, on the other hand, is that though the date of the order of suspension was November 1, 2022, it was communicated only on November 7, 2022. Accordingly, the respondents submitted that if the aforesaid date is reckoned, the review done on February 3, 2023, would be within time, and therefore, there would be no violation of the law laid down.

The petitioner's counsel contended that the suspension comes into effect from the date of the order itself, which is November 1, 2022, and not from the date of receipt of such an order on November 7, 2022. Therefore, the date for the purpose of the mandatory review within 90 days should be reckoned as November 1, 2022.

The court noted that the decision to suspend the petitioner had acquired the form of an order on November 1, 2022, and therefore, it cannot be said that it becomes effective only when the said order of suspension is communicated.

For the purpose of determining the issue, the court relied upon the judgement of the Supreme Court in State of Punjab v. Khemi Ram (1969) 3 SCC 28, wherein it was held that in cases of suspension, it is the date of the orders from which such a suspension would take effect. Moreover, the court placed further reliance upon the judgement of the apex court in Ajay Kumar Choudhary v. Union of India (2015), 7 SCC 291. Observing that it was clearly laid down that review done beyond a period of 90 days would not serve the purpose of law and would have no consequence, the single judge bench said, "In the instant case, it is also admitted that no disciplinary proceeding has been initiated by issuance of any show cause notice prior to the expiry of the said period of 90 days."

Therefore, the bench set aside the impugned suspension order dated November 1, 2022. However, the single judge bench noted that the respondents would be at liberty to post the petitioner in any non-sensitive post, on the ground that the allegations against the petitioner are serious.

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