L.S. Jamir, J. - 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 under section 120 B468/471/409 IPC added Section 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 v. Union of India and Another 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.

4. Mr. P. N. Goswami, learned Standing Counsel Excise Department on the other hand submits that the suspension notification dated 07.07.2017 was passed in pursuance of Rule 6(1) of the Rules of 1964 which indicates that the competent authority or any authority to which it is sub-ordinate or any other authority empowered by the Governor in that behalf may place a government servant under suspension where a case against him in respect of any criminal offence is under investigation, enquiry or trial. He therefore submits that as the Rules of 1964 was not considered in the case of Ajay Kumar Choudhary (supra) the same is not applicable to the present case in hand. He also submits that the show cause notice was furnished to the petitioner on 20.09.2017 which was well within the 90 days period and therefore, the case of Ajay Kumar Choudhary (supra) is not attracted in the present case.

He has also placed reliance in the case of Punjab National Bank v. D.M. Amarnath reported in (2000) 10 SCC 162 , Director General and Inspector General of Police, Hyderabad v. K. Ratnagiri reported in (1990) 3 SCC 60 and in the case of Sri. D. D. Suri v. A. K. Barren and others reported in (1976) 1 SCC 967. He therefore submits that when the petitioner has been suspended under Rule 6 (1) of the Rules of 1964 and the criminal trial as well as the disciplinary proceeding are going on, the respondents are well within their right to continue the suspension of the petitioner.

5. I have considered the submissions forwarded by learned counsel for the parties as well as perused the records furnished by Mr. P. N. Goswami learned Standing Counsel Excise department.

6. A consideration of the notification dated 07.07.2017 clearly indicates that the petitioner was suspended under Rule 6 (1) of the Rules of 1964 in contemplation of departmental proceeding against him. Show cause to the petitioner was served on 28th, September 2017 with the charge that has already been indicated herein-above. The petitioner has replied to the said show case on 17th November, 2017. From a consideration of the records it is seen that after the reply made by the petitioner on 17.11.2017 no progress has been made in the departmental proceedings till date.

7. On a consideration of the records, it is seen that the petitioner has made a representation before the respondents for revocation of his suspension on 16.10.2017. Thereafter, it is seen that the said representation is pending before the respondents and is yet to be disposed of till date. Records further indicates that the Judicial Department by a note dated 04.05.2018 had opined that the accused person was charged for offence punishable under Section 120B/409 IPC with added section 13 (2) of the Prevention of Corruption Act, 1988 and therefore, as the accused is charged with serious criminal offence and is facing prosecution before the Criminal Court there is no permissible ground for quashing/vacating the suspension order dated 07.07.2017. This would clearly indicate that the continuation of the suspension of the petitioner is on the basis of the note made by the Judicial department and not on a decision of the competent authority after reconsidering the case of the petitioner. It is also to be noted that no reasoned order has been passed by the respondents for extension of the suspension by the respondents till date.

In the case of Ajay Kumar Choudhary (supra) the Honble Supreme Court has held as under:-

"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/employees; 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 contract that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handing records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognised principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognise that the previous Constitution Benches have been reluctant to quash proceedings on the ground 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. The reliance upon the authorities made by the learned Standing Counsel Excise Department has also been considered by this Court. However, in the facts and circumstance of the present case, I am of the considered opinion that they are not applicable to the present case. Considering the ratio laid down by the Honble Supreme Court in the case of Ajay Kumar Choudhary (s) and on consideration of the records produce by the learned Standing Counsel Excise Department, it appears that the respondents has acted in contravention of the ratio laid down by the Honble Supreme Court in the case of Ajay Kumar Choudhary (supra) inasmuch as there is no consideration by the respondents with regard to the further continuation of the suspension of the petitioner. In that view of the matter, the impugned notification dated 07.07.2017 suspending the petitioner is set aside and quashed.

9. Writ petition is allowed.

10. No costs.