Gau HC | Suspension order declared unsustainable due to the absence of  “Memorandum of Charges”

Gauhati High Court: The Bench comprising of Achintya Malla Bujor Barua, J. while pronouncing an order in regard to the issue of suspension order passed against an employee stated the necessity of the memorandum of charge/charge-sheet for initiating a disciplinary proceeding.

The facts of the case state that, the petitioner was an assistant professor and was placed under suspension for the reason as provided in the communication that he was arrested for a case and was in custody for a period of more than 48 hours.

For the above stated premise, the Court had placed a query to the counsel of governing body of the college that “whether any memorandum of charge/charge-sheet had been issued and served on the petitioner as regards any proposed disciplinary action that may be taken” for which the answer was given that no such memorandum of charge/charge-sheet had been issued.

Court stated that a communication rejecting the claim of salary cannot be construed to be a memorandum of charge/charge-sheet. Further Court opined that, the information being provided to a suspended employee for which he is placed under suspension cannot substitute the memorandum of charge/charge-sheet for initiating a disciplinary proceeding.

Reliance by the petitioner’s counsel was placed on the decision of the Supreme Court in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291 in which it was held 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”.

Thus, the High Court in the present case taking into consideration the decision of the Supreme Court as stated above held that as no memorandum of charge/charge-sheet had been submitted since 29-08-2017, the period of 3 months elapsed which makes the order of suspension unsustainable. [Abdul Wahid v. State of Assam, 2018 SCC OnLine Gau 1957, dated 15-12-2018]

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