Amidst widespread regional resentment against the termination of 60 senior state civil/police officials, the Gauhati High Court recently upheld the orders terminating, without any show cause notice or enquiry, these officers who had been in service for more than 3-4 years.
Justice Manojit Bhuyan of Assam High Court at Gauhati decided 49 writ petitions 'crying foul on their discharge from service during the period of probation' and 'pleading in one voice that the Court should lift the veil to reach and ascertain the intention and reason behind the issuance of the impugned orders'. The state, represented by former ASG Maninder Singh and Supreme Court advocate Nalin Kohli, had been compelled to take this drastic action in the "Assam State Public Commission Scam"- involving allegations that, by giving huge bribes to the tune of Rs. 25 lakhs to Rs.50 lakhs to one Rakesh Paul, the then Chairman of Assam State Public Service Commission, these 60 officers had stood appointed in a completely fraudulent selection process.
The contentions on behalf of the petitioners were basically that the orders of discharge are founded on alleged misconduct which can be traced to the investigation and report of the Police- the very fact that there are allegations of lacking integrity and unfit to be retained in service in the impugned orders, this itself makes the orders stigmatic in nature. Further, there are neither any separate FIRs lodged against the petitioners nor there are irrefutable proof with regard to payment of bribe. And even if any admission of involvement had been made by the petitioners before the police, the same could not have been acted upon, being hit by section 25 and 26 of the Evidence Act. As regards natural justice, it is contended that even if an extreme view is taken that protection under Article 311 is not available, a reasonable opportunity of hearing would always subsist.
In the course of the hearing, the Court perused the original office files containing the notes on arrest and suspension of the petitioners as well as the notes on the decision-making process involving consultations with and approval accorded by high governmental authorities.
It noted that the grounds of arrest and the materials collected against the petitioners are contained in the aforesaid office files, and that the investigations revealed that they had unlawfully secured jobs in collusion with the accused Chairman and other arrested members of APSC. Weight was attached to the fact that during the course of investigations, written answer-scripts of the APSC Combined Competitive Examination were seized from the Commission's Confidential Examination Branch as well as from Paul's house.
Moreover, The handwriting samples of the arrested accused persons as well as that of the petitioners were sent to the Forensic Science Laboratory for examination. It revealed that the answer-scripts were not printed in the Government Press. Also, the signatures of Invigilators in the answer-scripts were found to be fake and mismatched with the Invigilators who were on duty on the respective day of examination in the particular Examination Hall. These fake answer-scripts were written again by the petitioners after completion of the examination and the same were replaced with the original answer-sheets.
"Without entering into any legal argument as to its admissibility, which is for the appropriate fora to decide, the office files also contains statements made by a section of the petitioners before the police admitting to their complicity in the illegal activity to which they were beneficiaries. The statements are basically with regard to their appearance in the APSC Mains Examination and making payment of money ranging between 25 to 40 lakhs to Sri Rakesh Kr. Paul, through his agents, for getting selection by the APSC and for securing job", the HC observed.
"The office files chronologically record the events taking place, following information received from the Dibrugarh Police as regards arrest of the petitioners. From the decision calling for detailed reports from the Dibrugarh Police for taking further action, to receiving such reports in connection with the arrest of the petitioners, to the decisions to withdraw the services of the petitioners pending action to be taken by the Personnel (A) Department, Government of Assam, to obtaining the views of the Judicial Department before taking final decision and to obtaining the approval accorded by the Chief Minister of Assam, together with the views of the Advocate General, Assam, before the petitioners were discharged from service by orders of the Governor of Assam, the same finds recorded in the respective office files", the High Court narrated.
The Court was of the view that the materials collected through the process of a thorough investigation revealed that the petitioners were clearly amongst the identified, segregated beneficiaries of an illegal process, and hence, "This Court would take a position that the decision to discharge them from service is perfectly justified".
The Court could also not accept any contention that as there may be a possibility of acquittal in the criminal case, the decision to discharge them from service at this stage was not warranted- "The petitioners cannot be heard to say that they should be reinstated in service and allowed to continue until decision is rendered by the competent criminal court"
The High Court bench also opined that the audi alteram partem rule is not applicable and the petitioners cannot demand an opportunity of hearing or to claim a right for a post-decisional hearing- "The disturbing disclosures in the investigation reports with regard to prevalence of unfair procedure and tampering of the examination process for the benefit of the petitioners, brings the present cases within the category of exceptions to the rule of audi alteram partem"
Finally, the Court declared that even if an extreme view is taken that the petitioners could make out a case that they have suffered prejudice on being denied opportunity of hearing, the same would have no bearing- "the opportunity of hearing was granted in ample measure by this Court. During the course of hearing on day-to-day basis, covering 18 days, both sides were heard on their contentions and arguments extensively and elaborately, both on facts as well as on law"
The HC concluded "that the concerned State respondent was justified in ordering discharge of the petitioners from service".
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