Moon Mazoomder vs The State Of Assam
2025 Latest Caselaw 4694 Gua

Gauhati High Court

Moon Mazoomder vs The State Of Assam on 20 August, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                      Page No.# 1/16

GAHC010173572025




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                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/4734/2025

            MOON MAZOOMDER
            W/O- PRANJAL MAZOOMDER ,
            D/O--PRANJAL CHAKRABORTY,R/O-NETAJI ROAD, MADHAYSRIPURIA
            SRIPURIA TINSUKIA , ASSAM, PIN-786125



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT OF ASSAM,
            DISPUR, GUWAHATI-06

            2:THE COMMISSIONER AND SECRETARY
            TO THE GOVERNMENT OF ASSAM
             PERSONNEL A DEPARTMENT DISPUR GUWAHATI-06

            3:THE SECRETARY TO THE GOVERNMENT OF ASSAM
             PERSONNEL A DEPARTMENT
            DISPUR GUWAHATI-0

Advocate for the Petitioner   : IMSENKALA, MR S DUTTA,MS. B CHOWDHURY,MR A
CHOWDHURY

Advocate for the Respondent : GA, ASSAM,
                                                                        Page No.# 2/16

                                  BEFORE
                   HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
                                  ORDER

20.08.2025 Heard Mr. A Chowdhury, learned Senior Counsel assisted by Ms. B Chowdhury, learned counsel for the petitioner. Also heard Mr. D Nath, learned Senior Government Advocate appearing for the State.

2. The petitioner is aggrieved by the discharge order dated 21.07.2025 whereby the respondents had discharged the petitioner from service with effect from 02.01.2019.

3. The learned Senior counsel for the petitioner submits that the petitioner was initially appointed as a Probationer under the Assam Civil Services pursuant to her selection and appointment undertaken by the APSC of 2016 Batch. Pursuant to an FIR lodged before the Dibrugarh Police Station which came to be registered as Dibrugarh P.S Case No. 936/2016, investigations followed and thereafter the Government came to a conclusion that the petitioner could not be retained in service and thereafter issued the discharge order by order dated 02.01.2019.

4. It is submitted by the learned Senior Counsel for the petitioner that initially the petitioner was placed under suspension and subsequently the petitioner was discharged. Similar actions were taken against several Probationers who were employed across various services of the State including the Assam Civil Service, Assam Police Service, Taxes, Excise etc. These Probationers were discharged from service by separate orders. Being aggrieved, they approached this Court by filing respective writ petitions and a Co-ordinate Bench of this Court by Judgment and Order dated 18.03.2020 dismissed the writ petitions being W.P. (C) No. 4198/2019 and other 48 connected writ petitions. The writ petition filed Page No.# 3/16

by the petitioner also came to be dismissed by the said common Judgment and Order.

5. Being aggrieved, the petitioners filed writ appeals before this Court. The writ appeal filed by the petitioner was numbers as W.A No. 58/2021. Writ appeals were also filed by similar other aggrieved Probationers who were discharged and whose writ petitions came to be dismissed. By a common Judgment and Order dated 20.06.2025, the Division Bench of this Court upon examining the entire matter in great detail allowed the writ appeals in part by interfering with and setting aside the Judgment and Order dated 18.03.2020 passed by the Co-ordinate Bench in W.P.(C) No.4198/2019 and other connected writ petitions.

6. The learned Senior counsel appearing for petitioner strenuously submits before this Court that upon a careful perusal of the Judgment rendered by the Division Bench more particularly the findings and the consequential directions issued, the impugned order of discharge issued by the respondent authorities is in total contravention of the directions of the Division Bench. The learned Senior counsel for the petitioner submits that the Division Bench upon detailed examination of the facts and circumstances and the records placed before the Court came to a finding that the discharge orders were not " discharge simpliciter" rather these were orders which are stigmatic and punitive in nature and therefore have civil consequences on the Probationers. Mr. Chowdhury, learned Senior counsel has drawn the attention of this Court to the various paragraphs rendered in the Division Bench Judgment as to the findings and the conclusions arrived at by the Division Bench to submit that the Court ultimately rendered a finding on the basis of materials available that as these orders were not considered to be "discharge simpliciter" and were found to be stigmatic and Page No.# 4/16

punitive, the Probationers are entitled to be given the benefit of the protection under 311(2) of the Constitution of India. Mr. Chowdhury, learned Senior counsel for the petitioner further submits that while allowing the writ appeals, certain directions were issued by the Division Bench at Paragraph-140 of the Judgment. These directions clearly reveal that the discharge order of the appellants including that of the writ petitioner have been interfered with and set aside.

7. The learned Senior counsel for the petitioner submits that consequently the writ petitioner having completed the period of probation of two years was required to be reinstated in service in terms of the said direction and thereafter the authorities were given liberty to proceed accordingly as per the provision of law. However, these directions were completely overturned by the respondent authority for reasons best known and the impugned discharge order has been issued which has the effect mere replacing the earlier discharge order dated 02.01.2019 which could not have been done in view of the definitive and specific findings of the Division Bench in the Judgment and order dated 20.06.2025 passed in W.A No. 59/2023 and other connected writ appeals. It is submitted that the writ petitioner was never reinstated in service as have been directed by the Division Bench and on the contrary, the impugned discharge order has been passed without issuing any notice to the petitioner giving her an opportunity to rebut the allegations made against her for the discharge in complete violation of the fundamental rules of natural Justice. These actions of the department are colorable and completely contrary to the very directions contained in the Judgment and order.

8. As per instructions, the learned Senior counsel for the petitioner submits that no further appeals have been preferred by the State before the Apex Court Page No.# 5/16

against the Judgment and Order passed by the Division Bench. No Review petition nor any clarificatory applications have also been filed by the State against this Judgment and Order. Therefore, on a plain reading of the Judgment of the Division Bench and the directions contained therein, the impugned discharge order could not have been issued. Mr. Chowdhury, learned Senior counsel therefore submits that since the impugned discharge order has been issued in utter disregard to the direction of the Judgment and Order dated 20.06.2025 rendered by the Division bench, the impugned discharge order should be interfered with, set aside and quashed and the specific directions of the Division Bench passed in the Judgment and Order dated 20.06.2025 should be directed to be strictly adhered to and consequently the petitioner be reinstated in service. He further submits that during the pendency of the writ petition, adequate interim protection be granted.

9. Mr. D Nath, learned Senior Government Advocate on the other hand disputed the arguments made on behalf of the petitioner. It is submitted that the Government has followed the directions laid down by the Division Bench in the Judgment and Order dated 20.06.2025, the same is apparent from the order of discharge which is impugned in the present writ petition. He submits that in view of the specific directions given, the Government has complied with such directions and thereafter, the discharge order has been issued. Therefore there is no infirmity in law nor is the said discharge order contrary to the directions contained.

10. The learned counsel for the parties have been heard. The writ petition more particularly the Judgment rendered by the Division Bench of this Court being W.A No.59/2023 and other Connected writ appeals have been carefully perused.

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11. Upon careful perusal of the Judgment and Order of the Division Bench, it is seen that the Division Bench has elaborately dealt with all these specific allegations and the averments made as well as the legal issues urged. The discussions of the Division Bench as rendered in Paragraph 138 are relevant for this proceeding and they are therefore extracted below:

"138) In light of the discussions above, the Court is inclined to hold as follows:

1. The finding by the learned Single Judge, inter alia, holding the appellants to be involved in securing job by adopting unlawful means in collusion with the then Chairman of APSC, other arrested members of the APSC and officials and agents connected therewith are based on the grounds of arrest and the materials collected against the petitioners, which are contained in the office files covering all the 52 writ petitioners which indicates existence of materials that are the "foundation" for discharging the appellants and those foundational facts have been brought on record by calling for the detailed report from the Dibrugarh Police for taking further action. Under such circumstances, without disputing the stand of the State respondents that the discharge orders, despite referring to "suspension" in some cases and "arrest" and "suspension" in a few cases are not stigmatic, it is open to the Court to lift the veil to find out as to whether the discharge order is a simpliciter discharge or it is punitive and stigmatic. Therefore, the finding of the learned Single Judge that the appellants had secured employment as probationer due to colossal fraud, the discarding of misconduct as a pre-

recruitment phenomenon is found to be contrary to the requirement of Article 311(2) of the Constitution of India and thus, unsustainable.

2. The finding of the learned Single Judge in accepting the statement Page No.# 7/16

made by 23 out of the 52 writ petitioners, purportedly admitting to their complicity in the illegal activity to which they were beneficiaries, had failed to consider two legal issues. First relates to bar under section 25 and 26 of the Evidence Act, 1872 to prove statements made by an accused before the police and second, relates to presumption of guilt of remaining 29 out of 52 writ petitioners, based on inculpatory statements made by co-accused.

3. The learned Single Judge had failed to appreciate that the competent authorities of the State respondents had not passed any order as envisaged under proviso (b) to the second proviso of Article 311(2) of the Constitution of India, which requires that where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry, which vitiates the impugned judgment and order.

4. The learned Single Judge had failed to consider that initially 60 candidates were found to have indulged in colossal fraud to secure appointment through APSC. Out of those 60 candidates, the services of 57 candidates were discharged. However, out of those 60 candidates, 3 candidates had purportedly granted status of approver, their services were not discharged. However, against those 3 candidates, disciplinary proceedings have been drawn up. Such discrimination is not found supported by any law in force or approved by any judicial pronouncement of a Constitutional Court. Therefore, the discriminatory process against the appellants herein, which has not been taken into consideration by the learned Single Judge, is also found to have vitiated the impugned judgment and order.

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5. As the reasons to terminate the appellants, according to the impugned judgment is the participation of the appellants in colossal fraud, the learned Single Judge had failed to take into consideration that the termination of the appellants, though projected to be probationers, in substance represents a penalty imposed on the appellants and/ or punitive action taken against them and such an action has been held by the Supreme Court of India in para-13 of the case of Moti Ram Deka (supra), decided by a Special Bench of 7 Judges to attract Article 311(2) for their termination/ removal. Moreover, it was further held that Article 311 makes no distinction between permanent and temporary post. The same is found to vitiate the impugned judgment.

6. The learned Single Judge had failed to consider the relevant provisions of confirmation of a probationer as laid down in the respective service rules for the appellants because except for the Assam Police Service, all other applicable service rules envisages a probation period of 2 (two) years, extendable as provided therein and therefore, by the time the appellants were discharged from service, they had already completed their normal tenure of probation. Therefore, the appropriate Govt. will have to take a decision in terms of the applicable service rules as to which of the appellants have not completed their probation period.

7. Although in paragraph 42 of the impugned judgment, it has been noted that if the termination from service is sought to be founded or misconduct, negligence, inefficiency or other disqualification then it is a punishment and the requirements of Article 311 must be complied with and further observing that where the form of the order is just a facade of dismissal for misconduct, justice would require the Court, before which the order is put to challenge, to go behind the form to ascertain the few character of the order. However, the learned Single Judge had failed to Page No.# 9/16

appreciate that in these cases, the investigation report of Dibrugarh PS Case No. 936/2016 was a live link to the order of discharge and therefore, the said investigation report was a "motive" and not the "foundation" to discharge the appellants.

8. In para 45 of the impugned judgment, it has been mentioned that in the office files, for all the writ petitioners which were placed before the learned Single Judge, there were chronological record of information of the events which had taken place following information received from the Dibrugarh Police as regards the appellants in connection with Dibrugarh PS Case No. 936/2016 including decision calling for detail reports from the Dibrugarh Police for taking further action, receiving of such reports in connection with arrest of the writ petitioners to the decision to withdraw the services of their service pending action to be taken by the Personnel (A) Department, Govt. of Assam to obtaining reviews of the Judicial Department before taking final decision and to obtaining of approval accorded by the Chief Minister of Assam together with views of the Advocate General, Assam before they were discharged from service by orders of the Governor of Assam, which is a clear indication that those were the "motive" to discharge the appellants and were not the "foundation" to discharge the appellants, as such, the finding at paragraph 48 of the impugned judgment holding that the impugned orders are based on foundational facts emanating from the reports of the Dibrugarh Police is not sustainable. Nonetheless, the procedure adopted by the learned Single Judge to peruse the office files without any disclosure being made to the appellants in course of hearing, thereby not providing the appellants any opportunity to rebut makes the order bad in law as no opportunity of hearing was provided to the appellants.

9. In light of various decisions of the Supreme Court of India, as Page No.# 10/16

discussed hereinbefore, wherein it has been held that the protection of Article 311(2) was available also to a probationer and in light of the fact that nothing was placed on record to show that the authorities had passed any specific order to as required under Clause (b) of second proviso of Article 311(2) of the Constitution of India, the reliance on the decision of the Supreme Court of India in the case of Palak Modi (supra), Parshotam Lal Dhingra (supra) and Samsher Singh (supra) is not sustainable. Article 311 does not create any distinction between a confirmed/ regular member of service and a probationer.

10. The finding at paragraph 49 of the impugned judgment, that the arguments on the effect of the provisions of Article 311 of the Constitution does not require to gone into when the foundational facts as revealed from the police reports were duly taken into consideration is also not sustainable and the case of Inderpreet Singh Kahlon (supra) and Joginder Pal (supra) was wrongly applied."

12. Ultimately, the writ appeals were allowed by setting aside with the impugned order and the appellants were found to be entitled to be relief as held by the Division Bench under Paragraph No. 140 of the said Judgment. The said paragraph is also extracted below:

"140) Accordingly, the appeal is partly allowed by setting aside the impugned judgment and order dated 18.03.2020, passed by the learned Single Judge in W.P.(C) 4198/2019 and 48 connected writ petitions. Resultantly, the appellants are found entitled to the following reliefs:-

1. The discharge orders in respect of all the appellants herein, which have been impugned in the connected writ petitions, viz., W.P.(C) 4198/2019 and 48 connected writ petitions are set aside. However, this relief is subject to the following:

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i. Those appellants, who have completed their initial probation period of 2 (two) years, and by taking into consideration the maximum extendable probation period under their respective service rules, i.e. Rule 22(1) of the Assam Civil Services Rules; Rule 21(1) of the Assam Taxation Service Rules; Rule 21(1) of the Assam Transport Services Rules; and Rule 12 of the Assam Labour Services Rules are liable to be reinstated within a period of 50 (fifty) days from the date of this judgment and order.

ii. For those appellants whose period of probation have not been completed by taking into consideration the initial probation period and the maximum extendable probation period under their respective service rules referred hereinbefore, the competent authorities are directed to pass such appropriate order(s) as may be deemed fit and appropriate, considering the finding rendered in this judgment and order, as well by taking into account all the relevant factors as may be permissible in law. This exercise shall be done by the competent authorities of the respective Departments within a period of 50 (fifty) days from the date of this judgment and order

iii. The notifications dated 30.12.2017 and 20.01.2018, are held to be ex facie illegal and thus void ab-initio and therefore, not enforceable against the concerned appellants so as to alter their position from a confirmed employee of the State to being reverted back to the position of a probationer.

iv. It is clarified that this judgment and order shall not come in the way of the competent authorities in the Govt. to initiate departmental/disciplinary proceedings against the appellants, in such way and manner as they may be so advised. However, the State respondents should make an endeavour to complete the departmental proceeding Page No.# 12/16

within an outer limit of 90 (ninety) days from the date of its initiation.

v. For the period the appellants were not in service, i.e. from the date of discharge till the date of reinstatement, the appellants would not be entitled to any back wages. However, the monetary benefits for the said period shall be calculated notionally for the purpose of pensionary benefits, etc. and for calculating the current pay from the date they are prospectively reinstated in service.

vi. It would be open to the competent authority in the Govt. to keep the appellants without any posting till the departmental/disciplinary proceeding, if any, instituted against them are brought to its logical conclusion and alternatively, it would also be open to the competent authorities to post the appellants at such place from where they will not be able to influence the witnesses in the criminal proceeding already being tried against them.

vii. If there are any appellants whose probation period has not been completed, they would not become entitled to be reinstated in service. However, in respect of those appellants, the competent authorities in the Govt. shall pass appropriate orders to withdraw their respective discharge order already passed and to substitute the said discharge orders with a simpliciter discharge order of not having found them fit for confirmation so that no stigma would be attached against them.

viii. It is made clear that the observation made by the learned Single Judge in the impugned judgment and order as well as by this order shall not prejudice any of the appellants or to the State in any manner whatsoever, including in trial of criminal cases registered against the appellants.

ix. Under such circumstances, the parties are left to bear their own cost.

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x. This judgment and order shall operate prospectively from the date of this order."

13. Having carefully perused the Judgment and Order dated 20.06.2025 of the Division Bench, it is seen that there is a specific finding by the Court on the materials available before the Division Bench that the discharge order which was issued to the appellants including that issue to the present writ petitioner was found to be punitive and stigmatic. As such, the Division Bench did not consider such discharge orders to be "discharge simpliciter". There is a specific finding by the Division Bench that the Co-ordinate Bench in the Judgment under appeal had arrived at a conclusion that the probationers had secured employment due to colossal fraud. The Division Bench found that such conclusion by the Co- ordinate Bench on facts and discarding of misconduct as a pre-recruitment phenomenon is found to be contrary to the requirement of Article 311(2) of the Constitution of India and was therefore held to be unsustainable. The further finding of the Division Bench is that the competent authority of the State never passed any order envisaged under Clause (b) to second proviso to Article 311(2) of the Constitution of India that it was not reasonably practical to hold an enquiry and therefore such actions were also found to be contrary to law. The Division Bench came to a finding that the Co-ordinate Bench had failed to take into consideration that the termination of the appellants, though projected to be probationers, in substance represents a penalty imposed on the appellants and/ or punitive action was taken against them contrary to the law laid down in Moti Ram Deka & Ors. vs. The General Manager, North East Frontier Railway & Ors., reported in 1963 SCC OnLine SC 87: AIR 1964 SC 60 by the Apex Court. The Division Bench concluded that Article 311 of the Constitution of India makes no distinction between a permanent and a temporary post and therefore, the Page No.# 14/16

conclusion of the Co-ordinate Bench was found to be contrary to ratio laid down by the Judgment of the Apex Court. The Division Bench concluded that the materials which were available and relied upon to pass the initial discharge orders were considered to be "motive" to discharge the appellants from service and were not "foundation" for discharge of the appellants. It was held by the Division Bench that the Judgment of the Co-ordinate Bench was found to be based on foundational facts emanating from the report of the Dibrugarh Police and was therefore held to be not sustainable.

14. Ultimately, the Division Bench although partly allowed the writ appeals, however, interfered with the Judgment and Order dated 18.03.2020 passed in W.P.(C) No.4198/2019 and other connected writ petitions. All the discharge orders in respect of all the appellants therein including that of the present petitioner were set aside.

15. The further directions as extracted herein above of the Division Bench reveals that the appellants who had completed their initial Probation period of two years and were taken into consideration the maximum extendable period were liable to be reinstated within a period of 50 days from the date of Judgment and the Order.

16. Coming to the facts in the present proceedings in so far as the present writ petitioner is concerned, she was appointed by order dated 30.09.2016 and it was mentioned therein that the appointment will be with effect from 18.10.2016. The discharge order which was issued earlier which led to the petitioner assailing the same before this Court by filing writ petition, was issued on 02.01.2019 which clearly reveals that she had completed two years of Probation. Under the Assam Civil Service Rules, 1988 the period of Probation as reflected in the Rules is for two years or for such period as extendable by the Page No.# 15/16

authorities concerned. No such orders were passed by the respondent authorities extending the period of probation. If the date of initial appointment was to take effect from 18.10.2016 then her probation period as per the Rules would be completed on 18.10.2018. No extension of probation orders were ever passed by the respondent authorities and it is not disputed, her discharge order came to be issued on 02.01.2019. Therefore, from the facts urged and materials available before this Court, it is clear that the petitioner had successfully completed the period of Probation of two years at the time when she stood discharged by order dated 02.01.2019. Under Such circumstances, it is clear that that the case of the writ petitioner will be covered by the direction of the Division Bench rendered at Paragraph 140(1)(i).

17. From the materials available before this Court, it appears to this Court, prima facie, that this direction of the Court appears to have not been followed by the respondents. The petitioner after her initial discharge order was interfered with, set aside by the Division bench, she was not reinstated in service as directed within the period prescribed under the direction issued under Paragraph 140(1)(i).

18. Accordingly, this Court is of the view that the matter will require consideration. Therefore let Notice be issued, Returnable on 04.09.2025.

19. Since Mr. D Nath, learned Senior Government Advocate has accepted notice on behalf of all the respondents, Notices are waived. However, extra copies be furnished within one week from today.

20. Issue Notice on the interim prayer also, returnable on 04.09.2025.

21. List the matter again on 04.09.2025.

22. Till the next date fixed, the impugned order dated 21.07.2025 shall not be Page No.# 16/16

given effect to.

JUDGE

Comparing Assistant