Jatindra Prasad Baruah vs The State Of Assam And Othrs
2025 Latest Caselaw 7183 Gua

Gauhati High Court

Jatindra Prasad Baruah vs The State Of Assam And Othrs on 10 September, 2025

Author: Soumitra Saikia

Bench: Soumitra Saikia

                                                                      Page No.# 1/11

GAHC010202972025




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

                                 Case No. : WP(C)/5342/2025

            JATINDRA PRASAD BARUAH
            S/O- DR. HOMESHWAR BARUAH, RESIDENT OF AMOLAPATTY, B.M. ROAD,
            P.O. NAGAON, P.S- SADAR, DISTRICTNAGAON, ASSAM-782001



            VERSUS

            THE STATE OF ASSAM AND OTHRS
            REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE
            GOVERNMENT OF ASSAM, HOME AND POLITICAL DEPARTMENT, DISPUR,
            GUWAHATI-781006

            2:THE COMMISSIONER AND SECRETARY
            TO THE GOVERNMENT OF ASSAM
             HOME (A) AND POLITICAL DEPARTMENT
             DISPUR
             GUWAHATI781006.

            3:THE SECRETARY TO GOVERNMENT OF ASSAM

             TO THE GOVERNMENT OF ASSAM
             HOME (A) AND POLITICAL DEPARTMENT
             DISPUR
             GUWAHATI78100

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

Advocate for the Respondent : GA, ASSAM,
                                                                       Page No.# 2/11




                                  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 29.07.2025 whereby the respondents had discharged the petitioner from service with effect from 27.07.2018.

3. The learned Senior counsel for the petitioner submits that the petitioner was initially appointed as a Probationer under the Assam Police Services pursuant to his selection and appointment undertaken by the APSC of 2015 Batch. He joined in service on 15.09.2015 and under the Rules, he completed his period of probation for two years on 15.09.2017. Thereafter, the State discharged the petitioner on 27.07.2018. The writ petitioner along with other similarly situated persons approached this Court by filing writ petition which came to be dismissed and subsequently intra Court appeals were filed. The petitioner before this Court had also filed an appeal before this Court being W.A. No. 147/2020. These bunch of writ appeals were disposed of by a common Judgment and order rendered by a Division bench of this Court by Judgment and Order dated 20.06.2025 where the following directions were issued:

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

Page No.# 3/11

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 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 Page No.# 4/11

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.

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 Page No.# 5/11

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 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 Page No.# 6/11

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 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 Page No.# 7/11

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."

139) At this stage, it may be mentioned that the case of Pradip Kumar Banerjee (supra), was cited by the learned senior counsel for the State respondents to highlight that to what extent interference in intra-court appeal is permissible. We are in respectful agreement with the observations made by the Supreme Court of India in the said case. However, in this case, the judgment of the learned Single Judge is found to be vitiated on several counts discussed hereinbefore and thus, this is not a case of mere substitution of the opinion of the Division Bench over the discretion exercised by the learned Single Judge and thus, the said case would have not application in this case.

"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:

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 Page No.# 8/11

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 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 Page No.# 9/11

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.

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

4. The learned senior counsel submits that in terms of the findings arrived at by the Division Bench, the petitioner has been treated as a confirmed employee Page No.# 10/11

and the extension of the probation period issued by a Notification dated 20.01.2018 held to be null and void and therefore for all practical purposes the petitioner has been held to be a regular employee and not on probation. Under such circumstances, the State in total contravention of the directions contained in paragraphs No. 138 to 140 of the Judgment came be issue the impugned order dated 29.07.2025 whereby the petitioner's was again discharged with effect from 27.07.2018 by considering the petitioner to be a probationer contrary to the specific findings arrived at by the Division Bench. Being aggrieved the present writ petition has been filed.

5. Mr. D Nath, learned Senior government advocate appears for the State submits that the directions contained in the Judgment and Order dated 20.06.2025 has been complied with by the State and in terms of the specific directions, the impugned order was issued and therefore there is no infirmity in the discharge order dated 29.07.2025 and therefore no interference at this stage is called for.

6. Having heard the learned counsel for the parties and upon consideration of the issues raised in the petition and since several other writ petitions in the meantime being filed and notices have been issued, let notice be issued in the matter making it returnable on 29.10.2025.

7. Since Mr. D Nath, learned Sr. Government Advocate appears on behalf of all the respondents, Notices are waived. However, extra copies be furnished within one week from today.

8. Issue notice on the stay prayer also, returnable on the same date.

9. Matter be listed again on 29.10.2025

10. Meanwhile, till the next returnable date, the impugned notification dated Page No.# 11/11

29.07.2025 shall not be given effect to as also all consequential actions thereto.

JUDGE

Sandipon)

Comparing Assistant