30th November, 2017
Advocate Prashant Bhushan assisted by Advocate Omanakuttan and Advocate Shakti Vardhan has appeared before the Bench of Chief Justice Dipak Mishra, Justice A. M. Khanwilkar and Justice D. V. Chandrachud on 27.11.2017 for the Respondent Mr. Akhil Gogi, in the matter of Rakesh Kumar Paul Vs. Akhil Gogoi and Ors, SLP (C) No. 31220 of 2015.
In this matter on 21.7.2015 Mr. Akhil Gogoi had filed Writ Petition PIL No. 48 of 2015 praying Writ of Certiorari for quashing the entire selection Process and to initiate fresh selection process. Prayer was also made for CBI enquiry regarding anomalies in CCE 2013 and also into corruption charges against Mr. Rakesh Kumar Paul, former Chairman of Assam Public Service Commission. Gauhati High Court had passed order dated 15.10.2015 to conduct preliminary enquiry by CBI.
On 27.11.2017 the state Government counsel sought two weeks time to file additional documents. After a brief hearing, the court passed order to list the matter in the last week of January 2019 for final disposal. Counsel for the parties are also granted liberty to file additional affidavit.
Brief Summary of the Case
On 3.11.2012 Rakesh Kumar Paul was appointed as and Joined as Regular Chairman of Assam Public Service Commission. He had joined as Member of Assam Public Service Commission on 1.10.2008 and from 4.1.2012 he had been officiating as Chairman of APSC. On 11.08.2013 APSC issued advertisement for Assam Civil Services, APS and allied Services Exam called CCE-2013. Preliminary Exam was held on 29.12.2013 and result declared on 6.2.2014. Main Exam was held in June and July and result was declared on 14.2.2015. Viva held in March 2015 and final result declared on 12.5.2015 and recommendation was forwarded to the State Government.
The State Government, taking note of the letter sent by an identified person
alleging that Mr. R.K Paul is collecting money from candidate for facilitating
selection in the APSC and taking note of the news paper and media reports
ordered preliminary enquiry on 6.6.2015 against the petitioner and it at
preliminary stage. (PG 120 to122). Mr. Rakesh Kumar Paul challenged the same in
Writ Petition being WP (C) No. 6803 of 2015 before the Guwahati High Court, and
notice has been issued but the same was pending in 2015.
On 24.6.2015 one-man committee of Shri Subhash Chandra Das, IAS addl. Chief
Secretary of Govt of Assam was constituted to enquire into the allegations and
submit report. On 10.7.2015 Governor of Assam sent a letter suggesting the scope
of enquiry by one man committee be widened and other organisations and
individuals be taken into account. On 15.07.2015 the committee submitted report.
On 21.07.2015 Mr. Akhil Gogoi has filed WP PIL No. 48/2015 praying Writ of
Certiorari for quashing the entire selection Process and to initiate fresh
selection process. Prayer was also made for CBI enquiry regarding anomalies in
CCE 2013 and also into corruption charges against the petitioner.
On 23.7.2015 a Commission of Enquiry headed by a retired Judge of High Court was
constituted by the state Government.
On 30.7.2015 WP No 48/2015 was listed for hearing and Division Bench of High
Court without issuing notice directed APSC to file affidavit regarding 12
queries raised by the Court in respect of conduct of the examination. Court also
directed Chief Secretary to file affidavit in respect of a letter written by
Mukul Saikia, SP, Law, Vigilance and Anti Corruption to Director General
Vigilance Anti Corruption Assam to confirm whether any such letter is written
and action taken thereon. On 13.8.2015 The State of Assam filed an affidavit
mentioning that the letter based on news items was without support of material
evidence. The said officer came to be transferred.
On 25.8.2015 PIL 48/2015 listed and Mr. P.K. Tiwari, Adv. Was appointed as Amicus Curiae. On 7.9.2015 court directed to repost Mr. Mukul Sakia as SP Law, Vigilance and Anti Corruption and further directed to file affidavit giving details of the alleged disproportionate assets acquired by the petitioner vis-a-vis his known sources of income, which is to his information and knowledge on which he had filed the scrutiny report in December, 2013.
On 6.10.2015 Mr. Mukul Saikia filed affidavit mentioning that he lost links with his sources and forgotten about material gathered then, on his own embarked upon an unauthorized and illegal fresh enquiry into properties owned by the petitioner, his kith & kin and held benami. He gave detail of 7 movable and immoveable properties alleged to be owned by the petitioners and his family members at Guwahati. The material content of affidavit is as follows:
1. The petitioner residing the ground floor of House No. 47, Shangrilla,
Shaktigarh Path, Bhangararh, Guwahati and entire ground floor belongs to him.
2. The petitioner or his family owns property at 1st floor, Opp. Das Services
Station, Kolapahar, Guwahati-18.
3. Rakesh paul in his name or benami purchased commercial property of 3000 sq ft
at labour complex at Dakhingaon, near Krishna Mandir, Guwahati from Builder. His
brother is residing there.
4. Mrs. Sunanda Paul is residing separately with her child in Borbora Niwas,
Srimantapur LP School Road, Bhagangarh, Guwahati owned by Mr. Paul. Further
enquiry required.
5. Mr. Rajiv Kumar Paul (brother) used to reside in rented house and during last
five years he purchased three bedroom flat at Janak Pur, House NO. 19,
Kahilipara, Guwahati and one furnished office measuring 1000 sft at Talukdar
Complex, Mazar Road Bhangagarh. One Chevrolet Car and One Nano car is being used
by him.
6. Above mentioned properties except Sl. 2 are acquired after 2009
Secretary and President of Assam Public Works submitted a memorandum, they
alleged that:
- Sanjay Paul Driver of the commission recently purchased a huge building in lal Ganesh area of Guwahati.
- There is a 1 bigha plot of land at Sonapur owned by official of APSC
- Two flats in New Delhi South Extn and Gurgaon owned by Rakesh Kumar Paul.
Details are available.
i. Smt. Paul is a house wife and uses 2 vehicles one Ford (Eco Sports) and
Chevrolet
ii. Rajiv Kumar Paul constructed new building of 14 X 16 ft for Printing press
in 2009
iii. R K Paul is a registered 2nd class contractor of Public Health Department
and in recent time applied for 1st class contractor
iv. The respondent is a highly influential person and has links at all high
levels
The High Court rejected the said affidavit as vague and bald, but at the same
time, directed him to file better affidavit by 13.10.2015
The council for petitioners produced a document showing that a complaint was
filed by one Kamala Kanta Das to Dy Director General CBI, alleging that a huge
cash in crores is stacked in the residence of Mr. Paul and requested for
immediate action. The CBI forwarded the complaint to the State Govt on 9.3.2015
for proper action stating that they have no jurisdiction to inquire into the
complaint.
Counsel for the Mr. Rakesh Kumar Paul argued that enquiry against Chairman or
Member of Public Service Commission is to be made only upon reference by
President to Supreme Court and that the Supreme Court shall hold enquiry giving
opportunity to the person concerned and submit a report to the President. Based
on the findings on the report, the President would remove the Chairman or
Members of the Commission for misconduct or misbehaviour.
The Counsel for Mr. Ahil Gogoi submitted that enquiry contemplated under Article
317 and 145 of the constitution is totally for a different context with civil
consequences where the member or chairman are sought to be removed. But with
regard to the allegation of corruption or any other criminal offence committed,
there is no legal bar and provisions of Article 317 have no application.
Observation and Direction of Bench of Justice P.K. Saikia and Acting CJ K.
Sreedhar Rao of Gauhati High Court
With regard to the allegations of properties owned by the 6th respondent, it is
submitted that contents of the affidavit filled by the Superintendent of Police,
/vigilance & Anti Corruption, prima facie disclose that whatever explanations
given by the 6th respondent is required to be enquired. Only income tax return
is submitted. Property documents are not furnished.
Advocate General has produced a letter wherein it is stated that the Secretary,
Govt of Assam, Vigilance & Anti Corruption Cell, has directed the ADGP,
Vigilance & Anti Corruption, to initiate preliminary enquiry against the 6th
respondent. The said direction has approval of the Chief Minister of Assam.
Upon thorough consideration of the material, we find at the outset that some
pressure is acting upon the SP, Vigilance. SP filed his affidavit on 6.10.2015
contents of which are very bald and vague. This Court found that the SP is not
coming out with truthful information. Therefore he was directed to file a better
affidavit and he filed an affidavit on 13.10.2015 by giving good number of
details of properties owned by the 6th Respondent in his name and benami. The
explanations given by the 6th respondent does not appear to be satisfactory.
The SP requests that he should be permitted to continue, but he should be posted
elsewhere. The request appears to be a weird one. The conduct of the SP being
half-hearted in his enquiry or in filing affidavit before this Court disclose
that he is acting under Pressure. Therefore we find it not desirable to continue
him to any preliminary enquiry into the mater.
CBI is directed to hold a preliminary enquiry into the allegations of
corruption against the 6th respondent regarding his income and properties owned
by hi, his kith and kin and also by Sanjay Saha. The CBI is directed file report
within six months.
When the CBI embarks upon preliminary enquiry, the 6th respondent should not be arrested but he could be interrogated and no case be registered against him. CBI is directed to file report within six months.
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Read the Order of Supreme Court dated 27.11.2017