WP(C)/4518/2008 on 6 June, 2023

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Gauhati High Court

WP(C)/4518/2008 on 6 June, 2023

HON'BLE MR. JUSTICE SOUMITRA SAIKIA Advocate for the petitioner : Mr. R. Mazumdar, Advocate Advocate for the respondents : Ms. A. Gayan, CGC JUDGMENT AND ORDER (CAV) This writ petition is filed by the petitioner assailing the order of dismissal from service pursuant to a Disciplinary Enquiry instituted against him by the respondent authorities. The petitioner who originally hails from Varanasi in the State of UP, joined the CISF as a Constable and was posted in the ONGC Unit, Jorhat in the State of Assam with effect from 01.06.1994. While he was serving in the State Unit, an allegation was raised against him that the petitioner along with another constable namely Santosh Kumar Singh had assaulted/ manhandled and had pushed SI/EXO R.G. Karnan on 17.01.1996 at about 09.30 AM. An enquiry was ordered into by the respondent authority and thereafter, a memorandum of charge was issued to the petitioner on 30.04.1996. A separate disciplinary enquiry was also initiated against the other constable namely, Santosh Kumar Singh. The writ petitioner submitted his reply on 13.06.1996 denying the allegations as reflected in the Page No.# 3/10 memorandum of charges. Thereafter, an Enquiry Officer upon completion of the enquiry submitted its enquiry report on 16.09.1996. A copy of the enquiry report was also served on the petitioner with a direction to submit his reply against the findings arrived at by the Enquiry Officer. The petitioner filed an application before the Commandant, CISF Unit, Jorhat against the findings arrived at by the Enquiry Officer. The disciplinary enquiry namely, the Commandant, CIST Unit, Jorhat vide order dated 30.10.2016 issued the impugned order of dismissal from service.

2. Against the said dismissal order, the petitioner initially approached the High Court of Allahabad by filing a writ petition being W.P(C) No. 10317/1999 vide order dated 15.09.2006. The Allahabad High Court dismissed the writ petition on the ground of lack of territorial jurisdiction. Thereafter, the petitioner approached this Court by filing the instant writ petition. However, during the pendency of the writ petition, he was convicted by a Criminal Court and put behind the bars as a consequence thereof he could not instruct his counsel and the instant writ petition came to be dismissed due to non-prosecution vide order dated 28.11.2013 passed by this Court. After his acquittal, the petitioner took steps for restoration of the writ petition vide order dated 15.11.2021 and Page No.# 4/10 the writ petition was restored.

3. The learned counsels for the parties are at idem that the petitioner in the present proceedings as well as the petitioner in W.P.(C) No. 4517/2008 namely, Santosh Kumar Singh, were the two constables against whom the disciplinary proceedings were initiated for the same incident and they were both dismissed from the services by the Disciplinary Authority pursuant to enquiries held. Both the present petitioner and Santosh Kumar Singh had challenged the orders of the enquiry proceedings as well as the order of their dismissal by two separate writ petitions. Santosh Kumar Singh had filed W.P.(C) No. 4517/2008.

4. It is the submission of the learned counsel for the petitioner that both these writ petitions were initially taken up together, however, due to the dismissal for non-prosecution of the writ petition, it could not be taken up for hearing together with W.P.(C) No. 4517/2008.

5. It is submitted that vide Judgment dated 10.05.2018, this Court in W.P(C) No. 4517/2008 had interfered with and set aside with the findings of the Enquiry Officer and the consequential dismissal order. The Page No.# 5/10 respondent/CISF filed an appeal against this Judgment and Order being W.A. No. 120/2019. This Court by Judgment dated 29.08.2019 dismissed the writ appeal and upheld the order passed by the learned Single Judge.

6. The learned counsels for the parties have fairly submitted that although separate disciplinary proceedings were initiated and the separate findings were arrived at by the Enquiry Officer and thereafter, separate dismissal orders were issued by the respondent authorities, the incident is one and the same in which it was alleged that the present petitioner and another constable namely, Santosh Kumar Singh who was the petitioner in W.P(C) No. 4517/2008 were involved. The same four witnesses were examined, the same documents were relied on. Consequently, this Court in W.P.(C) No. 4517/2008 having set aside and interfered with the findings of the Enquiry Officer and the consequential dismissal order and which has been further upheld in the intra-Court appeal vide Judgment and Order dated 29.08.2019 in W.A No. 120/2019, the present proceedings will also be covered by the Judgment and Order dated 29.08.2019 passed in W.A. No. 120/2019, inasmuch as no further appeal has been preferred by the CISF before the Apex Court as submitted by the learned Central Government Counsel.

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7. In the present proceedings, the article of charges framed against the petitioner is "that No. 912292052 Constable K.D. Choubey of CISF Unit ONGC (DVP) Jorhat who was detailed for duties at GP-87 Camp Cholapather Manhandled SI/Exe. R.G. Karnan, Incharge filed party GP-87 and GP-8 on 17.01.96 at about 09.30 hrs. the act of above constable amounts to gross indiscipline and misconduct being a member of the force, Hence the Charge"

8. The enquiry proceedings initiated against the petitioner in respect of the said charges examined about four witnesses namely, A] Sub-Inspector R.G. Karnan Witness no. 1 B] Head Constable K.P. Tiwari Witness no. 2 C] Constable K. Subralu Witness no. 3 D] Constable A.K. Meena Witness no. 4

9. Both the counsels for the parties have agreed that the same materials were relied upon and the same witnesses adduced evidence in both the enquiries pertaining to the petitioner and the other constable namely, Santosh Kumar Singh. The depositions of the witnesses have Page No.# 7/10 been perused and it is submitted at the bar that since the incident is one and the same, the depositions of the witnesses in both the cases were also of the same nature.

10. Having heard the learned counsels for the parties and upon perusal of the pleadings on record, it is seen that vide Judgment and Order dated 10.05.2018 passed in W.P.(C) No. 4517/2008, a Co-ordinate Bench of this Court had elaborately dealt with the disciplinary proceedings conducted against the constable namely, Santosh Kumar Singh and had returned the findings that the enquiry was vitiated and thereby the same was interfered with and the consequential order of dismissal was also set aside and it was further directed that because of the long sufferings sustained by the litigant namely the petitioner therein-Santosh Kumar Singh, a direction was issued to nominally compensate the petitioner therein in the shape of lumsum backwages of Rs. 2,00,000.00 and the writ petition was allowed in terms of the said directions.

11. The respondent CISF preferred an appeal being W.A. No. 120/2019 and the Division Bench of this Court upheld the Judgment of the Co- ordinate Bench passed in W.P(C) No. 4517/2008. There is no dispute at Page No.# 8/10 the bar that although two separate writ petitions were filed, the departmental enquiry proceeded against the petitioners in both the cases and the consequential order of dismissal from service pertained to the same incident and the same materials were relied upon by the Enquiry Officer and the same witnesses deposed in both the cases.

12. It is also seen that the there is only one charge framed against the petitioner whereas in respect of the petitioner in W.P(C) No. 4517/2008 namely Santosh Kumar Singh, there were two charges framed. The charge No. 1 framed against Santosh Kumar Singh (petitioner in W.P.(C) No. 4517/2008) and the Charge No. 1 framed against the present petitioner are exactly similar. As such, when a Co-ordinate Bench had already rendered a finding in respect of both the charges as well as the enquiry conducted and had interfered with the enquiry officer's findings and the consequential order passed by the disciplinary authority and which Judgment had already been upheld by the Division Bench of this Court, the same is binding on this Court. The conclusions arrived at by the learned Single Judge vide the Judgment dated 10.05.2018 which is upheld by the Judgment dated 29.08.2019 by the Division Bench of this Court are also applicable in the facts and circumstances of the Page No.# 9/10 proceedings arises from the same incident and the materials relied upon and the witnesses who have deposed before the enquiry proceedings are also exactly the same.

13. Upon consideration of the entire matter, this Court is of the view that the conclusions reached by the learned Single Judge vide Judgment dated 10.05.2018 in W.P.(C) No.4517/2008 in respect of the findings of the enquiry conducted against the delinquent employee-Sri Santosh Kumar Singh is acceptable to this Court as the Article of Charge No. 1 is one and the same against the present petitioner as well as the petitioner in W.P.(C) No. 4517/2008 and the materials relied upon and the witnesses who had adduced evidences are also one and the same.

14. I respectfully concur with the conclusions arrived at by the Co- ordinate Bench in W.P(C) No. 4517/2008 and hold that there are no grounds to differ with the conclusions arrived at by the Co-ordinate Bench in the facts and circumstances of the case.

15. In that view of the matter, the findings arrived at by the Enquiry Officer vide the enquiry report dated 16.09.1996 are set aside. The consequential order of the disciplinary authority is also interfered with Page No.# 10/10 and set aside.

16. It is submitted that the petitioner had in the meantime already crossed the age of superannuation and therefore, this Court considers it appropriate to grant similar relief as had been done by the Co-ordinate Bench in W.P(C) No. 4517/2008 and therefore, direct payment of lumsum amount of Rs. 2,00,000.00 as backwages which as it is considered to be as just and proper compensation for the injuries suffered by the petitioner because of the suffering endured by the petitioner.

The writ petition is, accordingly, disposed of in terms of the above.

JUDGE Comparing Assistant

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Gauhati High Court