Disposed

Ajay Prakash Tiwari v. Union of India and Ors.

Gauhati HC4 Aug 2022WP(C)/1110/2013

Case brief

AI extract

What is this about?

The Gauhati High Court held the petitioner's case covered by a 2018 judgment and a 2021 order regarding punishment quantum. The court directed the disciplinary authority to revisit the penalty, setting aside the impugned order to that extent and disposing of the writ petition.

What did the court decide?

Directed respondents to revisit quantum of punishment; impugned order dated 12.09.2009 set aside to the extent of penalty imposed.

Ajay Prakash Tiwari Vs Union of India and Ors. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/4

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GAHC010129102013

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

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Case No. : WP(C)/1110/2013

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AJAY PRAKASH TIWARI

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CT/GD NO. 05401336, AT PRESENT WORKING AT 7BN. SSB, KALPIPARA, P.O. DARGAH SARIF, DIST. BAHRAICH U.P. SON OF SHRI JHULAN TIWARI R/O 7/B, JAWAHARLAL NEHRU SARANI, P.O. KONNAGAR, P.S. UTTARPARA, DIST. HOOGLY W.B..

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VERSUS

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UNION OF INDIA and ORS.

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REP.BY THE SECRETARY, GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI.

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2:DY. INSPECTOR GENERAL

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SHQ SSB TEZPUR.

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3:COMMANDANT 33BN. RANGIYA DIST. KAMRUP ASSAM

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Advocate for the Petitioner : MS.T DAS

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Advocate for the Respondent : MR. D C BORAHR-1 to 3

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Page No.# 2/4

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 04.08.2022

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Heard Mr. A. K. Roy, learned counsel for the petitioner as well as Mr. S. K. Medhi, learned counsel for the all the respondents.

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The petitioner is a Constable (GD) under the 33 Battalion of the SSB. He challenges the Order dated 12.09.2009, whereby the penalty of stoppage of increment was inflicted on the Constable in pursuant to a disciplinary proceeding.

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The petitioner’s counsel submits that the present case is covered by the Judgment and Order dated 21.03.2018 passed in WP (C) No. 4510/2011, WP (C) No. 707/2012, WP (C) No. 993/2012, WP (C) No. 6311/2011, WP (C) No. 5949/2011, WP (C) 6005/2011, WP (C) 4324/2012 and WP (C) No. 3338/2012. He accordingly submits that the present writ petition should be disposed of in line with the Judgement and Order dated 21.03.2018 passed in WP (C) No. 4510/2011 etc.

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Mr. S. K. Medhi, learned CGC submits that the present case is a covered case and the same can be disposed of in line with the Judgment and Order dated 21.03.2018 passed in WP (C) No. 4510/2011 and others.

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Disciplinary Proceedings had been initiated against the petitioner and a group of other Jawans, in relation to one Inspector Shri H. P. Upreti being abducted by some villagers. In their attempt to release the said Inspector, the Jawans had resorted to lathi charge and opened fire in the air to disburse the crowd.

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Disciplinary Proceedings were initiated against the group of Jawans by framing three Articles of charge. The Disciplinary Proceedings ended with the imposition of penalty of

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withholding three increments with cumulative effect.

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1. I have perused the Judgment and Order dated 21.03.2018 passed in WP (C) No. 4510/2011 etc and find that the present case is a covered case. Further, the said Judgment and Order passed in WP (C) 4510/2011 etc has also been followed in WP (C) 4284/2014, vide Judgment and Order dated 20.12.2021.

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Para 6 to 9 of the judgment and order dated 20.12.2021 passed in 4284/2014 is reproduced below:-

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“6. In the said bunch of cases, this Court after examining the facts and circumstances and after hearing the parties had come to a finding that the penalty could be imposed only on the basis of the charges no. 2 and partially to the extent to the charge no. 1. This Court has further held that as the punishment of withholding of 3(three) increments with cumulative effect had been passed by taking into account all the three charges, it was deemed appropriate that as only one of the charges in whole and the other charge in part have been found to have been proved and therefore, it would be appropriate for the disciplinary authority to revisit the quantum of punishment issued upon the petitioners.

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For ready reference, the operative paragraph 37 of the order dated 21.03.2018 is extracted hereinbelow-

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“37. What remains for the disciplinary authority is to impose a punishment based only upon the Charge No.2 and partially to the extent of Charge No.1. As the punishment of withholding of three increments with cumulative effect had been passed by taking into account all the three charges, therefore, it is deemed appropriate that as only one of the charges in whole and the other charge in part have been found to have been proved, therefore, it would be appropriate for the disciplinary authority to revisit the quantum of punishment issued upon the petitioners. In doing so, the respondent authorities shall consider as to what proper punishment would now required to be imposed on the petitioners considering the fact that the punishment of withholding of three increments with cumulative effect was passed in respect of all the three charges and now that they are required to pass the punishment only in respect of the second charge in whole and the first charge in part.”

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Shri A.K. Ray, the learned counsel for the petitioner prays for a similar direction.

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In this connection it would be suitable to refer to the observations made by the Hon’ble Supreme Court in numerous matters concerning judicial review of disciplinary

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action including the case of Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pan t, reported in (2001) 1 SCC 182 , which is as follows:

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“19. While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and the same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-nigh impossibility to decry availability of judicial review at the instance of an affected person. The observations as above, however, do find some support from the decision of this Court in the case of Apparel Export Promotion Council v. A.K. Chopra.”

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In view of the fact that the present case is covered by the Judgment and Order dated 21.03.2018 passed in WP (C) No. 4510/2011 etc. and Judgement and Order dated 20.12.2021 passed in WP (C) 4284/2014, the respondents are directed to revisit the quantum of punishment imposed upon the petitioner.

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Consequently, the impugned Order dated 12.09.2009, issued by the respondent no. 3 is hereby set aside, to the extent it relates to the penalty imposed.

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The writ petition is accordingly disposed of.

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JUDGE

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Ajay Prakash Tiwari v. Union of India and Ors.

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Ajay Prakash Tiwari v. Union of India and Ors.

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