Gauhati High Court
Bimal Payeng vs The State Of Assam And 6 Ors on 23 April, 2021
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GAHC010177662020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./1/2021
BIMAL PAYENG
S/O SRI PURNA KANTA PAYENG, R/O PRAGATI APARTMENT, LAKHIMI
PATH, BELTOLA, P.S. BASISTHA, DIST- KAMRUP METRO, ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY ITS PRINCIPAL SECY. TO THE GOVT. OF ASSAM, FINANCE DEPTT.,
DISPUR, GHY-6
2:THE ADDL. CHIEF SECY. GOVT. OF ASSAM
PandPG DEPTT.
DISPUR
GHY-6
3:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM
PENSION and PUBLIC GRIEVANCES DEPTT.
DISPUR
GHY-6
4:THE DIRECTOR OF PENSION
HOUSEFED COMPLEX
DISPUR
GHY-6
5:THE SECY. TO THE GOVT. OF ASSAM AND DIRECTOR OF FINANCIAL
INSPECTIONS
ASSAM
DISPUR
GHY-6
6:MRS. F. SAMSUEL
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ACS
DY. SECY.
PENSION and PUBLIC GRIEVANCES DEPTT. AS ENQUIRY OFFICER
DISPUR
GHY-6
7:THE DY. INSPECTOR OF SCHOOLS
BARPET
Advocate for the Petitioner : MR J PAYENG
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 23-04-2021
Heard Mr. J. Payeng, learned counsel for the petitioner as well as Mr. G. Bordoloi,
learned counsel for the respondent nos.2, 3 and 4 and Mr. A. Chaliha, learned counsel for the
respondent nos.1 and 5 as well as Ms. S. Konwar, learned standing counsel for the
respondent no.7.
2. In view of the nature of grievance raised in this review petition, issuance of notice
on the respondent no.6 is dispensed with as all the other necessary parties are duly
represented.
3. This petition for review is directed against the order dated 15.05.2019 passed in
WP(C) 3272/2015. From the submissions made by the learned counsel for the petitioner, it
appears that the observations made by this Court in para-19 of the order is required to be
revisited by this Court. The said para-19 is extracted below:
"Accordingly, this Court is inclined to set aside the (i) Order No.PPG(P) 129/2013/164 dated
19.02.2015 issued by the Commissioner & Secretary to the Govt. of Assam, Pension and
Public Grievances Deptt., (ii) Office Order under Memo No.DP/81/92/84 dated 23.02.2015
issued by the Director of Pension, Assam, and (iii) Order No.PPG(P) 129/2013/229 dated
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16.05.2015 passed by the Additional Chief Secretary to the Government of Assam, Pension
and Public Grievances Deptt., without affecting the Enquiry Report in connection with the
disciplinary proceeding. The matter is remanded back to the disciplinary authority to re-
examine the punishment inflicted upon the petitioner afresh and to pass appropriate orders in
the case of the petitioner without being influenced by the 3(three) orders that have been set
aside. In order to facilitate the same, the petitioner shall be deemed to be in service only for
the limited purpose of the departmental proceeding from the date of his dismissal from the
service till the date the fresh order is passed by the disciplinary authority. It is further
provided that the petitioner shall not be entitled to back wages, but he shall be emitted to
notional benefits for pension and other retirement benefits."
4. The learned counsel for the petitioner has submitted that the said order had
contemplated a situation that the disciplinary authority would re-examine the punishment
inflicted upon the petitioner afresh and pass appropriate orders. However, in his wisdom, the
respondent no.3 by passing the order bearing No. PPG(T) 129/2013/525 dated 30.08.2019
and order bearing No.PPG (P)129/2013/533 dated 06.12.2019, re-examined and revised the
penalty. The operative part thereof is reproduced below:
"In compliance of the above Hon'ble High Court's order dated 15.05.2019, the matter has
been re-examined and revised penalty is awarded to Sri Bimal Payeng by withholding one
increment with cumulative affect under the provision of Rule 7(iii) of A.S. (D &A) Rule 1964
and it is further decided to regularize the suspension period with effect from 15.05.2013 to
18.02.2015 treating the period as on duty and counted for all purposes. However, the period
with effect from 19.02.2015 to the date of his joining shall be regularized by treating the
period as leave without pay. The said period shall be counted notionally for pension and
pensionary benefits in relaxation of Rule 54 of AS(P) Rule, 1969. Sri Bimal Payeng is
reinstated in service with immediate effect and allowed to draw regular pay and allowances
as entitled from the date of joining in his duty. His pay shall be fixed notionally on the basis
of the last pay drawn on the date preceding the date of his suspension. The departmental
proceeding stands disposed accordingly."
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5. The learned counsel for the petitioner has submitted that as the suspension period
of the petitioner was regularized, the authorities ought not to have penalized the petitioner by
withholding back wages from the date of his suspension till re-instatement.
6. The submission of the learned counsel for the parties have been given due
consideration. From the nature of submission made by the learned counsel for the petitioner,
it is apparent that the order impugned herein does not suffer from any error from the face of
record. Merely because the competent authority have taken action which according to the
petitioner was not the intent and purport of the herein before referred judgment and order
dated 15.05.2019, that could not be a basis to arrive at a conclusion that the review is
necessitated because of discovery of new and important matter that came into existence
subsequently or that there was any mistake or error in the face of the record. Hence, if
aggrieved, the subsequent orders has to be challenged by the petitioner is in merit, if so
advised. Therefore, if the petitioner finds himself aggrieved by the order dated 30.08.2013
passed by the respondent no.3, it is made clear that the observation made by this Court in
the judgment and order dated 15.05.2019 in WP(C) 3272/20105 shall not stand in the way.
7. With the aforesaid observation this review petition stands closed.
JUDGE
Comparing Assistant
