Gauhati High Court
Ajay Prakash Tiwari vs Union Of India And Ors on 4 August, 2022
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GAHC010129102013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1110/2013
AJAY PRAKASH TIWARI
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..
VERSUS
UNION OF INDIA and ORS.
REP.BY THE SECRETARY, GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS,
NEW DELHI.
2:DY. INSPECTOR GENERAL
SHQ
SSB
TEZPUR.
3:COMMANDANT
33BN.
RANGIYA
DIST. KAMRUP
ASSAM
Advocate for the Petitioner : MS.T DAS
Advocate for the Respondent : MR. D C BORAHR-1 to 3
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 04.08.2022
Heard Mr. A. K. Roy, learned counsel for the petitioner as well as Mr. S. K. Medhi,
learned counsel for the all the respondents.
2) 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.
3) 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.
4) 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.
5) 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.
6) 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.
7) 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.
8) Para 6 to 9 of the judgment and order dated 20.12.2021 passed in 4284/2014 is
reproduced below:-
"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.
7. For ready reference, the operative paragraph 37 of the order dated 21.03.2018 is
extracted hereinbelow-
"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."
8. Shri A.K. Ray, the learned counsel for the petitioner prays for a similar direction.
9. 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
Pant, reported in (2001) 1 SCC 182, which is as follows:
"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."
9) 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.
10) 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.
11) The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
