Smt. Pushpa Kumari vs The Union Of India And 5 Ors
2022 Latest Caselaw 3453 Gua

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GAHC010149492022




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

                          Case No. : WP(C)/5922/2022

         SMT. PUSHPA KUMARI
         D/O- SRI VAKIL SINGH, W/O- SRI RAHUL RAJ, VILL- MANIKPUR, P.O.
         MANIKPUR, P.S. TARAPUR, DIST.- MUNGER, BIHAR, PIN- 813221 HAS BEEN
         WORKING AS CISF NO. 093170471 LC/GD PUSHPA KUMARI AT INDUSTRIAL
         SECTOR OF CISF UNIT, ONGC, NAZIRA, SIVSAGAR, ASSAM



         VERSUS

         THE UNION OF INDIA AND 5 ORS.
         MINISTRY OF HOME AFFAIRS, NEW DELHI

         2:THE INSPECTOR GENERAL (IG)
          CENTRAL INDUSTRIAL SECURITY FORCE (CISF)/NES
          PREMISES NO. 553 EAST KOLKATA TOWNSHIP
          KASBA
          KOLKATA- 107
         WEST BENGAL

         3:THE DY. INSPECTOR GENERAL (DIG)
          CENTRAL INDUSTRIAL SECURITY FORCE (CISF)
          OIL
          DULIAJAN
          DIBRUGARH
         ASSAM

         4:THE SENIOR COMMANDANT
          CENTRAL INDUSTRIAL SECURITY FORCE (CISF)
          OIL
          DULIAJAN
          DIBRUGARH
         ASSAM
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            5:THE COMMANDANT
             INDUSTRIAL SECTOR
             CENTRAL INDUSTRIAL SECURITY FORCE (CISF)
             OIL
             DULIAJAN
             DIBRUGARH
            ASSAM

            6:THE ASSTT. COMMANDANT/ADM
             CISF UNIT
             OIL
             DULIAJAN
             DIBRUGARH
            ASSA

Advocate for the Petitioner   : MR. A R BHUYAN

Advocate for the Respondent : ASSTT.S.G.I.




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                             ORDER

Date : 09-09-2022

Heard Mr. A.R. Bhuyan, learned counsel for the petitioner, who submits that the impugned Order dated 09.03.2013, by which the petitioner has been imposed with the penalty of lowering of pay scale by 3 (three) stages for a period of 3 (three) years should be set aside.

2. The facts of the case in brief is that the petitioner was appointed as a lady Constable/GD in the Central Industrial Security Force (CISF in short) and was posted at the Oil India Limited, Duliajan. A Departmental Inquiry was initiated against the petitioner on the charge of unauthorized absence of 40 days. The petitioner admitted to the charge of being unauthorizedly absent for 40 days and accordingly, the impugned Final Order dated 09.03.2013 was issued by Page No.# 3/6

imposing the penalty as follows:-

"Her present pay in the pay scale of Rs. 7260 + Rs. 2000 (Grade Pay) (in the pay band I of Rs. 5200 - 20200 + G.P. Rs. 2000/-) shall be lowered by three stages, i.e. to Rs. 6460 + 2000/- (Rs. 8460) for a period of three years with immediate effect. During this period, she will not be awarded any increment. The penalty imposed now shall affect her future incremental benefits".

3. Subsequent to the above Final Order dated 09.03.2013, the Deputy Inspector General, CISF issued another Order dated 01.08.2013, concluding that the charge against the petitioner was very serious in nature and accordingly, the earlier Final Order dated 09.03.2013 was set aside, with a direction to conduct a fresh inquiry. Pursuant thereto, a fresh inquiry was conducted, with regard to unauthorized absence of the petitioner.

4. The Inquiry Officer, vide his report dated 04.12.2013 came to a finding that the charge of unauthorized absence of the petitioner was proved. Thereafter, a Final Order dated 31.12.2013 was passed by the Commandant, CISF, by which the penalty of removal from service was imposed upon the petitioner. The petitioner being aggrieved filed a Departmental Appeal, which was rejected on 24.02.2014. The petitioner thereafter filed a Revision Petition, which was also rejected vide Order dated 17.10.2014.

5. Thereafter, the petitioner approached this Court by way of WP(C) No. 21/2015, wherein a challenge has been made by the petitioner, only with respect to the Final Order dated 31.12.2013, by which the petitioner had been removed from service.

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6. This Court disposed of WP(C) No. 21/2015 vide Judgment & Order dated 25.10.2019, by holding that the earlier Disciplinary Proceeding against the petitioner, having culminated in an order of major penalty in the form of lowering of scale of pay by 3 (three) stages, has redone the exercise of having a second Disciplinary Proceeding culminating in an order of removal from service, without any justifiable reason. Accordingly, this Court in WP(C) No. 21/2015 set aside the order of penalty of removal from service imposed vide Final Order dated 21.12.2013 and also stated that no observation was being made on the legality and validity of the initial penalty of reduction of lowering of pay scale by 3 (three) stages, as the same was not the subject matter of challenge in WP(C) No. 21/2015.

7. The petitioner, by way of this writ petition, has made a challenge to the earlier Final Order dated 09.03.2013, by which the penalty of reduction of lowering of pay scale by 3 (three) stages has been imposed on the petitioner, on the ground that the earlier Departmental Inquiry had not given the reasons for the unauthorized absence of the petitioner and that the penalty imposed was disproportionate to the offence.

8. Mr. B. Chakraborty, learned CGC appearing for the respondents, submits that the petitioner had admitted to the charge of unauthorized absence, as has been observed by this Court vide Judgment & Order dated 25.10.2019 passed in WP(C) No. 21/2015. He also submits that the petitioner, being a member of a Disciplined Force, the act of unauthorized absence has to be viewed seriously. He further submits that the penalty imposed was not disproportionate to the offence. Further, the petitioner had accepted the penalty imposed upon the petitioner vide the Final Order dated 09.03.2013.

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9. On perusing the Judgment & Order dated 25.10.2019 passed in WP(C) No. 21/2015, this Court finds that in the earlier round of litigation, this Court had observed in paragraph No. 3 of the Judgment & Order that the petitioner has admitted to the charge of unauthorized absence. Paragraph No. 7 of the Judgment & Order dated 25.10.2019 passed in WP(C) No. 21/2015 also shows that the petitioner had accepted the initial penalty imposed upon him. Paragraph No. 7 of the Judgment & Order dated 25.10.2019 passed in WP(C) No. 21/2015 is reproduced below:-

"7. Shri Deka, learned counsel for the petitioner, at the outset, has fairly submitted that he would mainly confining his arguments on the quantum of the punishment as initially the charge in question was admitted by the petitioner. Additionally, Shri Deka, learned counsel, submits that there has been procedural impropriety in the enquiry and without any reason, the initial penalty, which was accepted by the petitioner, was set aside and a new enquiry was directed to be conducted. Shri Deka, learned counsel, has also indicated that the requirement of affording an adequate opportunity to safeguard the delinquent has not been adhered to in the proceedings which rendered the enquiry a nullity in law".

10. On considering the fact that the petitioner has admitted to the charge of unauthorized absence and has also accepted the initial penalty imposed upon the petitioner, which is reflected at paragraph Nos. 3 & 7 of the Judgment & Order dated 25.10.2019 passed in WP(C) No. 21/2015, this Court is of the view that the petitioner cannot now change his stand after so many years and come with a new writ petition, by blowing hot and cold over the same issue.

11. In view of the reasons stated above, this Court does not find any merit in the writ petition.

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12. The writ petition is accordingly dismissed.

JUDGE

Comparing Assistant