WP(C)/4518/2008
2023 Latest Caselaw 2379 Gua

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GAHC010088132008




                                        Judgment reserved on   23.02.2023

                                       Judgment delivered on   06.06.2023



                        In the Gauhati High Court

        (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)


                     W.P(C) NO.4518 OF 2008
                    Kaladhar Chaubey,
                    Son of Sharda Prasad Chaubey
                    R/o Hathiar Khurd, P.O. Katihar Kala,
                    P.S.-Cholapur, Dist: Varanasi (U.).
                                                                    ........Petitioner

                         -Versus-

                       1. The Union of India
                       Represented by the Home Secretary, Govt. of India, New Delhi
                       2. The Dy. Inspector General,
                       CISF, (NEZ), Kolkata-17
                       3. The Commandant,
                       CISF, Unit ONGC, Jorhat
                       4. The Assistant Commandant,
                       CISF, Unit ONGC, Jorhat

                                                               ........Respondents

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-B E F O R E -

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.

Page No.# 6/10

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