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2003 DIGILAW 557 (GAU)

Nishikanta Singh v. Union of India (UOI)

2003-12-08

BIPLAB KUMAR SHARMA

body2003
JUDGMENT B.K. Sharma, J. 1. This writ petition has been filed making a grievance against the order dated 10.12.1998 removing the writ Petitioner from services. I have heard Mr. P.K. Roy Choudhury, learned Counsel for the Petitioner and Mr. C. Choudhury, learned Senior Central Govt. Standing Counsel appearing for the Respondents. 2. The facts leading to the filing of the writ petition are more less admitted. The Petitioner on the relevant time, while was serving as peon under the establishment of the Respondent No. 4, was issued with a memorandum of charge sheet dated 03.08.1998. Although two charges were framed against the Petitioner, basically, there is only one charge which is, entering into second marriage by the Petitioner during the life time of his first wife. The plea of the Petitioner before the Enquiry Authority was that he had gone for the second marriage when the whereabouts of his first wife was not knovra for a period of ten years. However, from the Enquiry Report it appears that the Petitioner had admitted his facts as narrated in the charges and thereby had admitted his guilt. 3. After submission of the Enquiry Report, the Petitioner was provided with an opportunity of making a representation against the said Enquiry Report which he accordingly did. Thereafter, the order of penalty dated 10.12.1998 was passed by the Disciplinary Authority removing him from service with immediate effect. 4. The writ petition has been filed against the said order of penalty. The learned Counsel for the petitions while admitting with that Petitioner was guilty of the charge, has urged that the gravity of the offence is not such so as to warrant the extreme penalty of removal from service taking away his livelihood. Considering the fact that the Petitioner belongs to the lower stratum of the society and that he was merely a Peon serving under the Respondent No. 4 and also having the burden of his family members, the penalty imposed on him is disproportionate, it is submitted. 5. In support of his submission Mr. Roy has placed reliance on two decisions of this Court as reported in 2003 (3) GLT 558 (Tilok Singh Rawat v. Union of India and Ors.). 5. In support of his submission Mr. Roy has placed reliance on two decisions of this Court as reported in 2003 (3) GLT 558 (Tilok Singh Rawat v. Union of India and Ors.). The Division Bench of this Court under similar circumstances set aside the punishment of dismissal from service in case of the Appellant in that case and left it upon for the Disciplinary Authority to impose a Ughter punishment. It was provided in the said decision that Disciplinary Authority would be at liberty to pass any punishment except dismissal or removal after taking into consideration of the entire facts and circumstances of the case. In the decision as reported in 2002 (3) GLT 66 (D. Baishya v. Union of India and Ors.). The Single Bench of this Court following the aforesaid decision of the Division Bench set aside the order of removal passed against the Petitioner in that case. The matter was remanded back to the Disciplinary Authority to award any other punishment except dismissal or removal. Mr. Choudhury, learned Counsel appearing for the Respondents has placed reliance on another Division Bench judgment of this Court passed on 13.06.2001 in Writ Appeal No. 262/98 (Kamaleswar Kalita v. Union of India and Ors.). He has also placed reliance on the decision of the Apex Court as reported in (2002) 5 SCC 11 (Union of India v. N. Singh) wherein the Apex Court has reiterated the principle involved regarding the imposition of penalty by the Disciplinary Authority and the scope of interference of the writ court in exercising of its power of judicial revision. In the said decision, the Apex Court has held that the writ Court can not interfere with the quantum of punishment awarded if the charges are proved and are of serious nature. (Emphasis added). 6. In the Division Bench judgment dated 13.06.2001 passed in writ appeal No. 2621/98, the Division Bench of this Court while not interfering with the punishment of removal from service imposed on the Appellant in the similar circumstances as in the instant case, left it for Disciplinary Authority to give a fresh consideration more particularly, having regard to the fact that the Petitioner therein was to maintain two wives and two children. 7. In the instant case, I find that the Petitioner has not prefer any appeal as provided in C.C.S. (C.C.A.) Rules, 1965. 7. In the instant case, I find that the Petitioner has not prefer any appeal as provided in C.C.S. (C.C.A.) Rules, 1965. I have given me anxious consideration to the submissions advanced by the learned Counsel for the parties. The charges have been admitted by the Petitioner which will necessarily entail a punishment However, the Petitioner was working under the Respondent No. 4 as a grade-IV employee (Peon). It is not the case of the Respondents that the offence of second marriage committed by the Petitioner during the life time of his first wife has interfered in any manner in discharge of his official duties. In my considered opinion and also having regard to the aforesaid decision of this Court, there is a scope for reducing the penalty of removal from service by substituting the same with another penalty. The extreme penalty of removal from service has naturally taken away the livelihood of the Petitioner's family. The fault committed by the Petitioner has resulted in consequential adverse situation to the family members. 8. Considering those above aspects of the matter and more particularly, in view of the fact that the Petitioner has not preferred any appeal as provided under the Rules, I hereby close the writ petition with a direction that the Petitioner will now prefer an appeal before the appellate authority against the order of removal passed against him. The appellate authority having regard the observations made above will take a sympathetic view of the matter. Although I am not inclined to interfere with the penalty exercising my power of judicial review under Article 226 of the Constitution of India, I hope that the appellate authority having regard to the facts and circumstances involved in the case and more particularly the fact that the Petitioner belongs to the lower stratum of the society and was merely working as a peon and that he has the burden of the family members, will take a sympathetic view of the matter and consider to pass any lesser penalty substituting the penalty of removal from service. The writ Petitioner will not be entitled to any block wapes in such an eventuality. 9. The above exercise shall be carried out by the appellate authority within a period of three months from the date of filing the appeal by the Petitioner. The writ Petitioner will not be entitled to any block wapes in such an eventuality. 9. The above exercise shall be carried out by the appellate authority within a period of three months from the date of filing the appeal by the Petitioner. In the event of filing of the appeal by the Petitioner the Disciplinary Authority will forward to the appellate authority the records pertaining to the disciplinary proceeding to the appellate authority for consideration of the case of the Petitioner as desired above. 10 With the above directions and observations, the writ petition stands disposed of 11. No order as to cost.