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2014 DIGILAW 240 (TRI)

Nirmal Kar v. State of Tripura

2014-06-24

S.C.DAS

body2014
JUDGMENT S.C. Das, J. 1. Heard learned counsel, Mr. A. Pal for the petitioner and learned Additional G.A., Mrs. A.S. Lodh for the State respondents. 2. This writ petition is filed by the petitioner with the pleadings that he was selected for recruitment for basic training of Tripura State Rifles(for short, TSR) Jawan and he joined the training centre at R.K. Nagar, w.e.f. 01.10.2002 and continued upto 11.02.2004. Thereafter, he remained absent for sometimes due to illness of his wife and his parents. The Commandant of 9th Bn. TSR by a notice dated 08.12.2004 (Annexure-A to the writ petition) asked him to report to the Battalion on or before 30.12.2004, failing which disciplinary action will be taken against him as per TSR Act and Rules. Pursuant to that notice he joined his duties on 30.12.2004 and was performing his duties. But all on a sudden by order dated 14.02.2005 (Annexure-B to the writ petition) he was discharged from the service, w.e.f. 10.02.2005. No disciplinary proceeding was drawn up against him and he was discharged from the service illegally and wrongly. He was also not paid the salary for the period from 22.05.2004 to 18.06.2004, 03.07.2004 to 06.08.2004 and 30.12.2004 to 14.02.2005. He issued demand notice but received no response. Therefore, he filed the writ petition praying for directing the respondents to arrange payment of the arrear pay and taking him back to the service with immediate effect. 3. Respondents by filing counter affidavit pleaded that the petitioner was selected as a recruit for basic training in the training centre at R.K. Nagar, w.e.f. 01.10.2002. He failed to complete his basic training though sufficient opportunity was given to him. He absented himself from training lines without information to the competent authority. He joined on 30.12.2004 after absenting 147 days, pursuant to notice, dated 08.12.2004. Therefore, by order dated 14.02.2005 under Rule 10(5) of the Tripura State Rifles(Recruitment) Rules, 1984 he was discharged from the service. It is also stated that TSR is a disciplined force and it cannot be compared with other Govt. organization. If a TSR personal is allowed to break the discipline it will create a great problem for the force. Therefore, by order dated 14.02.2005 under Rule 10(5) of the Tripura State Rifles(Recruitment) Rules, 1984 he was discharged from the service. It is also stated that TSR is a disciplined force and it cannot be compared with other Govt. organization. If a TSR personal is allowed to break the discipline it will create a great problem for the force. It is also stated that earlier also the petitioner absented from training lines for the period from 11.05.2003 to 22.05.2003, 09.10.2003 to 23.10.2003 and from 13.04.2003 to 19.04.2003, which would show that the petitioner was habitual in absenting from the training and he failed to complete the recruit basic training and, as a result, he was discharged from the service under Rule 10(5) of the TSR Rules and Oath or Affirmation was not administered to him for his appointment. The respondents, however, contended that the arrear pay and allowances, etc. which the petitioner is entitled were being prepared and will be paid within a short time. 4. Learned counsel, Mr. Pal has submitted that under compelling situation the petitioner was absent from the training for a certain period but after receipt of notice, dated 08.12.2004 (Annexure-A) he joined his duties on 30.12.2004, and thereafter he continued in the job without any break, whereas all on a sudden, even without issuing a show cause notice he was discharged from the job which has violated his fundamental and legal right. As per notice dated 08.12.2004, submits learned counsel, Mr. Pal, that in the event of failing to join on or before 30.12.2004 he will have to face disciplinary action but while he already joined the post he was not supposed to be dismissed from the job without affording any opportunity of being heard about his absence. It is also contended by learned counsel, Mr. Pal that Rule 10(5) of the TSR Rules was not applicable in the case of the petitioner since the petitioner was a trainee and was yet to be appointed in the service. It is also contended that by a stigmatic order the petitioner has been discharged from the service without affording him any opportunity and so he is liable to be reinstated in the job. 5. Learned Addl. G.A., on the contrary, has contended that the petitioner was habitual in absenting himself in the training course for his appointment in the force as a TSR jawan. 5. Learned Addl. G.A., on the contrary, has contended that the petitioner was habitual in absenting himself in the training course for his appointment in the force as a TSR jawan. In the year 2003, he absented unauthorizedly on three occasions but he was still given chance to complete his training but again he absented unauthorizedly for 147 days, and as a result, notice was given to him to report by 30.12.2004 and when he reported the impugned order of discharge was passed by the competent authority since the petitioner was found unsuitable for the TSR service. 6. At the very outset, I am constrained to observe that the writ petition itself is devoid of consideration for suppressing the material fact. It is absolutely a cryptic writ petition without disclosing necessary particulars for consideration of the writ Court. For reference, let me reproduce here paras 2 and 3 of the writ petition which reads thus-- 2. That, the petitioner was selected for Rect basic training at TSR Training Centre, R.K. Nagar with effect from 1-10-2002. Accordingly the petitioner resumed in training centre and continued upto 11-02-2004. 3. That, thereafter the Petitioner had to remain absent from sometime due to serious illness of wife for gynecological problems and serious ailments of parents of the petitioner. The above two paragraphs reflects nothing as to when he remained absent from duties and whether he reported his absence to his superior authority or not. After the above pleadings the petitioner jumped to the notice dated 08.12.2004 by which he was asked to report to the Battalion on or before 30.12.2004. Annexure-B shows that he absented himself from basic training for 269 days from 12.02.2004 to 21.05.2004 (99 days), 19.06.2004 to 02.07.2004 (14 days), 07.08.2004 to 30.12.2004 (147 days). It is also stated in the counter affidavit that he was absent unauthorizedly on different occasions during the year 2003 also and the petitioner did not controvert that statement by filing any rejoinder affidavit. 7. The submission of learned counsel, Mr. Pal that the petitioner was not afforded any opportunity to show cause, does not deserve any consideration for the fact that the petitioner himself did not state anything in his writ petition about the period of absence and as to whether he reported the absence to his superior authority or not. 7. The submission of learned counsel, Mr. Pal that the petitioner was not afforded any opportunity to show cause, does not deserve any consideration for the fact that the petitioner himself did not state anything in his writ petition about the period of absence and as to whether he reported the absence to his superior authority or not. It is crystal clear that the petitioner was unauthorizedly absent from his regular training while he was simply a recruit for training course and, hence, the petitioner does not deserve any sympathetic consideration. 8. Both side referred sub-rules(3), (4) and (5) of Rule 10 of TSR(Recruitment) Rules. For reference, Rule 10 is reproduced as follows: 10. Procedure for enrolment: (1) The enrolment for different ranks shall be done in the manner prescribed in section 6 of the Act. (2) Every person, selected for enrolment, shall be put questions contained in the form of enrolment set out in Part-I of Appendix-II and shall, after having been cautioned that if he makes a false answer to any such question he shall be liable to punishment under the Act, record or cause to be recorded his answer to each such question. The recruitment form as set out in Part-III of Appendix-II and the enrolment form shall be signed after completion both by the person selected for enrolment and the enrolling Officer thereafter the said person shall be deemed to be enrolled. (3) Every person appointed as a member of the Rifles shall be administered with due ceremony, the Oath or Affirmation setout in Appendix-III after successful completion of its training. (4) The Oath or Affirmation shall be administered by the Commandant of the person to be attested or in the unavoidable absence of the Commandant by the Officer of the Rifles authorized in writing by the Commandant in this behalf. (5) The Oath or affirmation shall be administered after the person to be attested has successfully completed his training. Failure to complete this training shall render the individual concerned liable to discharge without any compensation under the orders of the authority competent to make appointment to the rank to which the individual concerned was appointed. (6) The Officer administering the Oath or Affirmation shall attest that he has done so by signing an attestation paper as given in Appendix-III which shall be attached to the Service Book of the person attested. (6) The Officer administering the Oath or Affirmation shall attest that he has done so by signing an attestation paper as given in Appendix-III which shall be attached to the Service Book of the person attested. (7) The attestation may be waived by the Commandant in case of personnel deputed to his Battalion if they have already been administered such an Oath or Affirmation elsewhere. 9. The submission of learned counsel, Mr. Pal that sub-rule(5) is not applicable in the case of the petitioner since Oath or Affirmation was not administered to the petitioner after completion of his training does not seem to be a good argument. A meticulous reading of Rule 10 as a whole makes it clear that a person at the beginning is enrolled in different ranks as prescribed in Section 6 and after enrolment a recruitee shall be put on training and on his successful completion of training he will be administered the Oath or Affirmation set out in Appendix-III of the Rules. Rule 5 prescribes that if a recruitee fails to complete the training he shall be liable to be discharged. In the case of the petitioner, he was recruited for the basic training of the TSR jawan but he could not complete his training because of his unauthorized absence. Therefore, there was no question of administering Oath or Affirmation. Oath or Affirmation will be administered only after completion of training and not before that and while a person fails to complete his training he will be liable to be discharged as per sub-rule(5). So, the argument advanced by learned counsel, Mr. Pal merits no consideration since in the case of the petitioner he was discharged while he was on training on the ground that he could not complete his training. The submission of learned Addl. G.A. is that Rule 15(1) also shall apply is not acceptable since the rule of probation shall apply only after appointment of a person in the service and not before that. Since the petitioner was simply selected as a trainee and he could not successfully complete his training because of his unauthorized absence on repeated occasions he was discharged from service invoking the provision of sub-rule(5). The petitioner was a recruitee for training and was not appointed in the service, so, his discharge from the job by the impugned order dated 14.02.2005, whether stigmatic or not, is totally irrelevant. The petitioner was a recruitee for training and was not appointed in the service, so, his discharge from the job by the impugned order dated 14.02.2005, whether stigmatic or not, is totally irrelevant. There is no legal requirement of service of a show cause notice or drawing a disciplinary proceeding as per rules in the facts and circumstances of the case. 10. In the writ petition, the petitioner simply prayed for a direction to the respondents to arrange payment of arrear pay and taking him back to the service with immediate effect. The petitioner even did not challenge the impugned order dated 14.02.2005 by which he was discharged from the service. While that order remains in force no direction can be given to the respondents to take him back in the service. The respondents in their counter affidavit admitted that the salary payable to the petitioner for the period he has undergone training was not paid and that the petitioner will be paid the arrear pay and allowances for the period after complying the formalities. The respondents are directed to make payment of the arrears of pay and allowances to the petitioner for the period he is entitled to get within two months from today, if already not paid in the meantime. 11. With the above observations, the writ petition stands disposed of. No costs.