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2015 DIGILAW 112 (MEG)

Karam Singh v. Union of India

2015-07-24

T.NANDAKUMAR SINGH

body2015
ORDER : Heard Mr. R Jha, learned counsel for the petitioner and Mr. K Paul, learned CGC appearing for the respondents. 2. This Court passed an order on 02.06.2015 in this writ petition, which reads as follows:- “02.06.2015 Mr. R Jha, learned counsel for the petitioner contended that under Section 11 of the Assam Rifles Act, 2006, the Commandant is not the competent authority to remove, discharge or dismiss the service of the Sepoy of the Assam Riflemen. He also contended that this Court i.e. Single Bench and Division Bench in similar cases had already held that the Commandant is not the competent authority to remove, discharge or dismiss the service of the Riflemen under Section 11 of the Assam Rifles Act, 2006. One of the copies of the judgment and order of this Court in the earlier cases is furnished to Mr. K Paul, learned CGC appearing for the respondents. Mr. K Paul, learned CGC is directed to take instruction as to whether the Assam Rifles had filed any SLP against the said judgment and order of the Division Bench of this Court wherein and where-under, the Division Bench of this Court held that the Commandant is not the competent authority to remove, discharge or dismiss the service of the Riflemen under Section 11 of the Assam Rifles Act, 2006 to the Apex Court within a period of two weeks. List this case on 16.06.2015.” 3. The impugned order dated 26.09.2010 (Annexure-V to the writ petition) is passed by the Commandant 11th Assam Rifles for discharging the present petitioner from service. The impugned order dated 26.09.2010 reads as follows:- “OFFICE OF THE COMMANDANT 11 ASSAM RIFLES, C/O 99 APO No.I.115328/KS/2010-A/3335 Dated: 26 Sep 2010 ORDER 1. WHEREAS, No.G/115328N Rifleman/General Duty Karam Singh of 11 Assam Rifles has been charged for contracting plural marriage contravention to the Rule 21 of CCS (Conduct) Rule. 2. AND WHEREAS, it is considered that the conduct of the said No.G/115328N Rifleman/General Duty Karam Singh which has led to render his further retention in the public service undesirable since the charge is such as to warrant the imposition of a major penalty. 3. AND WHEREAS, the said No.G/115328N Rifleman/General Duty Karam Singh was given an opportunity of personal hearing and offer his written explanation. 4. 3. AND WHEREAS, the said No.G/115328N Rifleman/General Duty Karam Singh was given an opportunity of personal hearing and offer his written explanation. 4. AND WHEREAS, the said No.G/115328N Rifleman/General Duty Karam Singh has given a written explanation which has been duly considered by the undersigned. 5. Now, therefore, in exercise of the powers conferred by Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rule 1965 the undersigned hereby discharge No. G/115328N Rifleman/General Duty Karam Singh of 11 Assam Rifles shall be compulsorily retired from service with effect from 27 Sep 2010 (FN). Sd/- (P S Chhonkar) Colonel Commandant Memo No.I.115328/KS/2010-A/3335 Dated: 26 Sep 2010 No. G/115328N/ Rifleman/General Duty Karam Singh Copy to:- 1. Mahanideshalaya Assam Rifles, Directorate General Assam Rifles (A/Rec/CPBO/NE) Pin – 900332 Shillong – 11. 2. Directorate of Assam Rifles Group Insurance Scheme, Shillong – 793011. 3. HQ 9 Sector Assam Rifles Pin – 934829 C/O 99 APO Internal Rec/Fin Branch – for info and necessary action please.” 4. It is the submission of Mr. K Paul, learned CGC appearing for the respondents that the disciplinary proceedings against the petitioner had been taken up by the authority under the Central Civil Service (Classification, Control and Appeal) Rule 1956 and thereafter, the impugned order dated 26.09.2010 had been passed by the Commandant for discharging the petitioner from service. Mr. R Jha, learned counsel for the petitioner contended that the impugned order dated 26.09.2010 is not the order for compulsory retirement simpliciter inasmuch as after the full length departmental enquiry, the impugned order dated 26.09.2010 had been passed for discharging the petitioner from service. Be that as it may, the only point raised by the petitioner for assailing the impugned order dated 26.09.2010 is that the Commandant is not the competent authority for dismissing/discharging the petitioner who is a Rifleman GD from service. In support of his contention, Mr. Jha, learned counsel for the petitioner has drawn the attention of this Court to Section 11 of the Assam Rifles Act, 2006 (for short ‘the said Act of 2006’), which reads as follows:- “11. Dismissal, removal or reduction by Director-General and by other officers.– (1) The Director-General, Additional Director-General or any Inspector-General may dismiss or remove from service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer. Dismissal, removal or reduction by Director-General and by other officers.– (1) The Director-General, Additional Director-General or any Inspector-General may dismiss or remove from service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer. (2) An officer not below the rank of Deputy Inspector-General may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or the ranks as may be prescribed. (3) Any such officer as is mentioned in sub-section (2) may reduce to a lower grade or rank or the ranks any person under his command except an officer or a subordinate officer. (4) The exercise of any power under this section shall be subject to the provisions of this Act and the rules and regulations.” 5. Both the learned counsel appearing for the parties are not disputing that this Court i.e. Single Bench and Division Bench had already passed in a number of writ petitions filed by the Riflemen General Duty that the Commandant is not the competent authority under Section 11 of the said Act of 2006 for passing the order of removal or dismissal from service of the Riflemen General Duty. One of the judgments and orders of the Division Bench passed in Writ Appeals wherein and where-under, the learned Division Bench affirmed the decision of the learned Single Judge that the Commandant is not the competent authority for dismissing or discharging the Riflemen General Duty is placed before this Court. For easy reference, one of the said judgments and orders of the Division Bench dated 03.09.2014 for disposing of two writ appeals are quoted hereunder:- ORDER : U.N. Singh, J. Heard learned counsel appearing for parties and perused the record of writ appeals. 2. This order shall also dispose of similar Writ Appeal No.51/2013 listed today. One and only question that needs to be addressed has already been concluded vide a Judgment dated 29.08.2011 passed by Division Bench headed by one of us (T.N.K. Singh, J) in WA No.(SH)33/2011, wherein it has been held that the discharge order in terms of Section 11(2) of the Assam Rifles Act, 2006 (for short ‘the Act of 2006’) has to be passed by a Deputy Inspector General of Assam Rifles and not by a Commandant. For easy reference, Section 11 of the said Act of 2006 is reproduced herein below:- “11. Dismissal, removal or reduction by Director-General and by other officers.- (1) The Director-General, Additional Director-General or any Inspector-General may dismiss or remove from service or reduce to a lower grade or rank or the ranks any person subject to this Act other than on officer. (2) An officer not below the rank of Deputy Inspector-General may dismiss or remove from the service any person under his command other than an officer or a subordinate officer of such rank or the ranks as may be prescribed. (3) Any such officer as is mentioned in sub-section (2) may reduce to a lower grade or rank or the ranks any person under his command except an officer or a subordinate officer. (4) The exercise of any power under this section shall be subject to the provisions of this Act and the rules and regulations.” 3. In the judgment/order passed by Division Bench as referred to herein above in Writ Appeal No.(SH)33/2011, the issue has been discussed in the light of various judgments of Hon’ble the Apex Court which may now need no further elucidation. The judgment dated 29.08.2011 passed in WA No.(SH)33/2011 is also reproduced for ready reference as under:- “29.08.2011 (T.N.K. Singh, J) Heard Mr. S.C. Shyam, learned counsel for the appellants-respondents in the writ petition. This appeal is directed against the judgment and order of the learned Single Judge dated 20.07.2011 allowing Writ Petition (C) No. (SH) 148 of 2010 filed by the respondent-writ petitioner, assailing the order dated 09.02.2010 issued by the Commanding Officer for dismissing the writ petitioner from service for the simple reason that under section 11(2) of the Assam Rifles Act, 2006 the Deputy Inspector General is the competent authority for dismissing Rifleman (General Duty). The only ground for filing the present writ appeal is that if the relief sought for by the respondent-writ petitioner in WP(C) No. (SH) 148/2010 is allowed on the ground that the Commandant is not the competent authority for dismissing Rifleman, a flood gate will be opened inasmuch as many Riflemen had been dismissed from service by the Commandant. We have also perused Section 11(2) of the Assam Rifles Act, 2006 and it is clear that the Deputy Inspector General is the competent authority for dismissing the Riflemen (General Duty). We have also perused Section 11(2) of the Assam Rifles Act, 2006 and it is clear that the Deputy Inspector General is the competent authority for dismissing the Riflemen (General Duty). Such being the situation, we are of firm view that dismissal order dated 09.02.2010 issued by the Commandant is illegal inasmuch as he is not competent authority for issuing dismissal order of the Riflemen (General Duty), and the Deputy Inspector General is competent authority. It is fairly well settled that door of justice cannot be closed to the citizens only on the ground that relief sought for, if granted will open the flood gate. Regarding this point, reference may be made to the decisions of the Apex Court in (1) Guruvayoor Devaswom Managing Committee & Anr Vs C.K. Rajan & Ors : (2003) 7 SCC 546 (2) Zee Telefilms Ltd & Anr Vs Union of India & Ors : (2005) 4 SCC 649 and (3) Coal India Ltd & Ors Vs Saroj Kumar Mishra : (2007) 9 SCC 625 . For the foregoing reasons we are in complete agreement with the judgment and order of the learned Single Judge dated 20.07.2011 allowing WP(C) No. (SH) 148 of 2010 for setting aside the dismissal order dated 09.02.2010 issued by the incompetent authority i.e. Commandant. Accordingly, this writ appeal is devoid of merit and dismissed. Mr. Shyam, learned CGC appearing for the appellants prays for extending time for compliance with the directions mentioned in the impugned judgment and order dated 20.07.2011. Taking into consideration of the prayer and also the peculiar circumstances of this case, further two months’ time is granted for complying direction of this court (learned Single Judge) in the judgment and order dated 20.07.2011 from today.” 4. Moreover, the above judgment /order dated 29.08.2011, has also been affirmed by the Hon’ble Apex Court vide the order of dismissal dated 06.02.2012 passed in Special Leave Petition No.2164 of 2012 filed by appellants-Union of India against the order dated 29.08.2011 of Division Bench as referred to herein above. In this view of the matter, learned counsel for appellants-Union of India, has no valid case to advance. Thus, these appeals are dismissed and disposed of in terms of the aforesaid judgment and order dated 29.08.2011.” 6. Mr. In this view of the matter, learned counsel for appellants-Union of India, has no valid case to advance. Thus, these appeals are dismissed and disposed of in terms of the aforesaid judgment and order dated 29.08.2011.” 6. Mr. K Paul, learned CGC appearing for the respondents fairly submits that the Apex Court had already affirmed the judgment and order passed by this Court (Justice T.N.K. Singh) that the Commandant is the not the competent authority under the said Act of 2006 for dismissing or discharging the Riflemen General Duty. 7. In the above factual backdrop, this writ petition is allowed by setting aside the said impugned order dated 26.09.2010. In the consequence thereof, the petitioner should be reinstated in service.