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2015 DIGILAW 36 (GAU)

Dipak Kr. Dash v. Union of India

2015-01-19

UJJAL BHUYAN

body2015
JUDGMENT AND ORDER Ujjal Bhuyan, J. Since the subject matter of the three writ petitions is identical, those were heard together and are being disposed of by this common order. 2. Heard Mr. R. Ramchiary, learned counsel for the petitioner in WP(C) No.1178/2011 and Mr. B. Chakraborty, learned counsel for the petitioners in WP(C) No.6185/2005 and WP(C) No.2783/2004. Also heard Mr. S.C. Keyal, learned Asstt. Solicitor General of India for the respondents. 3. Challenge made in all the three writ petitions is to the discharge of the petitioners from Assam Rifles on getting four Red Ink entries in the service rolls. 4. A brief recital of the essential facts in each of the three writ petitions is considered necessary. WPC No. 1178/2011 5. In this case, petitioner had joined the Assam Rifles on 30.06.2001 as Rifleman/General Duty (GD). By the impugned order dated 20.01.2011, issued by the Commandant, 45 Assam Rifles, petitioner was discharged from the Assam Rifles on getting four Red Ink entries, thus rendering his retention in the Assam Rifles undesirable being an incorrigible offender. Out of the four Red Ink entries, one was on account of intoxication, the second one was because of being late in reporting back at the Head Quarters after doing outstation duty, the third one was on account of finding the petitioner in a sleeping condition during day time after completion of his quick reaction duty and the last one because of loss of identity card. The impugned order reads as under: - "ORDER 1. WHEREAS it is considered that the conduct of No. G/184653Y Rank Rfn/GD Name Dipak Kumar Dash of which has led him getting four Red Ink entries is such as to render his further retention in the public service undesirable being an incorrigible offender and having shown no improvement during his service. 2. AND WHEREAS No. G/184653Y Rank Rfn/GD Name Dipak Kumar Dash was afforded an opportunity to show cause against the proposed action vide 45 Assam Rifles letter No. A/45260/FE/2009/726 dated 07 Oct 2010. 3. NOW WHEREAS No. G/184653Y Rank Rfn/GD Name Dipak Kumar Dash has submitted his reply vide letter No. Nil dated 09 Oct 2010. The same was considered in terms of ROI 1/2004 and was found unsatisfactory by the competent authority. 4. 3. NOW WHEREAS No. G/184653Y Rank Rfn/GD Name Dipak Kumar Dash has submitted his reply vide letter No. Nil dated 09 Oct 2010. The same was considered in terms of ROI 1/2004 and was found unsatisfactory by the competent authority. 4. NOW THEREFORE, in exercise of the powers conferred on me under AR Act 1941 Sec 4 (a) read with para 24, Chapter VIII of AR Manual and Para 5 of ROI 1/2004, the undersigned hereby discharge the said No. G/184653Y Rank Rfn/GD Name Dipak Kumar Dash from the Assam Rifles being incorrigible offender soldier with effect from 22 Jan 2011 (Afternoon) with grant of service gratuity under provision of Rule 49 (I) of CCS (Pension) Rule 1972 as read with rule 40 and 49 of CCS (Pension) Rule 1972. Authority : HQ23 Sector AR has approved for discharge from service No. G/184653Y Rank Rfn/GD Name Dipak Kumar Dash under the provn of AR Act 1941 Sec 4 (a) read with ROI 1/2004 and Rule 24, Chapter VIII of AR Manual vide their approval No.2203/A/2010 dated 29 Dec 2010. (BB Yadav) Col. Comdt. 45 Assam Rifles." WPC No. 6185/2005 6. Petitioner joined the Assam Rifles as Rifleman in the year 1996. By the impugned order dated 19.09.2004, issued by the Commanding Officer, 22 Assam Rifles, petitioner was discharged from the Assam Rifles on getting four Red Ink entries. Out of the four Red Ink entries, one pertains to loss of identity card and the other three pertain to intoxication. The impugned order dated 19.09.2004 reads as under: - "ORDER 1. WHEREAS it is considered that the conduct of No. E/380290M Rank Rfn/BS Name Jodh Singh of which has led him getting four Red Ink entries is such as to render his further retention in the public service undesirable being an incorrigible offender and having shown no improvement during his service. 2. AND WHEREAS No. E/380290M Rank Rfn/BS Name Jodh Singh was afforded an opportunity to show cause against the proposed action vide 22 Assam Rifles letter No. 11025/A/2004 dated 04 May 2004. 3. AND WHEREAS No. E/380290M Rank Rfn/BS Name Jodh Singh has submitted his reply vide letter No. Nil dated 22 May 2004. The same was considered in terms of ROI 4/99 and was found unsatisfactory by the competent authority. 4. 3. AND WHEREAS No. E/380290M Rank Rfn/BS Name Jodh Singh has submitted his reply vide letter No. Nil dated 22 May 2004. The same was considered in terms of ROI 4/99 and was found unsatisfactory by the competent authority. 4. NOW THEREFORE, in exercise of the powers conferred on me under AR Act 1941 Sec 4 (a) read with para 24, Chapter VIII of Assam Rifles Manual and Para 6 of ROI 4/99, the undersigned hereby discharge the said No. E/380290M Rank Rfn/BS Name Jodh Singh from the Assam Rifles being incorrigible offender soldier with effect from 20 Sep 2004 (Afternoon). (JK Tiwari) Colonel Commanding Officer 22 Assam Rifles" WPC No. 2783/2004 7. Petitioner had joined the Assam Rifles as Rifleman in the year 1993. By the impugned order dated 31.01.2004, issued by the Officiating Commandant, 24 Assam Rifles, petitioner was discharged from the Assam Rifles on getting four Red Ink entries. Out of the four Red Ink entries, one pertains to overstay of leave, the second pertains to visiting out of bound areas without permission from the superior officers, the third pertain to loss of identity card and the last was because of gambling in unit line. Impugned order dated 31.01.2004 reads as under: - "ORDER 1. WHEREAS it is considered that the conduct of No. 2401637W Rfn/GD Amrandra Kumar Pandey of which has led him getting four Red Ink entries is such as to render his further retention in the public service undesirable being an incorrigible offender and having shown no improvement during his service. 2. AND WHEREAS No. No. 2401637W Rfn/GD Amrandra Kumar Pandey was afforded an opportunity to show cause against the proposed action vide AR letter No. 11014/A-36/2003/635 dt 02 Sep 2003. 3. AND WHEREAS. No. 2401637W Rfn/GD Amrandra Kumar Pandey has submitted his reply vide letter No. Nil dated 01 Oct 2003. The same was considered in terms of ROI 4/99 and was found unsatisfactory by the competent authority. 4. NOW THEREFORE, in exercise of the powers conferred on me under AR Act 1941 Sec 4 (a) read with para 24, Chapter VIII of Assam Rifles Manual and Para 6 of ROI 4/99, the undersigned hereby discharge the said No. 2401637W Rfn/GD Amrandra Kumar Pandey from the Assam Rifles being incorrigible offender soldier with effect from 31 Jan 2004 (Afternoon). NOW THEREFORE, in exercise of the powers conferred on me under AR Act 1941 Sec 4 (a) read with para 24, Chapter VIII of Assam Rifles Manual and Para 6 of ROI 4/99, the undersigned hereby discharge the said No. 2401637W Rfn/GD Amrandra Kumar Pandey from the Assam Rifles being incorrigible offender soldier with effect from 31 Jan 2004 (Afternoon). No. 2401637W Rfn/GD Amrandra Kumar Pandey is entitled to get pension and gratuity as admissible under rule. (Santosh Joseph) Lt. Col. Offg. Comdt." 8. The above discharge orders are under challenge in the three writ petitions. 9. Learned counsel for the petitioners submit that discharge of the petitioners is not at all justified and requires interference by the Court. For minor offences, which did not jeopardise the safety and security of the unit in any manner, petitioners have been harshly treated. Impugned actions do not reflect any application of mind and discharge orders have been issued most mechanically. 10. On the other hand, Mr. Keyal, learned Asstt. Solicitor General referring to the affidavits filed in WP(C) Nos. 6185/2005 and 1178/2011 submits that when a Rifle-man in the Assam Rifles gets four Red Ink entries, it is indicative of his overall conduct in the organization. Being a disciplined force, Assam Rifles cannot burden itself by retaining such personnel on its rolls when by their conduct, they had rendered themselves incorrigible and undeserving to be retained in the force. 11. Submissions made by learned counsel for the parties have been considered. 12. From a perusal of the impugned orders, it is seen that three petitioners have been discharged from the Assam Rifles after they got four Red Ink entries for the reasons as already noticed above. The petitioners were put on notice and after considering their response, the respective discharge orders were passed. 13. The issue regarding discharge from Assam Rifles on securing four Red Ink entries was gone into by a Division Bench of this Court in Balwant Singh v. Union of India & Ors., reported in 2011 (5) GLT 640. That was a case where a Rifleman was discharged from the Assam Rifles on getting four Red Ink entries. Out of the four Red Ink entries, three related to intoxication and one related to overstay of leave period. The Division Bench examined the provisions of Clause-5 of the Record Branch Instruction (ROI) No. 1/2004. That was a case where a Rifleman was discharged from the Assam Rifles on getting four Red Ink entries. Out of the four Red Ink entries, three related to intoxication and one related to overstay of leave period. The Division Bench examined the provisions of Clause-5 of the Record Branch Instruction (ROI) No. 1/2004. Clause-5 of ROI provides that under Chapter-VIII, Rule 24 of the Assam Rifles Manual power is conferred on the Commandant of an Assam Rifles battalion to discharge any member of the Assam Rifles below the rank of Naib Subedar in case he receives four or more Red Ink entries. The Division Bench held that the use of the expression "four or more Red Ink entries" and also the use of the word "may" in Clause-5 indicates that discretion is vested in the disciplinary authority to decide as to whether the person who is found to have received the Red Ink entries ought to be discharged from service or not. It was held that merely because a man receives four Red Ink entries, discharge is not automatic. Discretion is given to the Commanding Officer to consider discharge. The severity and the nature of the misconduct will have to be weighed before recourse is taken to exercise power conferred by Clause-5 of the ROI. 14. It is a settled position in law that when a discretion is vested in an authority to exercise a particular power, the same is required to be exercised with due diligence, and in reasonable and rational manner. Since order of discharge and the procedure preceding such discharge is of a summary nature, it is necessary that the order of discharge is a speaking order and must indicate how and in what manner the authority exercised the discretionary power. The Hon'ble Supreme Court in a catena of decisions has reiterated time and again the necessity and importance of giving reasons by the authority in support of its decision. It has been held that the face of an order passed by a quasi-judicial authority or even by an administrative authority affecting the rights of parties must speak. The affected party must know how his case or defence was considered before passing the prejudicial order. 15. Coming back to the three impugned orders, it is evident that none of the orders disclose how the responses of the petitioners were considered and why discharge was necessary. The affected party must know how his case or defence was considered before passing the prejudicial order. 15. Coming back to the three impugned orders, it is evident that none of the orders disclose how the responses of the petitioners were considered and why discharge was necessary. As held by the Division Bench just because the petitioners incurred four Red Ink entries, it does not ipso facto mean that they are to be discharged from the Assam Rifles. As pointed out by the Division Bench, the authority vested with the power to discharge must examine the response of the concerned person and weigh the same vis-a-vis the severity of the misconduct which led to incurring of the Red Ink entries in the service rolls. Such examination is not discernible from the impugned orders. 16. Having regard to the above, this Court is of the view that the impugned orders of discharge cannot be sustained. Accordingly, the orders of discharge of the petitioners are set aside and quashed. Matter is remanded back to the respondents for a fresh decision in the light of the Division Bench judgment in Balwant Singh (Supra) and the discussions made above. Respondents may consider imposition of any lesser punishment on the petitioners balancing the interest of the organisation and also that of the petitioners subject to assessment of physical fitness of the petitioners. 17. Writ petitions are allowed to the above extent. No costs.