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2018 DIGILAW 40 (MAN)

Chandra Prakash Dubey v. Union of India

2018-08-27

KH.NOBIN SINGH

body2018
ORDER : Kh. Nobin Singh, J. 1. Heard Shri A. Mohendro, the learned counsel appearing for the petitioner and Shri S. Samarjeet, the learned CGC appearing for the respondent. 2. By the instant writ petition, the petitioner has prayed for issuing a writ of certiorari or any other appropriate writ to quash the result/report of the Service Review Board dated 31.10.2014 in respect of the petitioner and the order dated 18.11.2014 issued by the Maj, SO-2(Coord) for DGAR. 3.1 Facts and circumstances as narrated in the writ petition, are that the petitioner was initially appointed as Naik Writer on regular basis vide order dated 25.05.1985 and after having served in that capacity for many years, the petitioner was promoted upto the rank of Naik Subedar Clerk. The petitioner earned many meritorious rewards for dedication in service including a reward namely, Governor Gold Medal in January, 2012. After having served at different places and in the month of August, 2012, the petitioner was transferred and posted at 24th Assam Rifles. While he was being posted at 24th Assam Rifles, he was detailed for duty at A-Branch, the nature of which included maintaining the stationery and computer materials. As regards the purchase of stationery materials pursuant to the instruction of the higher officials, there was an allegation against the petitioner, on the basis of which the respondent No. 4 held an enquiry through Adjutant Major Aditya Vanka thereby issuing a show-cause notice dated 11.2.2013 as to why a sum of Rs. 70,147/- over and above the fund of M & E (T) was ordered without prior approval of the Commandant. The petitioner submitted his explanation dated 13.02.2013 which led the respondent No. 4 to check all materials and thereafter, the petitioner went home on leave and from there, he submitted a representation dated 19.05.2013 to the respondent No. 2 requesting him for dropping the charges and re-examination of the matters. In respect of the said representation dated 19.05.2013, a Staff Court of Enquiry was held by the Additional Director General of Assam Rifles and report thereof was submitted. In addition thereto, the respondent No. 4 also conducted a Battalion Code of Enquiry against the petitioner without any showing reason and later, the matter was closed. In respect of the said representation dated 19.05.2013, a Staff Court of Enquiry was held by the Additional Director General of Assam Rifles and report thereof was submitted. In addition thereto, the respondent No. 4 also conducted a Battalion Code of Enquiry against the petitioner without any showing reason and later, the matter was closed. 3.2 Very surprisingly, when the petitioner came back from leave, he was falsely implicated in a matter in which show-cause notice dated 04.06.2013 was served directing him to explain for failing to rejoin the service on 26.05.2013. The petitioner explained that since 26th May, 2013 being a Sunday and 27th May, 2013 being a restricted holiday, he reported at the Transit Camp at Kolkatta on 28.05.2013 and on 01.06.2013, he reported at the Battalion but even after his reporting at the battalion, the battalion issued a signal dated 01.06.2013 to all the concerned informing that the petitioner was absent without leave. 3.3 With an ill motive and in order to revenge for his representation dated 19.05.2013, the respondent No. 4 framed charges dated 01.08.2013. Despite explanations being given to the charges by him, the petitioner was awarded punishment as severe reprimand and 3 (three) days pay fine. Very surprisingly, on 7.03.2014 i.e. after a year, the respondent No. 4 issued a tentative charge sheet alleging that on 10th February, 2013, the petitioner totally neglected his duty and thereafter, the respondent No. 4 issued a order dated 19.09.2014 charging that the petitioner had neglected his work. 3.4 While the petitioner was being posted at other battalions, there was no such thing happened but very unfortunately, when the petitioner placed true facts of what was happening at the battalion before the respondent No. 2, the respondent No. 4, with an evil eye, issued many back dated show-cause notices and on 8th February, 2014 Major Abhishek Dubey Adjutant wrote a letter to the petitioner with respect to his ACR for the period of 01.04.2012 to 31.03.2013 wherein it has been stated that the petitioner is a professionally incompetent JCO having a habit of bypassing a chain of commands. According to the petitioner, before completion of the period from 01.04.2012 to 31.03.2013, Major Abhisek Dubey had already been transferred and the petitioner was never warned by any officer regarding the sincerity and hard work and moreover, the petitioner was never given any notice about his alleged poor performance in order to give an opportunity to explain the allegations. 3.5 While the petitioner was being posted at A-Branch of 24th Assam Rifles, he was detailed at Medical Branch and at the pressure of the respondent No. 4, the Medical Officer issued 2(two) warning letters. Due to adverse entry in the ACR being recorded by the respondent No. 4, the Service Review Board issued the result/report thereby the service of the petitioner was not extended and thereafter, the respondent No. 2 issued an order dated 18.11.2014 informing the petitioner that he should retire from service on the forenoon of 01.06.2015 on completion of 30 years of qualifying service for pension. Being aggrieved by the said order dated 18.11.2014, the petitioner submitted a representation dated 01.12.2014 followed by another representation dated 17.12.2014. In reply to the said representations, the respondent No. 2 issued an order dated 26.12.2014 intimating that the petitioner's service could not be considered for retention due to policy constraints. The petitioner submitted another representation dated 23.01.2015 and in reply thereto, the respondent No. 4 wrote letter dated 07.02.2015 to the petitioner thereby commanding to forward the relevant documents for pension. Being aggrieved by the result/report of the orders dated 31.10.2014 and 18.11.2014, the instant writ petition has been filed by the petitioner. 4. An affidavit-in-opposition has been filed on behalf of the respondents wherein the fact that the petitioner was transferred and posted at 24 Assam Rifles in the month of August, 2012 was not denied but it has been stated that the performance of the petitioner was not upto the mark. It has further been stated that the petitioner left the AR transit camp, Kolkatta on 09-05-2013, although his leave was to commence from 11-05-2013 by forging a leave certificate and that he overstayed his leave by three days from 26-05-2013 to 28-05-2013. The petitioner has tendency to be argumentative and of refusing orders and due to high blood pressure, he was found to be in hypertension. The petitioner has tendency to be argumentative and of refusing orders and due to high blood pressure, he was found to be in hypertension. The review of his service was carried out as per ROI 1/2004 and Rule 48 of CCS (Pension) Rules, 1972 and FR 56(J). 5. It has been submitted by Shri A. Mohendro, the learned counsel appearing for the petitioner that during his long career of service and prior to his being transferred at 24 Assam Rifles, there was no any blemish complain from anyone about the petitioner's performance and moreover, he was honoured with many rewards including the Governor Gold Medal in the year 2012. After his being posted at 24 Assam Rifles, the respondent No. 4 started creating problems because he refused to oblige him in matters relating to purchase of stationary materials and therefore, the respondent No. 4 was adamant to see that the petitioner was penalized on false allegations. In order to teach him a lesson, the respondent No. 4 intentionally made adverse entry in the ACR as poor, on the basis of which the Review Service Board recommended that the petitioner be allowed to retire compulsorily. The petitioner was never communicated with any of his ACRs except for the years, 2012-2013 and therefore, the same could not be relied upon by the authorities in view of the law laid down by the Hon'ble Supreme Court in the case of Dev Dutt v. Union of India, (2008) 8 SCC 725 : ( AIR 2008 SC 2513 ) wherein it has been held that every entry in the ACR must be communicated to the public servant within a reasonable period and non-communication of an entry is arbitrary. This law has been reiterated by the Hon'ble Supreme Court in Sukhdev Singh v. Union of India & Ors., (2013) 9 SCC 566 : ( AIR 2013 SC 2741 ) by holding that the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. Moreover, relying upon the decision rendered by the Hon'ble Supreme Court in S. Ramachandra Raju v. State of Orissa, AIR 1995 SC 111 , it has been submitted by him that before any order of compulsory retirement is issued, the Government ought to consider the entire service records or character rolls or confidential reports and since the Government failed to do so, the impugned orders are bad in law and are liable to be quashed. On the other hand, relying upon the decision rendered by the Hon'ble Supreme Court in State of Gujarat v. Umedbhai M. Patel (2001) 3 SCC 314 : ( AIR 2001 SC 1109 ), Shri S. Samarjit, the learned CGC has submitted that while taking a decision for compulsory retirement, the Government can consider the ACRs which have not been communicated to the public servant. 6. It is not in dispute that prior to his being posted at 24 Assam Rifle, there was no any blemish complain against the petitioner and the petitioner was honoured with many rewards including the Governor Gold Medal in the year, 2012 and moreover, the respondents have not produced any material on record to show that there was no any adverse entry in his ACRs except for the years 2012-2013. The stand of the petitioner is that he was not communicated with any adverse entry in his earlier ACRs. From the report of the Service Review Board as enclosed in the letter dated 31-10-2014 of the Cap, Offig SO-2 (Coord) for DGAR, it is seen that the only ground on which the petitioner was not recommended for retention in service is as per the remark "the JCO is not meeting ACR criteria, hence not recommended for further retention in service" and in other words, the petitioner was not recommended because of adverse entry in the ACRs. But it is not clear from this report as to whether the Service Review Board has considered only the ACR for the years 2012-13 or all the ACRs of previous years as well. It is settled law that the ACRs of consecutive five years of a public servant are to be taken into account by the Government for purpose of consideration for promotion, compulsory retirement etc. Admittedly, only the ACR for the years 2012-13 was communicated to the petitioner and others had not been communicated to him. It is settled law that the ACRs of consecutive five years of a public servant are to be taken into account by the Government for purpose of consideration for promotion, compulsory retirement etc. Admittedly, only the ACR for the years 2012-13 was communicated to the petitioner and others had not been communicated to him. If that be the case, as has been laid down by the Hon'ble Supreme Court in Dev Dutt ( AIR 2008 SC 2513 ) (supra) and Sukhdev Singh cases ( AIR 2013 SC 2741 ) (supra) that non-communication of ACR is arbitrary, this court is of the prima facie view that the ACRs which are not communicated to the petitioner, cannot be made the foundation to deny him the benefit of retention in service while such benefits being granted to others. 7. But in the present case, a technical issue has arisen for the reason that Rule 28 of the Assam Rifles Rules, 2008 provides that a person subject to the Act other than an officer who has been dismissed, removed or compulsorily retired from service, shall have the right to put an appeal against the termination of his service to any authority, higher than the one who has passed the termination order within ninety days of the termination of service. In other words, an alternative remedy has been specifically provided in the relevant rules and moreover, the petitioner has submitted a representation dated 07-12-2014 to the DGAR, Shillong. But on perusal of the said representation, it is seen that it is not in the form of an appeal. In the facts and circumstances of the case, this court is of the view that the end of justice will be made if the petitioner is granted an opportunity to prefer a statutory appeal so that the respondents can take a decision after examining the relevant records. 8. For the reasons stated hereinabove, the instant writ petition is disposed of with the direction that the petitioner shall prefer a statutory appeal before the appropriate authority in terms of Rule 28 with a week from the date of receipt of a copy of this judgment and order and in the event of such an appeal being preferred by the petitioner, the appropriate shall consider it and dispose it of within a month there from by issuing a speaking order. It is open to the petitioner to approach this court again in case he is aggrieved by any order issued by the appropriate authority while disposing of the said appeal.