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2019 DIGILAW 267 (GAU)

Bikram Rana v. Union of India

2019-02-28

N.KOTISWAR SINGH

body2019
ORDER : N. KOTISWAR SINGH, J. 1. Heard Mr. B. Chetri, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC for the respondents. 2. This is the second round of litigation. In this petition, the petitioner is seeking setting aside the order of voluntary discharge and subsequent consequential orders passed. 3. The case of the petitioner is that the petitioner was appointed in the rank of Rifleman/GD vide SL No. G/2701947 on 15.4.2002 in 27th Assam Rifle and when the petitioner was at Kakching, Lamkhai, Manipur Headquarter, the petitioner under duress submitted an application for discharge from service stating that certain personal problems and domestic responsibilities do not allow him to continue in service further. 4. The said application was submitted on 12.08.2011 and on the same day, it was recommended by the Commandant for acceptance and on the same day a Standing Committee was convened to examine and to rule out the possibility that no undue pressure in the unit was exercised over the individual to put up application for discharge from service, and the Standing Committee recommended acceptance of application of discharge. 5. The Standing Committee which was convened on the same day on 12.8.2011, made finding that, "The Standing Committee has found that no undue pressure by any authority within the unit has been exercised over the indl who have applied for discharge from service and that he has done so on their own volition due to his domestic problems etc." Accordingly, the Standing Committee found that no undue pressure by any such authority within the unit has been exerted over the individual who had applied for discharge from service and that he had done so on his own volition due to his domestic problems. The said Standing Committee recommended the application submitted by the petitioner be processed to higher Headquarter for approval. It was also endorsed by the Commandant of the Unit on the same day. The authorities also obtained an undertaking from the petitioner certifying as follows on the same day. "I certify that I fully understand that in the event of my discharge at my own request on extreme Compassionate grounds being sanctioned, I shall not be entitled to any pensionary benefits for my service rendered in the Assam Rifles." Accordingly, thereafter the higher authorities issued the discharge certificate vide order dated 15.09.2011. "I certify that I fully understand that in the event of my discharge at my own request on extreme Compassionate grounds being sanctioned, I shall not be entitled to any pensionary benefits for my service rendered in the Assam Rifles." Accordingly, thereafter the higher authorities issued the discharge certificate vide order dated 15.09.2011. The competent authority issued the discharge certificate, approving discharge from service to be effective from 01.01.2012 vide letter dated 15.09.2011. 6. The petitioner had earlier approached this Court by filing a writ petition challenging the aforesaid discharge order, being WP(C) No. 7056/2013, which was disposed of on 05.08.2015. In the said petition, the petitioner had taken various pleas and raised numerous grounds to challenge the said discharge order. 7. It was stated by the petitioner in the said petition, as stated in the present petition also, as follows, "On 10.04.2011, petitioner received information from his home that his wife was seriously ill. In fact, she had to be admitted in Assam Medical College & Hospital, Dibrugarh on 12.04.2011. Petitioner sought for leave to attend to the medical problem of his wife, but that was declined. Instead, the company Commandant asked him to attend counter insurgency training which he had already undertaken on three previous occasions. When the petitioner again requested for medical leave, the higher authority rebuked him and sent him back to the Unit on 24.04.2011. According to the petitioner, instead going back to the Unit, he proceeded to Dibrugarh on 24.04.2011 to attend to his wife as she was being treated in the Assam Medical College & Hospital as an indoor patient. However, before leaving, he had verbally informed one HL Dogra of the Unit. Petitioner's wife was under treatment in the Assam Medical College & Hospital, Dibrugarh from 12.04.2011 to 28.05.2011 for gynaecological problems. She was discharged from the hospital on 28.05.2011. However, petitioner himself fell sick on 29.05.2011 and had to be admitted in the Assam Medical College & Hospital, Dibrugarh on 30.05.2011. Petitioner remained in the hospital from 30.05.2011 to 06.06.2011 and as per the discharge certificate, he was diagnosed as suffering from cicratic problem. Petitioner was also advised rest. After regaining fitness, petitioner reported to his Unit on 24.07.2011. On rejoining, he submitted his medical certificate as well as that of his wife and related documents. Petitioner remained in the hospital from 30.05.2011 to 06.06.2011 and as per the discharge certificate, he was diagnosed as suffering from cicratic problem. Petitioner was also advised rest. After regaining fitness, petitioner reported to his Unit on 24.07.2011. On rejoining, he submitted his medical certificate as well as that of his wife and related documents. On 08.08.2011, petitioner was asked by the Commanding Officer to appear before him, who alleged that petitioner had quarrelled with Subedar HL Dogra on 16.04.2011 while asking for medical leave. Petitioner has stated that thereafter he was forced to write an application in Hindi that he wanted to voluntarily resign from the service on account of his mother's illness. Because of the threat and coercion, petitioner had to write his resignation on 12.08.2011 as was dictated. Thereafter, the discharge certificate was issued, which is under challenge in the present proceeding. Petitioner submitted a detailed representation dated 9.1.2013 addressed to the Director General of Assam Rifles seeking recall of the discharge order and for allowing him to continue his service. However, petitioner was informed vide communication dated 14.2.2013, issued from the office of the Directorate General Assam Rifles that as regard his service, he was enrolled in the Assam Rifles on 10.4.2002 and discharged from service on 1.1.2012 at his own request. It was stated that the request of the petitioner made in his application dated 12.8.2011 was approved by the Directorate General of Assam Rifles w.e.f. 1.1.2012 and that as per Rule 26 of the Central Civil Services (Pension) Rules, 1972, resignation from service entails forfeiture of past service. Therefore, it was stated that petitioner is not eligible for pensionary benefits. It was also stated that there is no rule/provision to reinstate a person who was discharged from service at his own request. Aggrieved, present writ petition has been filed." 8. The said petition was contested by the respondent authorities by denying the allegations. This Court however, without making any finding on the various issues raised in the said petition, disposed of the same on 05.08.2015 directing the Office of the Director General, as follows: "Taking an overall view of the matter and without commenting upon the rival contentions advanced by the parties, I am of the considered opinion that it would meet the ends of justice, if a similar course of action is adopted in the present case as well. Accordingly, without interfering with the discharge certificate dated 3.12.2011, case is remanded back to the office of the Director General, Assam Rifles for a fresh consideration of the grievance of the petitioner as discussed above. Let the aforesaid exercise be completed within a period of two months from the date of receipt of a certified copy of this order." 9. In terms of the direction of this Court in the said petition, the authorities passed the order dated 05.11.2015, which has been challenged in this petition, by which the plea of the petitioner for recalling the said discharge order was rejected by holding that the petitioner had not submitted application for withdrawal of the discharge application within the permissible time limit of 90 (ninety) days as specified under Rule 26 of CCS Pension Rules, 1972. 10. In this petition, the petitioner has raised similar plea that the said discharge application was submitted by the petitioner on 12.08.2011 under duress under the circumstances as mentioned above. 11. It has been contended that the circumstances in which the petitioner submitted his application for discharge and also the circumstances in which the Standing Committee was constituted and undertaking was obtained from the petitioner on the same day on 12.08.2011, would clearly indicate that the authorities had not applied their mind as to whether the petitioner had submitted the application for discharge voluntarily or under duress. 12. In this regard learned counsel for the petitioner has drawn attention of this Court to a Circular issued by the Director General of CRPF dated 17.05.1990, which called upon all the authorities concerned to ensure that any application for discharge or voluntary retirement are submitted for genuine reasons and voluntarily. It has been further provided in the said Circular dated 17.05.1990 that to ensure that such applications for discharge or voluntary retirement are genuine and for compelling reasons, the authorities concerned should obtain an undertaking from the individual to that effect that he has been explained in detail about the likely hardship which he may face in this uncertain and difficult economic age of his discharge on voluntarily, and such undertaking should be kept on record. Relevant portion of the Circular dated 17.05.1990 is reproduced herein below, "Director Genera, CRPF, CCO Complex, Lodhi Road, New Delhi-3 No. R.XIII-40/90-Admn. Relevant portion of the Circular dated 17.05.1990 is reproduced herein below, "Director Genera, CRPF, CCO Complex, Lodhi Road, New Delhi-3 No. R.XIII-40/90-Admn. II Dated: 17th May 1990 To, All IsCP, CRPF (Including Director, ISA), CRPF All DysGP, CRPF All Commandants Bns/CCs (Including sec.sic pns.) CRPF All Principals, CTCs/RTCs CRPF All COMs Base Hospitals, CRPF The Comdt., SDG, CRPF Sub: Acceptance & withdrawn of Resignation Sir, Instance have come to notice when a number of personal after having proceeded be discharge from service on their own realizing the hardship of life and unemployment by way of making baseless/uncalled for allegation against the authority competent to accept the resignation. 2. In this context, the instructions regarding the procedure to be followed in accepting the resignation and withdrawal of resignation as contained in DRT's O.M. No. 28034/25/87 Estt. (A) dated 11.12.88 (published in CRPF Gazette for the month of may, 1988) should be clearly understood and explained to the men. 3. It is imperative that the authority competent to accept the resignation should therefore, personally explain the growing unemployment problems and consequences of discharge to the persons seeking discharge from service, while it is not in the interest of government to retrain an unwilling Govt. servant in service, a care has to be taken that no one is allowed to proceed on discharge/vol. Retirement without any compelling reasons. As a model employer, the administration must conduct itself with high probity and candour with its employees and should always be careful enough to reasoned to their problems. 4. The authority competent to accept the resignation should therefore, ensure personally that the person seeking discharge vol. Retirement has genuine and compelling reasons. To ensure it the authority concerned should obtain an undertaking from the individuals to the effect that he has been explained in detail about the likely hardships, which he may face in this uncertain and difficult economic age after his discharge/vol. Retirement. Such An undertaking should be kept on record. Yours faithfully Sd/- Deputy Director (Admin.)" 13. In the present case, it has been submitted by the learned counsel for the petitioner that there was no such endeavour on the part of the authorities to take such steps to ensure that discharge application filed by the petitioner was voluntary. 14. Retirement. Such An undertaking should be kept on record. Yours faithfully Sd/- Deputy Director (Admin.)" 13. In the present case, it has been submitted by the learned counsel for the petitioner that there was no such endeavour on the part of the authorities to take such steps to ensure that discharge application filed by the petitioner was voluntary. 14. It has been further submitted by the learned counsel for the petitioner that the petitioner had indeed submitted an application on 26.08.2011 that the earlier application dated 12.08.2011 was not written on his wish but as per the direction of the authorities and accordingly, prayed for withdrawal of the discharge application. 15. Learned CGC for the respondents, however, submitted that all these aspects have been dealt with by this Court in the earlier writ petition and the authorities had duly considered the application of the petitioner as clearly evident in the said order issued on 05.11.2015 that the petitioner had given an undertaking that it was voluntary and as such, the action of the said authorities in accepting the voluntary application for discharge from service does not suffer from any infirmity. It has been further submitted by the learned CGC that in the application subsequently submitted by the petitioner on 9.1.2013, receipt of which also acknowledged by the authorities, nothing is mentioned about the submission of application on 26.8.2011 seeking withdrawal of the application of discharge. Accordingly, learned CGC has submitted that there is no fact or circumstance that calls for any interference by this order. 16. Heard learned counsel for the parties and also perused the materials on record. 17. Learned CGC has also produced the relevant records about the proceedings of the Standing Committee and other proceedings relating to discharge of the petitioner. 18. Before this Court proceeds to deal with this matter, it may be noted that though the petitioner had earlier approached this Court by filing WP(C) 7056/2013, raising various pleas and contentions and the Assam Rifle authorities also had given their justifications and explanation for the same, the Court did not go into the merit of the case as clearly reflected in the effective portion of the order and remanded the matter to the Assam Rifle authority for reconsideration. It was observed as follows. It was observed as follows. "Taking an overall view of the matter and without commenting upon the rival contentions advanced by the parties, I am of the considered opinion that it would meet the ends of justice, if a similar course of action is adopted in the present case as well. Accordingly, without interfering with the discharge certificate dated 03.12.2011, case is remanded back to the office of the Director General Assam Rifles for a fresh consideration of the grievance of the petitioner as discussed above. Let the aforesaid exercise be completed within a period of two months from the date of receipt of a certified copy of this order." Since, the Court in the earlier instance, had not decided the issues raised therein, this Court is of the view that it may be permissible to examine the issues on merit in this present petition. 19. Be that as it may, the main thrust of the argument of the learned counsel for the petitioner is that the application for discharge was not voluntarily submitted but was submitted under duress under the circumstances narrated above. 20. If the discharge application submitted was not voluntarily as contended by the petitioner, and if it is true, such decision of the authority to accept the same may be liable to be interfered with. On the other hand, if the discharge application was submitted voluntarily as contended by the authorities, it does not call for interference by this Court. As to whether an application for discharge which had been submitted by an employee was voluntary or not is a pure question of fact which perhaps would not be appropriate for this Court to decide. However, if there sufficient materials to indicate that such application was not voluntarily submitted, perhaps this Court would be within its jurisdiction to interfere with the same. 21. Accordingly, this Court will proceed to examine whether any such facts or circumstances have been revealed in the case which would indicate that such application for discharge was not voluntarily made. 22. This Court has observed and also it is not in dispute that the petitioner submitted his application for discharge on 12.08.2011. It is order on record that on the same day on 12.08.2011, the authority convened the Standing Committee to consider the application of the petitioner. 22. This Court has observed and also it is not in dispute that the petitioner submitted his application for discharge on 12.08.2011. It is order on record that on the same day on 12.08.2011, the authority convened the Standing Committee to consider the application of the petitioner. It was under same day on 12.08.2011 that the recommendation of the Committee to accept the application of the discharge of the petitioner was accepted by the Commandant. It was also on the same day on 12.08.2011 that the respondent authorities obtained an undertaking certificate from the petitioner as quoted above. 23. Perusal of the undertaking certificate would indicate that the undertaking was only to the effect that the petitioner understands that in the event of his discharge at his own request on extreme compassionate ground being sanctioned, he would not be entitled to any pensionary benefits for the service rendered. This undertaking does not at all deal with the issue as to whether he had given the discharge application voluntarily or not and whether the authorities explained to him to the implications of such discharge application in terms of his income etc. The said undertaking merely refers to the fact that in the event his application is accepted, he will not be entitled to any pensionary benefits. 24. From the above, what transpires is that it was on the same day when the petitioner submitted his application for discharge, the same was acted upon by the authorities. Normally, the authorities cannot be faulted with for acting promptly and expeditiously in any administrative matter but the issue which arises for consideration before this Court is whether the manner in which the authorities proceeded in post haste under the circumstances could be considered to be proper or not. 25. In this regard, a reference has been made by the learned counsel for the petitioner to a Circular issued by the CRPF to ensure that any such application sought for discharge or seeking voluntary retirement is to be considered by the authority to ensure that such application is not submitted under duress but purely on voluntary basis. In this regard, it has been submitted by the learned CGC that the Circular is not applicable to the Assam Rifles but to the CRPF only. 26. In this regard, it has been submitted by the learned CGC that the Circular is not applicable to the Assam Rifles but to the CRPF only. 26. This Court is of the view that is a too technical objection and the Assam Rifle authority ought to apply the same principle while considering such application for voluntary discharge as raised in this petition. This Court is of the view that the standard adopted in other paramilitary forces can also be held to be applied for the reason that it merely lays down certain precautionary measures to be taken by the authorities before accepting any discharge application by ensuring that such application was made voluntarily. The aforesaid circular has been issued for the benefit of the employees. This Court is of the view that there is no reason why similar criteria/principles should not be adopted in the Assam Rifles also, even if the said Circular was issued exclusively for the CRPF personnel and not applicable to the Assam Rifles. This Court is of the view that any procedure adopted by the authority while taking any administrative decision must be fair, reasonable, keeping in mind the mandate of Article 14. Therefore, these precautionary procedures can be read into the existing rules of the Assam Rifles for the Assam Rifles Authority or any authority cannot deny the reasonableness of the same. The main concern in such case is to ensure that any such application filed for discharge was voluntarily submitted. 27. This Court has requisitioned the records and the same have been produced before this Court. 28. Perusal of the said records do not indicate that the petitioner was personally examined by any of the Members of the Standing Committee to ensure that he had given his discharge application voluntarily and that the Committee had given the finding that no undue pressure by any authority has been exercised over the individual who had applied for discharge from service and that he had done on his own wisdom after examining the relevant and concerned persons including the applicant. In absence of any materials or documents on record as to how the Committee had come to such a conclusion, this Court is not able to accept such a conclusion by the Committee that the petitioner had voluntarily applied for discharge. In absence of any materials or documents on record as to how the Committee had come to such a conclusion, this Court is not able to accept such a conclusion by the Committee that the petitioner had voluntarily applied for discharge. There is nothing on record to indicate as mentioned above that the Members of the Committee had interacted with the individual concerned or any other members of the unit. Therefore, if such finding has been arrived merely on the basis of the examination of the application which seems to have been done, in absence of any other material in this regard, this Court would hold that the finding given by the Standing Committee cannot be said to be proper. Non application of mind by the Standing Committee on the particular issue of voluntariness of the petitioner is quite apparent on the face of the records. The undertaking given by the petitioner also has nothing to do with the issue as to whether he had given the application voluntarily as the said undertaking was given only as regards his entitlements of his pensionary benefits. Therefore, this Court is satisfied that there was no attempt by the authorities concerned to examine properly as to whether the application for discharge from service had been voluntarily given by the petitioner or not. 29. In that view of the matter, this Court is of the opinion that all the subsequent actions taken by the authorities would be vitiated for the reason that the initial decision to accept the discharge application of the petitioner itself stands vitiated. It is a settled legal position that if the initial action is not in consonance with law, all subsequent and consequential proceeding would fall through for the reason that illegality strikes at the root of the order. The legal maxim 'sublato fundamento cadit opus", meaning thereby that foundation being removed, structure/wall fells, comes into play. [See State of Punjab Vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 ] 30. In the result for the reasons discussed above, the present petition is allowed. The impugned order dated 05.11.2015 is set aside and the petitioner will be liable to be reinstated in service however, without any benefit of back wages. The petitioner however, will be deemed to be continued in service for the purpose of other service benefits and retiral benefits.