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2019 DIGILAW 42 (HP)

Rajesh Kumar v. Union Of India

2019-01-04

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. Petitioner was appointed as a Rifleman in Assam Rifles on 6th July, 1992. A Show Cause Notice dated 19th February, 2005 (Annexure P-1) was served upon the petitioner informing him that till date he had incurred the following red ink entries:- Ser Offence Date of offence Statement of offence and Army Act Punishment awarded 1. Intoxication 19 Feb 2000 AA Sec 48 (Intoxication) 21 days RI on 08 May 2000 2. Intoxication 14 Jun 2003 AA Sec 48 (Intoxication) 07 days RI on 19 Aug 2003 3. 1st Charge An act prejudicial to good order and military discipline. 2nd charge Intoxication 04 Jul 2004 AA Sec 63 (Discp) and AA Sec 48 (Intoxication) 28 days RI on 09 Jul 2004. 4. Intoxication 22 Dec 2004 AA Sec 48 (Intoxication) 14 days RI on 17 Feb 2005 2. It was mentioned in the Notice that inspite of having been advised many times to improve his conduct, petitioner had not shown any change for the better. He had thus become an incorrigible offender with confirmed bad character. It was also mentioned in the Notice that it had become essential to initiate action against him in terms of Section4(a) of Assam Rifles Act, 1941 read with ROI 4/99 and para 24 of Chapter VIII of Assam Rifles Manual. Petitioner was called upon to submit a rely to the show cause notice as to why proposed action be not initiated against him within 30 days. 3. As per the petitioner, even before he could submit his reply to the show cause notice, respondents discharged him from service, vide decision dated 3.3.2005 (Annexure P-2) without even waiting for 30 days time period. Contents of impugned decision dated 3.3.2005 are quoted hereinbelow:- “OFFICE OF THE COMMANDANT: 37 ASSAM RIFLES, C/O 99 APO ORDER II.11011/3700423/2005/492 Dated 03 Mar 2005 1. WHEREAS it is considered that the conduct of No G/3700423H Rank Rfn/GD Name Rajesh Kumar 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/3700423H Rank Rfn/GD Name Rajesh kumar was afforded an opportunity to show cause against the proposed action vide AR letter II. 1101/A-Discp/2005/400 dt. 19 Feb 2005. 3. 2. AND WHEREAS No G/3700423H Rank Rfn/GD Name Rajesh kumar was afforded an opportunity to show cause against the proposed action vide AR letter II. 1101/A-Discp/2005/400 dt. 19 Feb 2005. 3. AND WHEREAS, No. G/3700423H Rank Rfn/GD Name Rajesh Kumar has submitted his reply vide letter No Nil and dated 19 Feb 2005. 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/3700423H Rank Rfn/GD Name Rajesh Kumar from the Assam Rifles being incorrigible offender soldier with effect from 04 Mar 2005 (FN/AN) No. G/3700423H Rank Rfn/GD Name Rajesh Kumar is entitled to get pension and gratuity as admissible under Rules.” Sd/- (Sanjay Kapur) Col Comdt. 37 Assam Rifles” 4. As per petitioner he had not filed any reply and as he was already undergoing imprisonment on 19.2.2005, for alleged offences of intoxication, he was asked to sign some blank papers which he did so. He was thus discharged from service without any inquiry or opportunity of being heard, which act of the respondent was in violation of the principles of natural justice. Further as per the petitioner as he had already been punished for the red entries entered against him, for the same offence, he could not have been discharged as this amounted to double jeopardy. 5. Feeling aggrieved he has filed this writ petition, inter alia, praying for the quashing of order dated 3.3.2005, Annexure P-2. 6. During the pendency of this writ petition vide order dated 18.3.2013, this Court had directed respondent No.2 to consider as to whether any penalty, other than major penalty of discharge/dismissal/removal, can be imposed upon the petitioner taking into consideration the alleged misconduct, within a period of four weeks. 7. Pursuant thereto, respondent No.2 passed a speaking order dated 13.4.2013 (Annexure P6) stating therein that no penalty other than that of discharge, could be imposed upon the petitioner being incorrigible offender having incurred four red ink entries. 7. Pursuant thereto, respondent No.2 passed a speaking order dated 13.4.2013 (Annexure P6) stating therein that no penalty other than that of discharge, could be imposed upon the petitioner being incorrigible offender having incurred four red ink entries. It was further mentioned in the order that to maintain discipline in the Force and keeping in view of the nature of gravity of the offences and past blemished record of the individual, the sentence awarded by the Commandant 37 Assam Rifles was just and legal. This order is also subsequently assailed in this petition by the petitioner. 8. Learned counsel for the petitioner has argued that his discharge from the service is contrary to the provisions contained in the relevant Rules. As per him, punishment could not have been awarded to the petitioner without holding of a formal inquiry or trial. 9. I have heard learned counsel for the parties at a considerable length and also gone through the record of the case. 10. Show cause notice dated 19.2.2005 was issued to the petitioner on the ground that on account of his misconduct it has become essential to take action under Section 4(a) of Assam Rifles Act, 1941 read with ROI 4/99 and para 24 of Chapter VIII of Assam Rifles Manual. The order of discharge against the petitioner dated 3.3.2005 (Annexure P-2) was passed by the authority concerned in exercise of powers under Section 4(a) read with Para 24, Chapter VIII of AR Manual and Para 5 of ROI 1/2004. 11. The primary contention of the petitioner is that the impugned order could not have been passed without there being any inquiry held by the respondent into the show cause notice which was issued to him. 12. In my considered view, there is no merit in the said contention of the petitioner. Here is a case where the petitioner was found to be habitual offender by the authority. He was given repeated red entries to which admittedly, no objections were filed by the petitioner. Thereafter, taking into consideration the totality of the act and conduct of the petitioner, the impugned show cause notice was issued to him. Here is a case where the petitioner was found to be habitual offender by the authority. He was given repeated red entries to which admittedly, no objections were filed by the petitioner. Thereafter, taking into consideration the totality of the act and conduct of the petitioner, the impugned show cause notice was issued to him. The argument of the petitioner that his discharge on same grounds on which he had earlier been punished amounts to double jeopardy also has no force because when the petitioner despite being given red entries did not mend his ways, the authority was left with no option but to issue a show cause and thereafter discharge him from the service. In the peculiar facts of this case, no inquiry was required because the genesis of the show cause notice, already stood admitted by the petitioner as he had not agitated the red entries entered against him. Besides this, it is not correct that the order of discharge was passed without affording any opportunity to the petitioner. Record demonstrates that petitioner did submit a reply to the show cause, which is appended with the reply filed by the respondents to the petitioner as Annexure R-7. The allegations made in the show cause, were not denied by the petitioner in the said reply. The contention of the petitioner that this reply was not filed by him, but probably authorities took benefit of signatures obtained from him on blank papers, is not substantiated by any cogent material on record. 13. Be that as it may, it is a matter of record that pursuant to the order passed by this Court on 18.3.2013, a speaking order stands passed by the respondent-Authority dated 13th April, 2013, whereby it has again both justified and reiterated the order of dismissal of service passed against the petitioner. Perusal of the same demonstrates that it is a self speaking order. Judgment passed by Meghalaya High Court in W.P. (C) No. 17 of 2013 decided on 22.11.2013 in Sanjay Bhattacharjee Vs. The Union of India and others which has been relied upon by the petitioner has no applicability in the facts of the case because therein the High Court of Meghalaya High Court was interpreting the provisions of Assam Rifles Act, 2006, whereas in the present case action was initiated against the petitioner under 1941 Act. 14. Yet, there is another circumstance against the petitioner. 14. Yet, there is another circumstance against the petitioner. The impugned action was taken against the petitioner in the year 2005. He filed the writ petition before this Court assailing order dated 3.3.2005 after almost five years. There is no explanation given in the petition as to what took the petitioner five yeas to assail order dated 3.3.2005. As far as the contention of the learned counsel for the petitioner with regard to the interference by the Court qua quantum of punishment is concerned, in my considered view, taking into consideration the fact that the petitioner belonged to a disciplined Force and the action stands taken against him by the respondent authorities in view of his incorrigible past conduct, this is not a fit case wherein this Court in exercise of its extraordinary jurisdiction can pass any such order. Accordingly, as this Court does not find any merit in the present writ petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of. However, it shall be open to the petitioner to approach the authorities afresh praying for reconsideration qua punishment imposed upon him and on receipt of any such representation from the petitioner, the respondent authority shall be at liberty to pass appropriate orders upon the same, in accordance with law, uninfluenced by earlier decision taken by it on the issue or any observation made by this Court in this order, in the interest of justice.