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2020 DIGILAW 11 (MAN)

RFN/GD Arvind Kumar No. 38639 Y v. Union of India

2020-02-25

M.V.MURALIDARAN

body2020
JUDGMENT 1. This writ petition has been filed by the petitioner seeking to quash Battalion Routine Order dated 17.10.2015 and to direct the respondents, particularly, the third respondent to pay the salary of the petitioner from the date/month of withholding i.e., from March 2015 to December 2015. 2. It is the case of the petitioner that he joined Assam Rifles on 11.2.2002 as Rifleman/GD and now posted as 3 Assam Rifles, Sehlon, Chandel District, Manipur. Initially, he was granted Earned Leave for 27 days from 9.2.2015 to 7.3.2015 and during the period of Earned Leave, the petitioner got ill and treated at Central Police Force Hospital, Moradabad and the Doctor advised him for bed rest from 4.3.2015 to 17.3.2015. Again on 18.3.2015, the petitioner was treated at the same Hospital and the Doctor advised him for bed rest from 18.3.2015 to 24.3.2015, as his health condition was not improved. On 28.3.2015, the petitioner reached the transit camp at Dimapur and then he reached his Unit at Sehlon on 1.4.2015 and on the next day, he attended the interview with the Commandant, 3 Assam Rifles, the third respondent herein. However, the third respondent denied the medical report and recorded as unauthorised. He was also threatening for voluntary discharge from service. 3. On 7.4.2015, the petitioner was given 14 days rigorous imprisonment in Unit guard under the impugned order dated 17.10.2015 and he was asked to perform duty by marching on foot at a distance of 18 kms from Battalion Headquarters and he was mentally and physically harassed by handcuffing him as a criminal and paraded around the Unit area. Moreover, the third respondent withheld ten months salary of the petitioner from March 2015 to December 2015 without showing any cause and also without any valid order while the petitioner had been rendering his duties without any interruption till date. 4. On the other hand, it is the say of the respondents that before imposing punishment, the petitioner was given adequate chance in the presence of the witnesses to make a statement or produce a witness, which he denied. Moreover, there is no point raising the issue after so many months of the punishment. It is stated that despite advice, the petitioner was absent for 20 days with effect from 8.3.2015 to 27.3.2015 and reported at Rear location Dimapur on 28.3.2015. Moreover, there is no point raising the issue after so many months of the punishment. It is stated that despite advice, the petitioner was absent for 20 days with effect from 8.3.2015 to 27.3.2015 and reported at Rear location Dimapur on 28.3.2015. On re-joining his duty, the petitioner did not produce any medical documents or during hearing of charge before the Commandant, he was awarded 14 days rigorous imprisonment under Section 26(b) of the Assam Rifles Act, 2006 for an offence of being over staying leave. 5. After completion of 14 days rigorous imprisonment on 20.4.2015, the petitioner was sent back to his Company where he reached on 26.4.2015. It is also stated that the procedure as per Standard Operating Procedure was followed while awarding punishment to him for his offence and the same was duly reviewed by the Headquarters. Therefore, the petitioner has no right to challenge the impugned order, as he has not produced any medical records. After carrying out the interview on 4.1.2016, the petitioner was sanctioned 40 days Earned Leave and was sent on leave on 8.1.2016. 6. As far as, direction to pay the arrears of salary is concerned, it is the say of the respondents that the summary trial documents were forwarded to the Headquarters on 7.5.2015 for review, which were returned with certain observations. The documents were resubmitted to the Headquarters on 27.6.2015 and the same has been received back duly reviewed on 6.10.2015 and order for regularization of leave has been published on 13.11.2015. Accordingly, the monthly pay and allowances of the petitioner started from January 2016. Bill for arrears of pay and allowances for the period from March 2015 to December 2015 for Rs.2,12,129/- was prepared during March 2016 after the receipt of pay slip from the Central Pay Bill Office (Assam Rifles) In the last week of February 2016. Arrear bill was forwarded to the Headquarters DGAR on 9.3.2016 and after scrutiny of arrear bill, an amount of Rs.1,90,282/- was sanctioned and the same has been credited in the salary account of the petitioner on 6.5.2016. Therefore, there is no question directing the respondents to pay the arrears of pay and allowances. 7. This Court considered the submissions made by the learned counsel for the parties and also perused the materials available on record. 8. Therefore, there is no question directing the respondents to pay the arrears of pay and allowances. 7. This Court considered the submissions made by the learned counsel for the parties and also perused the materials available on record. 8. The petitioner was issued with the impugned Battalion Routine Order dated 17.10.2015 accusing that he was overstaying leave without sufficient cause, for which he was awarded punishment of 14 days rigorous imprisonment in the Unit. According to the petitioner, he was granted Earned Leave for 27 days with effect from 9.2.2015 to 7.3.2015 and during the leave period, he was stayed in his home In Uttar Pradesh. Suddenly on 3.3.2015, the petitioner got illness and had taken treatment as inpatient at Central Police Hospital at Moradabad, where the Doctor advised him to take bed rest for two weeks from 04.3.2015 to 17.3.2015. On 18.3.2015, he was asked by the Medical Officer of the said hospital to take bed rest for one week from 18.3.2015 to 24.3.2015, as his health condition was not improved. The health condition of the petitioner was informed to Rifleman Rampal Sharma, who was performing duty of rear i/c Sehlon of B.Coy. Apart from the information given to Rampal Sharma, the petitioner had also wrote application to the third respondent in response of the information given to Rampal Sharma on 14.3.2015. Thus, according to the petitioner, he has given due information to the department through Rampal Sharma, however, by the impugned order, the third respondent imposed punishment of 14 days rigorous imprisonment in the Unit quarter guard on 7.4.2015 by observing that the petitioner was overstaying leave. 9. On a perusal of the record of proceedings before the Commanding Officers under Assam Rifles dated 7.4.2015 shows that the same has been duly served on the petitioner whose signature was also found place in it, however, the petitioner declined to examine his side witnesses or to cross-examine the prosecution witnesses. Ultimately, the record of proceedings, concluded by the Colonel Commandant by passing the order as 'to be tried summarily'. The charge against the petitioner is that at field on 9.2.2015, having been granted leave of absence from 9.2.2015 to 7.3.2015 to proceed on 27 days Earned Leave, failed without sufficient cause, to rejoin at duty station on expiry of the said leave, till he voluntarily rejoined at Transit Camp, Dimapur on 28.3.2015. 10. The charge against the petitioner is that at field on 9.2.2015, having been granted leave of absence from 9.2.2015 to 7.3.2015 to proceed on 27 days Earned Leave, failed without sufficient cause, to rejoin at duty station on expiry of the said leave, till he voluntarily rejoined at Transit Camp, Dimapur on 28.3.2015. 10. According to the petitioner, he fell ill on 4.3.2015 and had taken treatment in Central Police Hospital, Moradabad, Uttar Pradesh, where the Doctor who treated him advised to take bed rest till 24.3.2015 and to show that he was treated at Central Police Hospital, Moradabad, the petitioner has produced medical chits, where from this Court finds that the petitioner had taken treatment at Central Police Hospital, Moradabad for his ailment. Though the respondents denied the said fact, they have failed to establish that the medical reports annexed with the typed set of papers are incorrect. The availing of leave has also been intimated by the petitioner through Ramlal Sharma as well as through the letter to the Commandant, 3 Assam Rifles. Therefore, there is no question of overstaying leave by the petitioner. 11. On a further perusal of the impugned order dated 17.10.2015, this Court finds that the same has been issued without any discussion in respect of the witnesses examined by the prosecution and/or documents marked by them. In the impugned order, it has been simply recorded the punishment. Moreover, nothing on record to show that after giving sufficient opportunity to the petitioner, the proceedings were concluded. Taking advantage of the non-examination of the witnesses on the side of the petitioner and also failed to cross-examine the prosecution side witnesses, the proceedings were ended against the petitioner by imposing punishment. Further, the fact remains that rejoining the duty on 28.3.2015 itself, the petitioner has narrated all these things to the Commandant qua information given to the B.Coy rear i/c. For this, it is the say of the respondents that the B.Coy rear i/c is not the superior of the petitioner and he had no authority of dealing with the extension of leave of any person and the petitioner has not obtained any such prior approval of the leave. 12. It is true that Rifleman Rampal Sharma is not the authority of the petitioner. However, the petitioner requested the said Rampal Sharma to inform his ill-health and leave to the superior of the petitioner. 12. It is true that Rifleman Rampal Sharma is not the authority of the petitioner. However, the petitioner requested the said Rampal Sharma to inform his ill-health and leave to the superior of the petitioner. The only mistake committed by the petitioner is that he has not informed the leave well in advance. On the other hand, he has informed the leave through Rampal Sharma on 14.03.2015. The said fact has not been denied by the respondents. However, it is the say of the respondents that the petitioner should have rather informed about his ill health immediately on the expiry of his leave. 13. Since the proceedings recorded during enquiry shows that after rejoining the duty, the petitioner has narrated all these things before the Commandant and explained about the leave availed by him. Despite listening the words of the petitioner, the respondent officials initiated action against the petitioner by framing charge, which finally ended by awarding punishment of 14 days rigorous imprisonment in the Unit on 17.10.2015. The departmental proceedings started on 07.4.2015, however, the same ended only on 17.10.2015 with long delay and there was no convincing reason given by the respondent why such a delay had happened in concluding the proceedings. Though the issue of delay is not pleaded by the petitioner, the fact remains that he was not paid salary for nearly 10 months. Therefore, from the above, it is clear that in order to harass the petitioner, the impugned punishment came to be imposed, which in my considered view is highly disproportionate. 14. The procedure which was followed while awarding the punishment to the petitioner for his overstaying leave and the same was duly reviewed by the higher Headquarters stated by the respondents is not convincing, as nothing has been produced by the respondents to show that adequate opportunities were given to the petitioner. In the absence of proof, it is to be said that without affording sufficient opportunities to the petitioner, the departmental proceedings was concluded by awarding the impugned punishment. 15. In respect of the direction on the respondents to pay the arrears of pay and allowances for the period from March 2015 to December 2015 is concerned, the subsequent developments after filing of the writ petition is that arrear bill was prepared for Rs.2,12,129/- during March 2016 and the same was forwarded to the Headquarters on 9.3.2016. 15. In respect of the direction on the respondents to pay the arrears of pay and allowances for the period from March 2015 to December 2015 is concerned, the subsequent developments after filing of the writ petition is that arrear bill was prepared for Rs.2,12,129/- during March 2016 and the same was forwarded to the Headquarters on 9.3.2016. After scrutiny, the CPBO (AR) has forwarded the bill for Rs.1,90,282/- and the said amount has been credited in the salary account of the petitioner on 6.5.2016. Therefore, in view of the subsequent developments, there is no need to issue any direction on the respondents to pay the arrears pay and allowances, as the petitioner has not disputed the arrear amounts credited in his account. 16. For the foregoing discussions, the impugned order dated 17.10.2015 is not sustainable in law in respect of imposition of punishment on the petitioner and the same is set aside. The writ petition is allowed to the extent indicated above. No costs.