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2025 DIGILAW 1460 (GAU)

Shezokho Khamo v. Union of India

2025-08-28

DEVASHIS BARUAH

body2025
JUDGMENT AND ORDER : DEVASHIS BARUAH, J. Heard Mr. Limawapang, the learned counsel appearing on behalf of the petitioner and Mr. Yangerwati, the learned CGC appearing on behalf of the respondent Nos. 1, 2 and 3. 2. The petitioner herein has assailed the sentence dated 01.09.2021 whereby the petitioner was dismissed from his service as well as grievance order dated 02.12.2021 whereby the petitioner’s appeal was dismissed. MATERIAL FACTS AS APPARENT FROM THE PLEADINGS 3. The facts as enumerated in the pleadings reveals that the petitioner was appointed to the post of Rifleman (General Duty), 25 Assam Rifles w.e.f. 01.08.2005 and was allotted service No. G/5009135XRfN/GD. The petitioner was relieved from his place of posting on 20.02.2020 with 30 days Earned Leave and was required to report at the Unit Churachanpur, Manipur on 02.04.2020. It is the case of the petitioner that on account of COVID-19 pandemic, he approached the Respondent Authorities requesting them to grant 5 (five) days Earned Leave. The Office nd of the Commandant 22 Assam Rifles vide a leave certificate dated 06.06.2020 granted 5 (five) days Earned Leave w.e.f. 07.06.2020 to 11.06.2020. Admittedly, the petitioner did not join on 12.06.2020, but reported at the quarantine centre, Diphu on 05.10.2020. 4. In the meantime, on 16.07.2020, the Office of the Commandant 25 Assam Rifles convened a Court of inquiry to collect the evidence in respect to the circumstances under which the petitioner failed to rejoin the duty on expiry of his leave and still remained absent without any information/authority. 5. The record reveals that subsequent thereto, a Court of Inquiry assembled on 30.09.2020 in respect to collection of evidence relating to circumstances under which the petitioner proceeded on 5 (five) days Earned Leave w.e.f. 07.06.2020 to 11.06.2020 and failed to rejoin on expiry of the said leave and still absented without any information/authority. 6. The said Court of Inquiry subsequently sat again on 04.01.2021 and recorded the evidence. 7. On 16.08.2021, a Charge Sheet was forwarded to the petitioner which was duly received by the petitioner on 16.08.2021 itself. The charge which was leveled in the said Charge Sheet upon the petitioner was violation of Section 26(b) of the ASSAM RIFLES ACT , 2006 (for short “the Act of 2006”) alleging inter alia that the petitioner without sufficient cause overstayed the leave granted to him and there was unauthorized absence of 116 days. The charge which was leveled in the said Charge Sheet upon the petitioner was violation of Section 26(b) of the ASSAM RIFLES ACT , 2006 (for short “the Act of 2006”) alleging inter alia that the petitioner without sufficient cause overstayed the leave granted to him and there was unauthorized absence of 116 days. At this stage, it is very vital to take note of that immediately after the Charge Sheet dated 16.08.2021 was furnished to the petitioner, he was informed vide a communication dated 17.08.2021 that he would be tried by Summary Assam Rifles Court under the Act of 2006 in respect to the offence committed under Section 26(b) of the Act of 2006. The petitioner was also informed that the Trial would commence and he was asked to intimate the unit by 1000 hrs. on 20.08.2021, as to whether, he would depute any person to assist him. This aspect is very vital taking into account the submissions so made by the learned counsel for the petitioner as would be apparent in the subsequent stages of the instant judgment. 8. In the proceedings before the Summary Assam Rifles Court, the charge was read out to the petitioner during the process of arraignment. The petitioner pleaded guilty. It is further seen from the records of the proceedings which are collectively enclosed as Annexure-P to the writ petition that the petitioner was granted various opportunities. The petitioner not only pleaded guilty, but also did neither cross-examine the witnesses nor adduced any evidence in his support. The Summary Assam Rifles Court convicted the petitioner of the offence under Section 26(b) of the Act of 2006 and a sentence was passed on 01.09.2021 that the petitioner be dismissed from service. 9. The petitioner was informed vide another communication dated 01.09.2021 (Annexure-S to the writ petition) that he can submit a petition to the Central Government, Director General, Assam Rifles or any officer superior in command to the officer who held the Summary Assam Rifles Court against the sentence imposed upon him by the Summary Assam Rifles Court. 10. The petitioner thereupon submitted a petition to the Inspector General, Assam Rifles on 15.09.2021 which however was rejected vide an order dated 02.12.2021 assigning reasons that the petitioner was a perpetual defaulter and was awarded punishments on various occasions. Additionally, the petitioner was given ample opportunity to defend himself. 10. The petitioner thereupon submitted a petition to the Inspector General, Assam Rifles on 15.09.2021 which however was rejected vide an order dated 02.12.2021 assigning reasons that the petitioner was a perpetual defaulter and was awarded punishments on various occasions. Additionally, the petitioner was given ample opportunity to defend himself. It is also appropriate herein to mention that the grievance order dated 02.12.2021 was not furnished to the petitioner till 16.08.2024. It is under such circumstances, the petitioner was compelled to submit a representation on 22.05.2024 to the Law Officer, Headquarters, Inspector General Assam Rifles (N) enquiring as regards the delay in disposal of the appeal so submitted by the petitioner on 15.09.2021. It is under such circumstances that the Grievance Order dated 02.12.2021 was served upon the petitioner in the month of August, 2024. It is under such circumstances, the present writ petition was filed. 11. The records reveal that pursuant to the filing of the instant writ petition, this Court had issued notice on 12.12.2024. 12. The respondent Nos. 1, 2 and 3 have filed an affidavit-in- opposition wherein at paragraph Nos. 3 and 4 details were given as regards the unauthorized absence of the petitioner. Further to that, the respondents have also stated that the petitioner was given due opportunity in the Summary Assam Rifles Court and in spite of due opportunity, the petitioner neither availed those opportunities nor cross-examined the prosecution witnesses. On the other hand, the petitioner pleaded guilty. It was further stated that the petitioner was a habitual defaulter and overstayed his leave willfully as would appear from the details as given in the Grievance Order dated 02.12.2021. It was further stated that the punishment so meted out to the petitioner was in terms with Section 57 (1)(c) of the Act of 2006 which was permissible as per the provisions of the Act of 2006. Reference was also made to Section 96 of the Act of 2006 whereby the Summary Assam Rifles Court has the jurisdiction to pass a sentence of dismissal from service. CONTENTIONS OF THE PARTIES 13. Mr. Reference was also made to Section 96 of the Act of 2006 whereby the Summary Assam Rifles Court has the jurisdiction to pass a sentence of dismissal from service. CONTENTIONS OF THE PARTIES 13. Mr. Limawapang, the learned counsel appearing on behalf of the petitioner submitted that Section 11 of the Act of 2006 empowers an Officer not below the rank of the Deputy Inspector General to dismiss or remove from service any person under his command other than an officer or sub-ordinate officer of such rank or ranks as may be prescribed. The learned counsel for the petitioner therefore submitted that the Commandant could not have dismissed the petitioner from service in view of the stipulations contained in Section 11 of the Act of 2006. In that regard, the learned counsel referred to the judgment of the learned Meghalaya High Court in the case of No. G/3900550, RFN/GD Govind Singh Bathyal Vs. Union of India & Others reported in 2014 (3) GLT (ML) 228 and submitted that the similar issue was decided following another judgment of a Coordinate Bench of this Court which was confirmed and approved by not only the learned Division Bench of this Court, but also the Supreme Court. Reference in that regard was placed upon paragraph Nos. 6 to 9 of the said judgment. The learned counsel further referred to another judgment and order passed by the learned Coordinate Bench of this Court dated 29.07.2015 in the case of Shri Moalong, No. G/144503A,Rfn/GD Vs. Union of India & Others (WPC No. 3(K)/2015) wherein a similar issue has been decided. 14. Per contra, Mr. Yangerwati, the learned CGC submitted that this is not a case of disciplinary proceedings. This is a case where on the basis of an offence committed by the petitioner under Section 26(b) of the Act of 2006, a Summary Assam Rifles Court was convened and the petitioner having been found guilty was sentenced in terms with Section 57 (1)(c) of the Act of 2006. He further submitted that the said punishment so imposed by the Summary Assam Rifles Court even do not require any confirmation and has to be carried out forthwith in terms with Section 136(1) of the Act of 2006. Distinguishing the judgments referred to by the learned counsel for the petitioner, Mr. He further submitted that the said punishment so imposed by the Summary Assam Rifles Court even do not require any confirmation and has to be carried out forthwith in terms with Section 136(1) of the Act of 2006. Distinguishing the judgments referred to by the learned counsel for the petitioner, Mr. Yangerwati, the learned CGC submitted that in those judgments, the learned Coordinate Bench did not take into consideration Section 57 of the Act of 2006 as well as the power of the Summary Assam Rifles Court to punish the accused and as such, the said judgments are not applicable to the facts of the instant case. ANALYSIS AND DETERMINATION 15. From the facts as above narrated, it is apparently clear that the petitioner had overstayed his leave granted to him inasmuch as the petitioner ought to have joined his service on 12.06.2020, but he joined only on 05.10.2020. A perusal of Annexure-L to the writ petition reveals that the petitioner was Charge Sheeted in terms with Section 26(b) of the Act of 2006. It is very pertinent to take note of that vide Annexure-M to the writ petition, the petitioner was duly informed that the offence against which the petitioner has been Charge Sheeted and would be tried by the Summary Assam Rifles Court, meaning thereby, that the petitioner would be tried for the offence committed under Section 26(b) of the Act of 2006 which is completely different from disciplinary proceedings. 16. The records of the Summary Assam Rifles Court have been enclosed as Annexure-P to the writ petition. A perusal of the said records would show that the petitioner was duly afforded adequate opportunity to defend himself. The petitioner neither adduced any evidence nor cross-examined the prosecution witnesses. On the other hand, at the time of arraignment, the petitioner had pleaded guilty. Under such circumstances, it cannot be termed that there was any infraction to the procedure by the Summary Assam Rifles Court. 17. The petitioner thereupon was found guilty of the offence committed by him under Section 26(b) of the Act of 2006. A conjoint reading of Section 57 read with Section 96 of the Act of 2006 would show that the Summary Assam Rifles Court has the jurisdiction to inflict punishment for dismissal from service. 17. The petitioner thereupon was found guilty of the offence committed by him under Section 26(b) of the Act of 2006. A conjoint reading of Section 57 read with Section 96 of the Act of 2006 would show that the Summary Assam Rifles Court has the jurisdiction to inflict punishment for dismissal from service. At this stage, this Court further finds it relevant to take note of that the petition which was submitted by the petitioner on 15.09.2021 was disposed of by the Grievance Order dated 02.12.2021 whereby the Authority deciding the petition further justified that the infliction of punishment under Section 57 (1)(c) of the Act of 2006 was justified as the petitioner was a perpetual defaulter. 18. The above materials on record, in the opinion of this Court, do not justify any interference, taking into account that the Respondent Authorities have followed the mandate of the Act of 2006 and there seems to be no infraction to the procedure which was required to be followed. 19. This Court also finds it relevant to observe that the petitioner is employed in a disciplined service and defaults as have been committed on a habitual basis does not inspire this Court to exercise its jurisdiction under Article 226 of the Constitution of India. 20. This Court before parting with the record finds it relevant to observe that the judgments referred to by the learned counsel appearing on behalf of the petitioner are judgments pertaining to disciplinary proceedings and have no relevance in respect to inflicting punishment by the Summary Assam Rifles Court under Section 57 of the Act of 2006 and as such, the said judgments with due respect would not be applicable to the facts of the instant case. 21. At the conclusion of the dictation of the present judgment in the open Court, Mr. Limawapang, the learned counsel appearing on behalf of the petitioner submitted that the petitioner may be given an additional opportunity to submit a petition on the proportionality of the punishment thereby drawing reference to Section 139(2) of the Act of 2006. The learned counsel submitted that the punishment appears to be disproportionate to the charge leveled, more so, as the unauthorized leave was during the COVID-19 pandemic. 22. The learned counsel submitted that the punishment appears to be disproportionate to the charge leveled, more so, as the unauthorized leave was during the COVID-19 pandemic. 22. This Court had given an anxious consideration to the said submission and had also perused Section 139(2) of the Act of 2006 which permits the Competent Authority to look into the aspect of justness of the punishment. Accordingly, without interfering on merits, this Court grants liberty to the petitioner to file appropriate applications and the Competent Authority while considering the said application shall decide the same without being influenced by the observations made in the instant judgment. 23. This Court further taking into consideration that the petitioner had been dismissed from service observes and directs that upon filing of the application by the petitioner under Section 139(2) of the Act of 2006, the Competent Authority of the respondents shall consider the same within 3 (three) months and duly intimate the petitioner about the decision. 24. With the above, the instant writ petition stands disposed of.