JUDGMENT : YARENJUNGLA LONGKUMER, J. 1. Heard Mr. I. Imti Longchar, learned counsel for the petitioner. Also heard Mr. Z.N. Ngullie, learned CGC for the respondents. 2. WP(C)/314/2023 and WP(C)/71/2024 have been taken up together and disposed of by this common judgment. 3. In WP(C)/314/2023, the petitioner has prayed for a direction to quash and set aside the impugned Letter No. 3201248/ 32AR/INVALID/Pen/NE/2023/304 dated 29.09.2023 written by the Major, OIC Disability Pension/NE, Record Branch in the Director General Assam Rifles office, Shillong. By this Letter dated 29.09.2023 it was stated that the petitioner is not eligible for invalid pension as he has been dismissed from service. The petitioner has also prayed for release of his pay and allowances from 01.09.2016 as per the 7 th Central Pay Commission with penal interest at 24% per annum. The petitioner has also further prayed for a direction to grant disability pension to him for the disability contracted in service as per the Medical Board proceedings held on 21.03.2016. 4. The learned counsel for the petitioner, Mr. I. Imti Longchar has stated that the petitioner was enrolled in the 32 Assam Rifles on 08.09.2003 with Regimental No. G/3201248H. While he was serving as Rfn/GD, he was diagnosed as HIV positive during Annual Medical Examination and put under “Immune surveillance” from 17.09.2014. The petitioner was referred to the Assam Rifles Composite Hospital (ARCH), Sukhovi but he did not report there and voluntarily reported back to the Unit on 21.07.2015. On 14.12.2015, he got admitted at ARCH, Sukhovi and was Discharged To Home (DTH) on 06.02.2016. Again on 06.03.2016 due to health complications he got admitted to ARCH, Sukhovi and was Discharged To Unit (DTU) on 18.03.2016 to be placed in medical category SHAPE (T-24) E1 for 24 weeks. On 21.03.2016, the Medical Board proceedings were held comprising of three Doctors, who stated that, the petitioner ‘ceased duty’ on 18.03.2016 with ‘principal disability’: “Immune surveillance”. The Medical Board proceeding states that the disability was contracted in service. 5. Learned counsel states that thereafter, by Movement Order dated 25.09.2016, the petitioner was referred to IGAR (S) Hospital from ARCH, Sukhovi for special medical opinion, and on 01.10.2016 he was treated at IGAR (S). Upon return from the IGAR (S) the petitioner could not report back to the Unit and has been undergoing ART treatment/medication at various hospitals including District Hospital Dimapur. Upon return from the IGAR (S) the petitioner could not report back to the Unit and has been undergoing ART treatment/medication at various hospitals including District Hospital Dimapur. The petitioner thereafter submitted an application on 17.08.2023 praying for invalid pension. However, the prayer was rejected stating that he had already been dismissed w.e.f. 17.12.2019 vide impugned Letter dated 29.09.2023. Being aggrieved, the petitioner is before this Court. 6. The learned counsel for the petitioner submits that the respondents are well aware about his sickness and treatment w.e.f. 17.09.2014. It is also submitted that the Medical Board proceedings which was held on 21.03.2016 clearly stated that the petitioner had “Ceased Duty” on 18.03.2016 with principal disability- “Immune surveillance” and he was placed in low medical category SHAPE (T- 24) E1 for 24 weeks w.e.f. 18.03.2016. The opinion of the Medical Board (Part-II) at the Unit Hospital 32 Assam Rifles was that the disability was contracted in service and that it was contracted under circumstances over which he had no control. The instructions given to the petitioner by the President of the Medical Board was that – “You are placed in low medical category SHAPE (T-24) E1 for 24 weeks w.e.f. 18.03.2016 for principal disability. Subject to approval of higher authority. Intervening period up to the date of board to be considered as SHAPE (T-24) E1.” 7. It is the submission of the learned counsel for the petitioner that the petitioner was fit and fine when he joined the Assam Rifles and the disability was contracted while he was in service and for the said disability/sickness, the petitioner was treated in various hospitals of the Assam Rifles, i.e., Unit Hospital 32 Assam Rifles, ARCH, Sukhovi, and IGAR (S) Hospital for special medical opinion and the petitioner is still under medical treatment. That it is also submitted that the meaning of “ceased duty” from 18.03.2016 is that the petitioner has been totally relieved from attending general duty or any other duty. Hence, from 18.03.2016, the petitioner is a total liability rather than an asset to the respondent authorities and therefore, non consideration of the petitioner’s case for disability/invalid pension defies all reason and logic and that the present case is a fit one to pass direction to allow the disability pension to the petitioner. 8. Hence, from 18.03.2016, the petitioner is a total liability rather than an asset to the respondent authorities and therefore, non consideration of the petitioner’s case for disability/invalid pension defies all reason and logic and that the present case is a fit one to pass direction to allow the disability pension to the petitioner. 8. The petitioner has drawn the attention of this Court to the provisions of Section 20 of the Right to Persons with Disabilities Act, 2016 wherein at Clause (4) it is provided that ‘no Government establishment shall dispense with or reduce in rank an employee who acquires a disability during his or her service’. The petitioner submits that on this ground alone the impugned Dismissal Order dated 17.12.2019 is liable to be quashed and the petitioner should be considered for disability pension. To support this contention the learned counsel for the petitioner has relied on the case of Madan Ch. Nath Vs. Union of India and Others, 2019 (4) GLT 802 wherein the Hon’ble Gauhati High Court has held that a person can be granted Disability Pension under the Central Civil Service Extraordinary Pension Rules, 1972, if the disablement is due to injury or disease which is attributable to Government service and if that disability arose during Government service. Petitioner accordingly prays that he may be allowed to avail disability/invalid pension. 9. In WP(C)/71/2024, the petitioner has challenged the Order, A/Dismissal Order No. 32AR/IA/2019/5235 dated 17.12.2019 passed by the Brigadier, Deputy Inspector General, Assam Rifles by which the petitioner was dismissed from service w.e.f. 17.12.2019. Learned counsel for the petitioner in this petition has submitted that since 17.09.2014 the petitioner has been under ART treatment for HIV and he has been under treatment for various HIV related complications - including Viral Hepatitis and Jaundice at Gideon Diagnostic Centre Dimapur, Vini Diagnostic Clinic Dimapur and City Hospital Dimapur, which is continuing till date. Learned counsel for the petitioner also submits that till the receipt of the impugned Office Letter dated 29.09.2023, written by the Major, OIC Disability Pension/NE, Record Branch, Director General Assam Rifles office, Shillong, informing him that he was dismissed from service, he was totally in the dark about his dismissal from service as he did not receive any communication or notice about his dismissal. Only when the petitioner applied for the disability pension, the respondent authorities informed him that he had been dismissed from service w.e.f. 17.12.2019. 10. Learned counsel for the petitioner submits that by the impugned Dismissal Order of 17.12.2019 passed by the Brigadier, Deputy Inspector General, Assam Rifles, the petitioner was purportedly shown to have been dismissed from service w.e.f. 17.12.2019 after a Court of Inquiry was convened by the Commandant 32 Assam Rifles vide Order No. A/1202/CON/2017/1231 dated 24.02.2017 under Section 84 of the Assam Rifles Act, 2006 read with Rule 185 of the Assam Rifles Rules, 2010. And the Court of Inquiry had declared the petitioner to be a deserter w.e.f. 01.10.2016. It is further submitted that the petitioner had no knowledge that he had been dismissed from service after a Court of Inquiry was conducted as the dismissal order dated 17.12.2019 was never served on him. 11. After a lapse of more than five years since the petitioner’s purported dismissal the respondent authorities furnished a copy of the impugned Dismissal Order dated 17.12.2019 to the petitioner’s counsel on 15.01.2024 after WP(C)/314/2023 was filed, without being accompanied by any supporting documents. It is the submission of the learned counsel that the action of the respondent authorities is highly questionable as the impugned Dismissal Order should have been furnished to the petitioner in due time, if at all the Court of Inquiry was conducted. Thus, the respondent authorities have acted without due application of mind and therefore, the impugned Dismissal Order is liable to be quashed. 12. Learned counsel further submits that the 32 Assam Rifles Unit was stationed at Kashiram, Dimapur and the petitioner was in touch with the Unit and kept the Unit informed about his medical treatment. Not only that the other personnel of the 32 Assam Rifles Unit too visited the petitioner at his residence at Darogajan, Dimapur which was about 8.5 Kms away from the Unit. He also submits that the mobile number of the petitioner is with the Unit which the petitioner retains till date. Therefore, on 24.02.2017 when the Court of Inquiry was allegedly convened, the Unit was still stationed at Kashiram and therefore, the respondent authorities could have communicated to the petitioner not only through the phone but could have taken measures to serve notice to him at his residence before conducting the so called Court of Inquiry. 13. Therefore, on 24.02.2017 when the Court of Inquiry was allegedly convened, the Unit was still stationed at Kashiram and therefore, the respondent authorities could have communicated to the petitioner not only through the phone but could have taken measures to serve notice to him at his residence before conducting the so called Court of Inquiry. 13. Learned counsel submits that Section 84 of the Assam Rifles Act, 2006 provides for ‘Inquiry into absence without leave’. And as per the said Section, the Court of Inquiry has to inquire into the absence by summoning witnesses and by taking statement on oath or affirmation administered in the prescribed manner. He also submits that the procedure for Court of Inquiry is provided in Rule 183 of the Assam Rifles Rules, 2010 wherein at Clause 8(i) of the said Rule, it states that, ‘save in the case of a prisoner of war who is still absent, whenever the subject matter of inquiry is the conduct, character or reputation of a particular person such person shall be associated throughout with the inquiry and to be given full opportunity of making any statement or giving any evidence he may wish to make or give, and of cross-examination of any witness whose evidence, in his opinion affects his character or reputation’. 14. Therefore, the learned counsel for the petitioner has contended that as per Rule 183 of the Assam Rifles Act, 2010, no Court of Inquiry can be conducted without the presence of the person concerned. Hence, by not giving the petitioner an opportunity to be heard and to represent himself before the Court of Inquiry, the respondent authorities have violated the principle of audi alteram partem and thus the impugned Dismissal Order is to be treated as illegal and void ab initio. That apart, the petitioner has also not been supplied with any copies of the proceedings of the Court of Inquiry as mandated by Rule 187 of the Assam Rifles Rules, 2010. Learned counsel for the petitioner has submitted that the dismissal of the petitioner has been made without any application of mind and in total violation of the provisions of law and Article 311 (2) of the Constitution of India. 15. Learned counsel for the petitioner has submitted that the dismissal of the petitioner has been made without any application of mind and in total violation of the provisions of law and Article 311 (2) of the Constitution of India. 15. The learned counsel for the petitioner also states that till date he is not in receipt of the Apprehension Roll or the final notice to rejoin service, nor has the same been received by any of his next of kin. The petitioner relies on the case of Shri Om Dutta Sharma Vs. The Union of India and Others in WP (C) No. 138/2018 wherein the Hon’ble High Court of Manipur had observed that non-supply of findings and opinion of the Court of Inquiry to the petitioner is fatal to the case of the respondents in the given facts and circumstances of the case. The competent authority of the Assam Rifles has to provide all the relevant materials on the basis of which the impugned Order imposing penalty was issued. Relying on the aforementioned judgment of Shri Om Dutta Sharma (supra), the petitioner submits that in his case also no notice was served on the petitioner regarding the Court of Inquiry and no materials/documents were also supplied to him. Learned counsel also relies on the case of Padmawati Boro & Another Vs. Union of India and Others, 2019 (4) GLT 831 . Learned counsel submits that in the case of Padmavati Boro (supra) this Hon’ble High Court has held that the decision to proceed against a personnel of the CRPF ex-parte even without ascertaining his whereabouts was devoid of any logic and cannot stand the test of reasonability. 16. In view of the submissions made above and the provisions of law as cited, learned counsel for the petitioner submits that the action of the respondents is not sustainable in facts and in the eye of law and as such the impugned Dismissal Order is liable to be quashed and set aside. 17. Learned CGC, Mr. Z.N. Ngullie appears for the respondents and has made his submissions on the basis of his affidavit-in-opposition filed on behalf of the respondent authorities. 17. Learned CGC, Mr. Z.N. Ngullie appears for the respondents and has made his submissions on the basis of his affidavit-in-opposition filed on behalf of the respondent authorities. The learned CGC has raised a preliminary objection that the petitioner had deserted service w.e.f. 01.10.2016 and has approached this Court after a lapse of more than seven years and the delay of more than seven years has not been properly explained by the petitioner in the writ petition. Hence, the writ petition suffers from delay and laches. As such, the instant writ petition is barred by limitation and is liable to be dismissed on this ground alone. 18. Learned CGC states that after expiry of 30 (thirty) days of petitioner’s unauthorized absence from Government bona fide duty an Apprehension Roll was issued by the 32 Assam Rifles vide Letter dated 20.02.2017 followed by another one dated 11.08.2019 addressed to the Superintendent of Police Mokokchung, O.C Mokokchung P.S and all other concerned authorities to apprehend the petitioner as the petitioner’s permanent address was Mangmetong village under Mokokchung District. A copy of the Apprehension Roll was also forwarded to Smt. Aienla Imchen, wife of the petitioner with a request to advise her husband to rejoin duty at 32 Assam Rifles at the earliest. However, the petitioner was neither apprehended by the Police nor any intimation was received about his whereabouts from the Civil Administration as well as from his wife. Neither the petitioner, nor his wife responded to the Apprehension Roll and the final Letter issued by the respondents. The petitioner or his next of kin also did not inform the Unit Authorities about his whereabouts and ongoing medical treatment. As the petitioner deserted from service and remained absent from service for a long period without any information to the authorities, hence his lien from service was required to be terminated by the Department on expiry of three years from the date of his desertion as per the provisions in Paragraph-197 Clause (b) of the Assam Rifles Regulation, 2016. 19. The respondents have stated that the petitioner was referred to ARCH in September, 2014. However, the petitioner absconded from there and reported to the 32 Assam Rifles only on 21.07.2015, i.e., after 10 (ten) months of absence. 19. The respondents have stated that the petitioner was referred to ARCH in September, 2014. However, the petitioner absconded from there and reported to the 32 Assam Rifles only on 21.07.2015, i.e., after 10 (ten) months of absence. It is also submitted by the learned CGC that the petitioner was again admitted at ARCH, Sukhovi on 14.12.2015 and was discharged from the Hospital with four weeks sick leave and he was again admitted at ARCH, Sukhovi on completion of sick leave and discharged from the Hospital on 18.03.2016 vide Discharge Summary dated 18.03.2016. 20. Learned CGC submits that the report of the Medical Board dated 21.03.2016 which stated that he ‘ceased duty on 18.03.2016’ means that the petitioner was temporarily relieved from his general duty for treatment and further management during the period of treatment only and it does not mean that he was totally relieved from attending general duty or any other duties. It is further submitted that thereafter, the petitioner was detailed for duties as per the prescription for P-3 (T-24) medical category persons in Assam Rifles Order 2/90. Learned CGC submits that disability/invalid pension is only applicable to those who are invalidated out from service. But in the petitioner’s case he had deserted from service and accordingly, after three years of lien he was dismissed from service. Rule 24 of the Central Civil Service Pension Rules, 1972 provides that when a Government servant is removed or dismissed from service, it entails forfeiture of his past service, and therefore, the petitioner being dismissed from service w.e.f. 17.12.2019, the service rendered by him stands forfeited and as such he is not eligible for any pension benefits. 21. Learned CGC further submits that the petitioner absented himself without leave from service on 01.10.2016 and subsequently as per the finding of the duly constituted Court of Inquiry, the petitioner was declared a deserter from service w.e.f. 01.10.2016. The petitioner had an opportunity to rejoin duty after his discharge from City Hospital, however, he intentionally remained absent from duty and has now approached this Court after seven years with flimsy grounds to cover his lapses and to get undue service benefits. The petitioner had an opportunity to rejoin duty after his discharge from City Hospital, however, he intentionally remained absent from duty and has now approached this Court after seven years with flimsy grounds to cover his lapses and to get undue service benefits. It is the case of the respondents that the petitioner was given ample opportunity to rejoin the Unit and before issuing the Order of Dismissal on the basis of the opinion of the Court of Inquiry, an Apprehension Roll was issued to the Superintendent of Police, Mokokchung and all concerned authorities to apprehend the petitioner and a copy of the Apprehension Roll was also forwarded to the wife of the petitioner with a request to direct her husband with a request to direct her husband to rejoin duty at 32 Assam Rifles. However, the petitioner did not reply or respond to the communications made by the respondents and intentionally continued his absence from service. 22. As a result, the Court of Inquiry was conducted and by the Order dated 20.04.2017, the Court of Inquiry opined that the petitioner be declared a deserter w.e.f. 01.10.2016. On the basis of this Order of the Court of Inquiry, the Dismissal Order dated 17.12.2019 was issued. As the petitioner was dismissed from service w.e.f. 17.12.2019 by this Order, being a deserter the service rendered by him stands forfeited and he is not eligible for any pay and allowances or pensionary benefits. In fact, the respondents submit that the petitioner was paid even after his desertion upto September 2017 and he is liable to deposit the overdrawn salary amounting to Rs. 2,27,960/- (Rupees Two lakh twenty seven thousand nine hundred sixty) which was paid to him. Learned CGC appearing for the respondents, therefore, submits that there is no merit in the two writ petitions filed by the petitioner and the petitions are liable to be dismissed. 23. Although the petitioner has approached the Court after about 5 (five) years of the order of dismissal, but in view of the explanation furnished that he received the dismissal order only during the pendency of WP(C)/314/2023, it cannot be said that there is delay in challenging the dismissal order dated 17.12.2019. Having regard to the facts and circumstances, I am of the considered opinion that the writ petition deserves to be entertained on merit. 24. Having regard to the facts and circumstances, I am of the considered opinion that the writ petition deserves to be entertained on merit. 24. This Court has considered the submissions of the opposing counsels and perused the pleadings and materials available before the Court. The rules and regulations covering the service of the petitioner can be found in the Assam Rifles Rules, 2010, the Assam Rifles Act, 2006 and the Assam Rifles Regulation, 2016. Section 84 of the Assam Rifles Act, 2006 provides for inquiry into absence without leave which states that: “84. Inquiry into absence without leave.—(1) When any person subject to this Act has been absent from his duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be assembled and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof and the said deficiency, if any, and the Commandant of the unit to which the person belongs shall make a record thereof in the prescribed manner. (2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act, be deemed to be deserter.” 25. The procedure to be followed by the Court of Inquiry as contemplated in Section 84 of the Assam Rifles Act, 2006 is provided in Rule 183 of the Assam Rifles Rules, 2010. As per Rule 183 of the Assam Rifles Rules of 2010, the Court of Inquiry shall conduct evidence of all witnesses on oath or affirmation and signed by them after the same has been read over and explained to them. The evidence given by witnesses has to be recorded in narrative form unless the Court considers that any question and answers may be recorded as such. The Court may also take into consideration any documents even though they are not formally proved. The evidence given by witnesses has to be recorded in narrative form unless the Court considers that any question and answers may be recorded as such. The Court may also take into consideration any documents even though they are not formally proved. Clause 8(i) of Rule 183 also provides that except in the case of a prisoner of war, who is still absent, whenever the subject matter of inquiry is the conduct, character or reputation of a particular person, such person shall be associated throughout with the inquiry and shall be given full opportunity of making any statement or giving any evidence he may wish to make or give and of cross-examination of any witness whose evidence in his opinion affects his character or reputation. Thereafter, as per Rule 186 of the Assam Rifles Rules, 2010, the proceedings of the court of inquiry shall be submitted by the presiding officer to the officer or authority who ordered the court and such officer or authority on receiving the proceedings may either pass final orders on the proceedings, if he is empowered to do so, or refer them to a superior authority. Rule 187 of the said Rules also provides that a person subject to the Act against whom the court of inquiry has given an opinion shall be entitled to copies of the proceedings of the court of inquiry except the findings and opinions thereon, unless the Director General for reasons recorded by him orders otherwise. 26. This Court has seen that in the affidavit-in-opposition of the respondent authorities, the copies of the Apprehension Roll dated 20.02.2017 and 11.08.2019 have been annexed. These apprehension rolls/notices have been sent to the Superintendent of Police Mokokchung and OC, Mokokchung P.S. A copy of the same was also sent to Smt. Aienla Imchen, next of kin, the wife of the petitioner through the OC, Mokokchung P.S. A closer examination of the Apprehension Rolls/notices shows that the same were sent through the Police Station without indicating whether it is Police Station I or II. Moreover, the Apprehension Rolls were sent by Registered Post and the respondents have not shown any document by which it can be said that the petitioner had received the same. There is no proof of receipt by the petitioner. The respondent authorities thereafter conducted the court of inquiry ex parte. Moreover, the Apprehension Rolls were sent by Registered Post and the respondents have not shown any document by which it can be said that the petitioner had received the same. There is no proof of receipt by the petitioner. The respondent authorities thereafter conducted the court of inquiry ex parte. The petitioner has stated on oath in the writ petition that he was living in Darogajan Dimapur at the relevant time and therefore the Apprehension Roll could not have been served on him at Mokokchung. The police authorities at Mokokchung or the civil administration also could not have apprehended the petitioner since he was not in Mokokchung at that relevant time. The respondents have also not been able to show in the affidavit-in-opposition that the findings of the Court of Inquiry or the statements of witnesses taken during the court of inquiry were served on the petitioner at any point of time. 27. Therefore, this Court is of the view that the Court of Inquiry held on 15.03.2017 and subsequent days was held in violation of the laid down procedure as provided in the Regulations, Rules and Acts as mentioned hereinabove. Most pertinently, the Court of Inquiry was convened without giving the petitioner an opportunity of being heard. The Court of Inquiry has bypassed the legal requirements of holding a proper and valid Enquiry. This Court therefore holds that the court of inquiry held against the petitioner is illegal and in violation of the principles of natural justice. 28. The Hon’ble Apex Court in the landmark case of Tata Cellular Vs. Union of India , (1994) 6 SCC 651 , while expounding on the scope of judicial review in administrative action stated that: “ 77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law. 3. Committed a breach of the rules of natural justice. 4. Reached a decision which no reasonable tribunal would have reached. 5. Abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken….” 29. 4. Reached a decision which no reasonable tribunal would have reached. 5. Abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken….” 29. In view of the discussion and observations made above, and in view of the principle of law laid down by the Supreme Court in the case of Tata Cellular (supra), the impugned Dismissal Order dated 17.12.2019 and the Order of the court of inquiry dated 20.04.2017 are quashed and set aside. The letter dated 29.09.2023 written by the Major, OIC Disability Pension/NE, Record Branch in the Director General Assam Rifles office, Shillong is also set aside. 30. The respondent authorities shall convene another fresh court of inquiry, give due opportunity to the petitioner to participate in the said inquiry and pass necessary orders after giving him an opportunity of being heard following all the procedures as laid down in the Assam Rifles Rules, 2010 and the Assam Rifles Act, 2006. 31. As regards the back wages, the same will be dependent on the outcome of the de novo enquiry. The respondent authorities will also be at liberty to consider the petitioner’s application for disability/invalid pension as the case maybe, as per the relevant Rules and Regulations, since the only reason for rejecting his application was that the petitioner was already dismissed from service. 32. With the above directions, WP(C)/71/2024 and WP(C)/314/2023 stand disposed of.