Ex.RFN/Safai Mukesh Kumar Balmiki vs Union Of India

1) The brief facts of the case is that the petitioner was enrolled in the Assam Rifles as Rfn (Safai) on 21st November, 1997. In the course of his service the petitioner had been awarded five red ink entries for being an incorrigible offender and also on acts which were prejudicial to good orders and discipline of the force.

2) The petitioner on being given five red ink entries thereafter was given a show cause notice as to why action should not be taken against him and after said show cause was filed and considered by the respondents was finally discharged by order dated 3rd December, 2015. As such he is before this Court by way of the instant writ petition assailing the said order of discharge.

3) Mr. S.D. Upadhaya, learned counsel for the petitioner submits that the discharge order is bad in law for the reasons that; firstly five red ink entries do not make it mandatory for an order of discharge to be passed. He further submits that he was not given an opportunity to defend himself, and contends that the discharge order was not in accordance with and in violation of Rule 25 of the Assam Rifles Rules. He further submits that the discharge is by a non-speaking order and that the show cause reply was not considered in a manner in line with how a proper disciplinary proceeding is to be conducted. The learned counsel to support his submissions has placed reliance on the case of Veerendra Kumar Dubey vs. Chief of Army Staff & Ors. reported in (2016) 2 SCC 627 which he submits is distinguishable from the judgment in the case of Union of India & Ors. vs. Balwant Singh reported in (2015) 14 SCC 389 which deals with such matters of four red ink entries.

4) Mr. K. Paul, learned CGC for the respondents submits that due procedure which culminated in the discharge of the petitioner from service has been followed and there has been no violation or infraction of the Act and Rules, or are the proceedings vitiated in any manner. He also submits that after five red ink entries, the petitioner was given adequate opportunity and a show cause notice was given to which the petitioner had replied and the same was considered. The learned CGC draws the Court's attention to Para-10 of the writ petition whereby the writ petitioner himself has stated that show cause notice was received and reply made thereto and that the only grievance projected therein is that Rule 25 of the Assam Rifles Rules was not adhered to. He further submits that the instant case is squarely covered by the judgment of this Court dated 02.05.2019 in WP(C) No. 279 of 2017 in the case of Jasom Wangsa vs. Union of India.

5) Mr. K. Paul, learned CGC further submits that the judgment placed by the petitioner will have no relevance in the instant case, inasmuch as, the case so cited deals with the situation where the petitioner therein after being given four red ink entries was not given opportunity thereafter to urge as to why penalty should not be inflicted, whereas in the present case petitioner had been afforded adequate opportunity by way of a show cause notice being given to him. In conclusion, he submits that there have been no procedural lapses and the proceedings are not vitiated in any manner, and that the writ petition being bereft of any merit is liable to be dismissed.

6) I have heard learned counsel for the parties at length, considered the submissions and also examined the material on records.

7) The only point that arises for consideration in the instant case is whether the proceedings have been vitiated for non adherence to procedural safeguards as established by law as provided in the Assam Rifles Act and Rules. It is not disputed that the petitioner for certain offences had already been awarded five red ink entries and also had been given punishment commensurate to the offences committed. Another undisputed fact, is that, in the pleadings itself at Para-10, of the writ petition, the writ petitioner has stated that he was given a show cause notice which shows that he was afforded opportunity of representing against the proposed punishment. The petitioner had also filed reply to the show cause notice, however it is noted that a copy of the reply to show cause has not been annexed in the writ petition, or in the affidavit to enable this Court to examine the same and to understand the grounds which have been taken by the writ petitioner. On the question with regard to violation of Rule 25 as argued by the petitioner, Rule 25 of the Assam Rifles Rules for easy reference is quoted herein below:-

"25. Termination of service of enrolled persons on grounds of unsuitability.- (1) Where a Commandant is satisfied that an enrolled person is unsuitable to be retain in the service, the enrolled person shall be -

a) so informed;

b) furnished with the particulars of all matters adverse to him; and

c) call upon to urge any reasons he may wish to put forward in favour of his retention in the service:

Provided that clauses (a), (b) and (c) shall not apply, if the Commandant is satisfied that for reasons to be recorded in writing, it is not expedient or reasonably practicable to comply with the provisions thereof:

Provided further that the Commandant may not furnish to the enrolled person any matter adverse to him, if in his opinion, it is not in the interest of the security of the State to do so.

(2) After considering the explanation, if any, the Commandant, may call upon the enrolled person to retire or resign and on his refusing to do so, the enrolled person may be compulsorily retired or discharged from the service."

8) A perusal of the Rule 25 would reflect that three conditions are prescribed therein for the process of termination of service of an enrolled person. Firstly, the enrolled person is to be informed, secondly he is to be furnished with all particulars of all matters adverse to him and lastly he is to be called upon to urge any reasons as he may wish to put forward in favour of his retention in the service. On examination of the material on records and the pleadings of the writ petitioner, there is nothing to show that the requirements as set forth under Rule 25 have not been complied with. The petitioner was well aware as to all the particulars adverse to him, as show cause notice had been given, his reply was also filed, was considered, rejected, and the discharge order dated 3rd December, 2015 was passed. The judgment so relied upon by learned counsel for the petitioner Veerendra Kumar Dubey vs. Chief of Army Staff & Ors. (supra) has no relevance in the instant case as the petitioner was afforded adequate opportunity and there has been no deviation from procedure as alleged.

9) For the foregoing reasons there is no merit in the instant petition and the same is accordingly dismissed.