Umed Singh Tanwar vs Union Of India & Ors

In this petition filed under Article 226 of the Constitution of India, challenge has been made to the order dated 16.04.2018 discharging the petitioner from service being incorrigible offender effective from 30.04.2018.

Briefly, the facts may be noticed. The petitioner was enrolled with Assam Rifles as Rect (GD) on 05.04.2002 and after completing the training he was inducted in Assam Rifles as Rifleman (GD) and attached with 42 A.R. Petitioner asserts that he had completed 15 years 7 months of service as Rifleman and another 5 years which would entitle him to claim full pension as per CCS rules. Further, during the tenure of his service of 15 years 7 months, there were 4 red ink entries in his service dossier, and he was adequately punished for each offence without following due process of law. The offences committed by the petitioner are not serious in nature. The first offence committed related to overstaying 13 days of his leave for which he gave a valid reason but was punished with imprisonment, whereas, the rest of the offences are for consuming alcohol or intoxication. The punishment awarded to the petitioner for the alleged intoxication was without any report from the doctor therefore, the said punishment was not plausible and needs to be expunged from his service record.

According to the petitioner, the respondent authorities had issued the impugned show cause notice to him, wherein, no proceedings of the said punishment was specified and in absence thereof, the punishment awarded to him was liable to be quashed and set aside.

The petitioner asserts that the alleged offences for which he was punished occurred at the interval period of more than two years between each other for which he was punished with rigorous imprisonment for the maximum of 28 days and also imposing a fine for 14 days. Further, the petitioner was shocked to receive a show cause notice dated 16.01.2018 issued by the Brigadier Commander directing him to show cause as to why action should not be taken to discharge him from service in terms of Section 11(1)/(2) of the Assam Rifles Act. Immediately on receiving the show cause notice, he filed his reply vide letter dated 27.01.2018 requesting the Commandant not to discharge him from service and let him serve for full 20 years so as to enable him to obtain full pension for the wellbeing of his 12 years old daughter.

It is stated by the petitioner that apart from the show cause notice, there was no personal hearing, but, he later came to know through reliable source that the respondents are planning to discharge him from service. The findings of the respondent authorities that he had become a habitual offender were capricious and whimsical. It was contended that the impugned show cause notice was issued by the authority who was not the competent authority to issue the same which is in clear violation of the Assam Rifles Act of 2006. It was further urged by the petitioner that he was serving under Assam Rifles and is governed by the Assam Rifles Act and Rules but the punishment imposed upon him was under the Army Act which is not tenable and same is liable to be set aside and quashed.

The petitioner had earlier filed a writ petition being WP (C) No.19 of 2018 challenging the show cause notice issued by the respondents on 16.01.2018. This Court did not interfere into the show cause notice as it was not the final order but while disposing of the said writ petition directed the petitioner to challenge the final order as and when passed by the respondent authorities. It is the case of the petitioner that the show cause notice and the impugned order issued by the respondents was in violation of Article 20 (2) of the Constitution as well as the provisions of Assam Rifles Act and Rules. Hence, the present petition praying for quashing and setting aside the impugned order dated 16.04.2018.

The respondents have filed their affidavit-in-opposition wherein, it has been stated that the petitioner was found to be an incorrigible offender as he had incurred four red ink entries in his service dossier of 16 years and 25 days. Retention of the petitioner in service was felt detrimental to the discipline of other soldiers of the force as he was a habitual offender and his further retention in service would have adversely affected the discipline of other soldiers. The respondents in order to afford an opportunity to show improvement in his service conduct and perform his duties in a disciplined way, had issued a warning letter after he incurred third red ink entry vide letter dated 28.09.2016 wherein he was categorically warned to improve his personal conduct and discipline failing which administrative action was to be taken to discharge him from service as per the relevant rules. Despite having been advised several times verbally and in writing to improve his conduct, the petitioner did not show any improvement but incurred fourth red ink entry on 14.10.2017 for the offences of intoxication. The petitioner was placed Low Medical Category S-3 (Temporary 24) by the specialist as it was the case of Alcohol Dependence Syndrome (ADS). The medical authorities had advised him to refrain from consuming alcohol for his own betterment but he did not pay any heed and was heavily drunk while on duty on 28.09.2017. On having incurred fourth red ink entry, the petitioner was identified to be an incorrigible offender not likely to improve in near future. Accordingly, a show cause notice was issued to the petitioner by the Deputy Inspector General, Headquarter 27 Assam Rifles vide letter No.12095/A/18/1264 dated 16.01.2018 giving him 15 days time to send his reply.

It has further been averred that in the show cause notice dated 16.01.2018, it had been specifically mentioned that the petitioner had become an incorrigible offender and therefore in view thereof, it had become essential to initiate action against him in terms of Section 11(1)/(2) of the Assam Rifles Act, 2006. The petitioner had submitted his reply on 27.01.2018 (Annexure-II with the writ petition) wherein, no defence was tendered by him except to plead mercy to retain him in service till he completed 20 years of service so as to enable him to earn full pension as he had a 12 years old daughter to look after.

The pleaded case of the respondents is that the petitioner is deployed in the North Eastern region of the country to counter the insurgency and guard the Indo-Myanmar border and taking into consideration the prevailing situation of the North East region, the offences committed by the petitioner were absolutely very serious in nature. Further, the charge sheets of the petitioner were conducted properly as per the procedure contained in Army Act and Assam Rifles Act and no violation of principle of natural justice has taken place. At the time of hearing of charge, the petitioner was afforded ample opportunity to produce any document or witness in his defence but he failed to do so. The petitioner was also given an opportunity to make a statement and cross examine the prosecution witnesses but the petitioner declined to make a statement and pleaded guilty to the charges on all four occasions. The petitioner was correctly awarded punishments on all four occasions by the Commandant 42 Assam Rifles and the averments of the petitioner that his punishments were awarded without following any proceedings are false and misleading.

Still further, the petitioner was issued show cause notice by the Deputy Inspector General Assam Rifles, Headquarter 27 Assam Rifles who is the competent authority to issue such show cause notice and discharge order in terms of Section 11(2) of the Assam Rifles Act, 2006. The petitioner has been discharged from service with entitled pensionary benefits as per the procedure. The respondents after complying with all laid down procedures had discharged him from service as an undesirable soldier. According to the respondents, the petitioner was found unfit for service in Assam Rifles being an incorrigible offender and was discharged from service under the statutory rules and retention in service was found detrimental to the discipline of other members of the force. In the affidavit-in-opposition, the respondent has annexed the judgment of the Apex Court appended as Annexure-8 [Union of India & ors v. Balwant Singh decided on 22.07.2015] and argued that the said judgment squarely covers the case in hand. However, the rejoinder affidavit has been filed denying the contents of the affidavit-in-opposition and reasserting those of the writ petition.

In the present case, there were four red ink entries in the record of the petitioner, the details of which are as under:-

"Sl. No.

Reason/Offence

Punishment Awarded

1.

Overstaying 13 days of leave

07 days Rigorous Imprisonment in AR custody.

2.

Intoxication (found drunk)

03 days Rigorous Imprisonment in AR custody.

3.

Intoxication (found drunk)

07 days Rigorous Imprisonment in AR custody.

4.

Intoxication (found drunk)

28 days in force custody and imposed fine for 14 days".

The show cause notice was issued on 16.01.2018 to which reply was submitted on 27.01.2018. A perusal of the reply clearly shows that there was no defence pleaded by the petitioner except urging that compassion be shown by retaining him in service till he completed 20 years of service enabling him to earn full pension. These red ink entries clearly show that the petitioner was an incorrigible offender and therefore had been inflicted with the punishment of discharge from service of Assam Rifles which is supposed to be discipline force. No indiscipline in this service can be tolerated as it would result in security lapses. Accordingly, the Deputy Inspector General Assam Rifles, Headquarter 27 Assam Rifles who is the Competent Authority discharged the petitioner under Section 11(2) of the Assam Rifles Act 2006 vide order dated 16.04.2018 w.e.f. 30.04.2018 after following due procedure of law.

The Apex Court in the case of Balwant Singh's case (supra) held that Assam Rifles is admittedly a discipline force in which indiscipline would undermine the task entrusted to it and indiscipline at the hands of the uniformed personnel of force cannot be tolerated. For ready reference para 11 is reproduced hereunder:-

"11. We have given our thoughtful consideration to the submissions advanced at the hands of the learned counsel for the rival parties. Assam Rifles is admittedly a disciplined force, wherein indiscipline would undermine the task entrusted to it. Therefore, indiscipline at that hands of the uniformed personnel of force, cannot be tolerated. Insofar as the present controversy is concerned, after three "Red Ink entries" were issued to the respondent, wherein he was "severely reprimanded", he was issued a notice dated 2.3.2008 informing him that one further "Red Ink entry" would entail discharge from service. The respondent acknowledged the receipt of the aforesaid notice, and undertook to ensure that he would not earn any further "Red Ink entry". And that, in case another "Red Ink entry" was issued to him, he would accept discharge from service. Despite the above, soon after the receipt of the above notice dated 2.3.2008, yet another "Red Ink entry" was issued to the respondent on 11.08.2008. Not only that, even a further punishment was inflicted on the respondent, after the last of the four "Red Ink entries", on 29.12.2008, when he was again severely reprimanded and issued a further "Red Ink entry" on 6.1.2009, for having absented himself without leave and for having been found in an intoxicated state, while on duty, on 29.12.2008.

In view of the above and applying the law laid down by the Apex Court in Balwant Singh's case (supra), I do not find any merit in this petition and the same is hereby dismissed.