Yachulu Magh vs Union of India and 3 Ors

Heard Mr. B. Pathak, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned Central Government Counsel for all the respondents.

By filing this writ petition, the petitioner has put to challenge the order dated 18.09.2019, passed by the Deputy Inspector General, Assam Rifles, whereby the petitioner has been discharged from his service as Rifleman (General Duty) from the Assam Rifles with effect from 18.09.2019 on the ground that he had incurred four Red Ink Entries and was found to be an incorrigible offender.

The petitioner was enrolled as Rifleman (General Duty) in the Assam Rifles on 01.08.2005 and served the force for more than 14 years in insurgency-prone areas of the North-Eastern region during his tenure. It is the case of the petitioner that four Red Ink Entries were recorded in his service record on account of four separate incidents. In each of the instances, the punishment was imposed without affording him an effective opportunity of hearing and without following the procedure prescribed under Rules 47, 49, 60, 61 and 62 of the Assam Rifles Rules, 2010 and the Regulation 107 of the Assam Rifles Regulation, 2016.

The petitioner contends that on 11.07.2019, a show-cause notice was issued to him referring to the four offences and calling upon him to show cause as to why appropriate action should not be taken against him. The petitioner submitted his reply on 23.07.2019, requesting that he may be retained in service and assuring the authority of his willingness to continue his service. However, without holding any further enquiry and without properly considering his reply and the circumstances in which the four Red Ink Entries had been awarded, the respondent authority passed the impugned order dated 18.09.2019 by holding that the conduct of the petitioner, which had led to the four Red Ink Entries, rendered his further retention in service undesirable, being an "incorrigible offender", and thereafter, in exercise of the power under Section 11(2) of the Assam Rifles Act, 2006 read with Rules 17 and 25 of the Assam Rifles Rules, 2010, the petitioner was discharged from service.

Mr. B. Pathak, learned counsel for the petitioner, submits that the impugned order is unsustainable in law, having been passed without following the procedure prescribed under the Assam Rifles Rules, 2010 and in violation of the principles of natural justice. The petitioner had already been punished for the four alleged misconducts and the corresponding Red Ink Entries had been recorded in his service record. Therefore, before treating the petitioner as an "incorrigible offender" and discharging him from service, the competent authority was required to consider the circumstances in which such entries had been awarded and afford the petitioner an effective opportunity of defending himself. He submits that the petitioner had rendered long years of service and the circumstances leading to the respective incidents, including the medical condition of his family members, were not duly considered by the competent authority. The petitioner had specifically placed his case before the authority in response to the show-cause notice, requesting that he be retained in service, but the said representation was rejected without any proper consideration.

Mr. Pathak, learned counsel, further submits that the present case is squarely covered by the judgment and order dated 12.03.2026, passed by a coordinate Bench of this Court in WP(C) No. 1602/2019 (Sandeep Kumar Vs. Union of India & Ors.), wherein, in circumstances relating to discharge from Assam Rifles on the basis of four Red Ink Entries and treating the individual as an incorrigible offender, the discharge order was interfered with on account of non-compliance with the procedure prescribed under the applicable Assam Rifles Regulations. Therefore, he submits that the impugned order dated 18.09.2019, having been passed without affording the petitioner an adequate and meaningful opportunity of hearing and without following the prescribed procedure, is liable to be set aside and quashed and accordingly, prays that the respondent authorities may be directed to reinstate the petitioner in service with all consequential service benefits.

Ms. A. Gayan, learned Central Government Counsel for the respondents, submits that the petitioner had incurred four Red Ink Entries during his service career and had never challenged any of the said entries. Rather, in his reply dated 23.07.2019 to the show-cause notice, instead of disputing the misconduct, the petitioner had admitted his mistakes that he had violated the service rules and had committed the offences for which the said entries were awarded and also assured the authorities that he would not repeat the same. He had also requested that he may be allowed to continue in service keeping in view the future of his family. The said reply was duly considered by the competent authority along with the relevant disciplinary records, but was found unsatisfactory.

As regards the contention of the petitioner that the respondents were required to conduct an enquiry under Regulation 107 of the Assam Rifles Regulations, 2016, learned CGC submits that the said provision relates to removal of undesirable, incorrigible and inefficient subordinate officers, under officers and other enrolled persons and the procedure contemplated therein is not in the nature of a regular departmental enquiry, but a fair decision-making process and the nature and extent of such enquiry would depend upon the facts and circumstances of each case. She submits that the requirement of preliminary enquiry stands satisfied where the individual concerned is apprised of the allegations, is afforded an opportunity to submit his explanation and his explanation is thereafter duly considered by the competent authority before taking a decision. In the present case, the petitioner was given adequate opportunity to put forward his defence and his reply to the show-cause notice was duly considered by the competent authority. She submits that the petitioner had already been punished on each of the occasions on which he was found absent from duty and the four Red Ink Entries were duly recorded in his service record. Therefore, the subsequent decision to discharge him from service, upon consideration of his overall conduct and service record, cannot be said to be unjustified. Therefore, she submits that the petitioner has not made out any procedural infirmity in the impugned order of discharge warranting interference by this Court.

I have considered the submissions made by the learned counsel for the parties and have also perused the materials available on record.

In the present case, it is not in dispute that the petitioner was discharged from service on the ground that he had incurred four Red Ink Entries, his conduct rendered his further retention in service undesirable and he had become an “incorrigible offender”. However, the respondents proceeded to discharge the petitioner without following the procedure contemplated under Regulation 107 of the Assam Rifles Regulations, 2016.

In an identical factual and legal situation, a coordinate Bench of this Court in the case of Sandeep Kumar (supra) has examined the scope of the Assam Rifles Regulations, 2016 and held that where the authorities seek to proceed against an enrolled person on the ground that he has become an “incorrigible offender”, the procedure prescribed under the said Regulation, including the requirement of an impartial enquiry and an adequate opportunity to the concerned individual, is required to be followed. The coordinate Bench further held that where two separate provisions contemplate different modes of discharge, the individual concerned is required to be given adequate notice of the procedure proposed to be followed and the allegations against which he is required to defend himself.

In the said case of Sandeep Kumar (supra), the discharge order was accordingly interfered with and set aside on account of the serious procedural lapse committed by the respondent authorities. The coordinate Bench directed reinstatement of the petitioner and further directed that the period during which he had remained out of service be treated as continuous service for all practical purposes. However, it was clarified that such interference with the discharge order would not preclude the respondents from taking appropriate action against the petitioner, if so advised, with regard to the four Red Ink Entries or the allegation of his being an “incorrigible offender”, provided such action is taken in accordance with law and after affording due opportunity as required under the Act, Rules and Regulations applicable to the Assam Rifles.

In the present case also, the petitioner was proceeded against on the basis of his having incurred four Red Ink Entries and on the allegation that his conduct rendered his further retention in service undesirable, being an “incorrigible offender”. The impugned order dated 18.09.2019 records that the petitioner was being discharged in exercise of the powers under Section 11(2) of the Assam Rifles Act, 2006 read with Rules 17 and 25 of the Assam Rifles Rules, 2010. However, the respondents have not demonstrated that the procedure contemplated under Regulation 107 of the Assam Rifles Regulations, 2016, as noticed by the coordinate Bench in Sandeep Kumar (supra), was followed before the impugned order of discharge was passed.

The mere fact that the petitioner was served with a show-cause notice and he submitted his reply thereto, in the facts of the present case, cannot cure the procedural infirmity. The issue is not merely whether an opportunity to submit a reply was afforded, but whether the petitioner was afforded the opportunity in accordance with the procedure applicable to the action proposed to be taken against him. The coordinate Bench in the case of Sandeep Kumar (supra) has categorically held that the concerned individual must have adequate notice of the process sought to be followed and of the allegations against which he is required to defend himself.

Having considered above, this Court is of the view that the judgment and order passed in Sandeep Kumar (supra) squarely covers the issues arising in the present writ petition. Accordingly, the impugned order dated 18.09.2019, passed by the Deputy Inspector General, Assam Rifles, is interfered with and set aside and quashed.

Consequently, the respondents are directed to reinstate the petitioner in service within a period of 1(one) month from the date of receipt of a certified copy of this order. The period during which the petitioner has remained out of service, pursuant to the impugned order dated 18.09.2019, shall be treated as continuous service for all practical purposes.

Insofar as the question of back wages and other actual monetary benefits for the period during which the petitioner remained out of service is concerned, the petitioner shall file an affidavit before the respondent authorities disclosing his earnings or income, if any, during the said period. Upon receipt of such affidavit, the respondent authorities, having regard to the affidavit filed and after making such enquiry as may be considered necessary, shall pass appropriate orders regarding the entitlement of the petitioner to back wages and other actual monetary benefits for the said period.

It is, however, clarified that setting aside of the impugned order shall not operate as an impediment in the way of the respondents in taking such appropriate action as may be deemed fit against the petitioner with regard to his four Red Ink Entries or the allegation of his being an “incorrigible offender”. However, if any such action is taken or proposed to be taken, the same shall be done in accordance with law and after giving due opportunity to the petitioner as required under the Act, Rules and Regulations applicable to the Assam Rifles.

Writ petition stands disposed of in terms above.