IMPORTANT POINT
The court upheld the dismissal of a paramilitary personnel for overstaying leave, emphasizing the need for substantiated claims and adherence to natural justice in disciplinary proceedings.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

Approach to this Court under Article 226 of the Constitution of India has been made with the following prayer:

“In the premises aforesaid, it is therefore humbly prayed that your Lordships may be pleased to admit this petition, call for records, and issue Rule upon the Respondents to show cause as to why a writ in the nature of certiorari should not be issued to quash and set aside and impugned order of discharge dated 08 March 2019, (Annexure -7) passed by the Respondent no. 4 as being arbitrary and illegal and further to show cause as to why a writ in the nature of Mandamus should not be issued / directing / commanding the Respondents to reinstate the petitioner in service forthwith with all service benefits; and / or cause as de novo inquiry with proper opportunity of hearing to the petitioner, and after causes / causes being shown and after hearing the parties may be pleased to make the Rule absolute and / or pass such order (s) as to your Lordships deem fit and proper.”

2 . As per the facts projected, the petitioner who hails from Jharkhand had joined the Assam Rifles as a Rifleman (GD) on 01.04.2013 and was posted at th the 40 Assam Rifles. While in service, he was sanctioned leave for 15 days on 20.06.2015. However, after reaching home for the purpose of his marriage, there were certain circumstances for which the petitioner could not go back and join his service and therefore, he overstayed his leave. Ultimately, on 19.06.2018, the petitioner had returned back and joined his service. After such re-joining, a preliminary enquiry was initiated on 31.01.2019 wherein statements were recorded and a summary Court Martial was recommended. Accordingly, on 08.03.2019 a summary Court Martial was held resulting in dismissal from service of the petitioner. The petitioner had preferred an appeal which, according to him was also not considered. Accordingly, the present writ petition has been filed with the grievances as mentioned above.

3 . I have heard Shri B. Pathak, learned counsel for the petitioner. I have also heard Ms. B Sarma, the learned CGC.

4 . Shri Pathak, the learned counsel for the petitioner has submitted that there were compelling circumstances for which the leave had to be overstayed. He submits that though the period of overstay is more than 1,000 days, that by itself cannot be a ground for dismissal from service when there were justifiable grounds and basis for such overstay. It is contended that when the petitioner had availed his leave on 20.06.2015 to solemnize his marriage and had come to his hometown, there were threats from Naxalites regarding the said marriage in spite of which the marriage was solemnized. He has also contended that subsequent thereto the uncle of the petitioner was shot dead in which the target was actually the petitioner. Under those circumstances, the petitioner, in fear of his life did not come back to re-join his service and accordingly, the delay had occasioned. It is submitted that from the affidavit-in-opposition filed by the respondent authorities, the petitioner had come to learn that the appeal has been dismissed. He has also contended that from the proceedings, it appears that the petitioner was shown to have pleaded Guilty which according to him was done without understanding the consequence thereof.

5 . By drawing the attention of this Court to the averments made in paragraph 15 of the writ petition, the learned counsel for the petitioner has submitted that on 31.03.2015, his marriage was solemnized and there was a threat by the Naxalites and the aspect of death of the uncle of the petitioner who was shot by the Naxalites has also been pleaded. The learned counsel has accordingly submitted that the aforesaid aspects have not been taken into consideration in its correct perspective and in a mechanical way, the order of dismissal has been passed in t