Disciplinary actions must ensure fairness and uphold military discipline; penalties must be proportionate to the gravity of the offence, as established in the Assam Rifles Act.

JUDGMENT :

KAUSHIK GOSWAMI, J.

Heard Mr. B. Pathak, learned counsel, appearing for the petitioner. Also heard Mrs. B. Sarma, learned C.G.C., appearing for the respondents.

2. By way of this writ petition under Article 226 of the Constitution of India, the petitioner is assailing the impugned discharge order dated 25.03.2020 (Annexure-4 to the writ petition), whereby the petitioner was initially awarded the punishment ‘ to be dismissed from service ’; however, later on upon being remitted, the punishment was modified to ‘compulsorily retired from service’

3. The brief facts of the case are as follows: -

The petitioner, Ex-Rifleman (General Duty) Sarode Ankush Ramnath was enrolled into Assam Rifles on 31^st October, 2007, and after completion of basic military training, he was posted to 7 Assam Rifles with effect from 7^th November, 2008 to 4^th March, 2020.

It is the specific case of the petitioner that he was granted 90 days Earned Leave plus 10 days journey period with effect from 21^st January 2013 to 30^th April 2013. After termination of the said leave, he was supposed to report on 1^st May 2013 but he failed to do so. Accordingly, the petitioner was declared Over Staying Leave (OSL) with effect from 1^st May 2013 vide 7 Assam Rifles signal No. A 5514 dated 26^th May 2013 and as per Section 83 (1) of the ASSAM RIFLES ACT , 2006, apprehension roll was issued vide letter No. I.32011/12/Rec/2013/245 dated 31^st May 2013 to the Superintendent of Police, District Aurangabad (Maharashtra) with copy to petitioner's Next of Kin i.e. Smt Sarode Chandrakalabai (Mother) and concerned police station. Thereafter, the petitioner voluntarily reported at Assam Rifles Transit Camp, Dimapur, on 9^th July 2016 after remaining OSL for 1166 days. Subsequently, a Court of Inquiry was convened by the 7th Assam Rifles vide order No. I.11012/35/A/C of I/2019 dated 16th April 2019, to investigate the circumstances under which the petitioner remained OSL for 1166 days without informing the competent authority. During the inquiry, the petitioner was provided with full opportunity to cross examine the witnesses or produce any evidence in his support. The Court of Inquiry found the petitioner blameworthy for the grave offence and recommended strict disciplinary action against the petitioner for remaining OSL for 1166 days and thus, a Tentative Charge Sheet dated 30th May 2019 was served to the petitioner under Section 26 (b) of the ASSAM RIFLES ACT , 2006.

Thereafter, on 1st June 2019, Hearing of Charge was conducted as per Rule 47 of ASSAM RIFLES RULES , 2010 in which competent authority ordered to record Summary of Evidence. During recording of Summary of Evidence, the petitioner revealed that during his leave he appeared for B.A first year examination and subsequently, decided to continue his graduation without reporting back to his unit. After completion of his graduation in the year 2016, when the petitioner could not find any suitable employment in civil, he decided to rejoin his unit. However, it is pertinent to mention here that the petitioner never informed anyone about his aspiration of completing graduation nor did he contact the competent authority for extension of his leave. However, he willfully remained OSL for 1166 days.

The recording of Summary of Evidence was concluded on June 2019 and thereafter, Summary Assam Rifles Court, for short, SARC was ordered for early disposal of the case under Section 26 (b) of the ASSAM RIFLES ACT , 2006. The 7 Assam Rifles vide letter no. 1.11012/A-Discp/SAR/2020/7986 dated 28^th February 2020, informed the petitioner about trial by SARC under Section 26 (b) of ASSAM RIFLES ACT , 2006 and the petitioner was also given the oppor