Procedural fairness is paramount in discharge proceedings; the failure to conduct an impartial enquiry before discharging an individual as an incorrigible offender invalidates the discharge order.

JUDGMENT :

RAJESH MAZUMDAR, J.

1. Heard Ms. S. Bora, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned CGC appearing for the respondents.

2. The bone of contention in this writ petition under Article 226 of the Constitution of India, is the manner, in which, the petitioner has been discharged from his services as a Rifleman/General Duty from the Assam Rifles by the order dated 20th October, 2018. As per the undisputed records, the petitioner had joined his services as a Rifleman/General Duty on 29.09.2007 in Assam Rifles and during the course of his service, he earned four red ink entries on 06.07.2013, 30.09.2017, 29th January, 2018 and 30th May, 2018 respectively.

3. On 26th June, 2018, Col/Officiating DIG of Headquarter 27 Sector Assam Rifle had issued a show cause notice to the petitioner to the following effect:-

CONFIDENTIAL

12095/A/18/069

HQ- 27 Sect AR

No.G/5013846P Rfn/GD

PIN 932 527

C/o 99 APO

Sandeep Kumar

25 Assam Rifles

PIN- 932 025

C/o 99 APO

SHOW CAUSE NOTICE

1. You were enrolled as Rect (GD) on 29 Sep 2007 in Assam Rifles. Thereafter, in your service of 10 years, 08 months and 02 days (as on 01 Jun 2018), you have incurred 04 (four) Red Ink Entries in your service dossier. The details of the offences are as given below:-

2. It is clear from above that you inspite of having been advised many times to Improve in your conduct did not show any change for the better. You have thus become an incorrigible offender. Keeping this in view, it has become essential to initiate action against you in terms of Section 11 (1)/(2) of Assam Rifles Act, 2006.

3. You are hereby directed to show cause that why action to discharge you from service in terms of section 11(1)/(2) of Assam Rifles Act should not be taken against you. Please submit your reply to this Show Cause Notice within 15 days of its receipt, failing which it shall be presumed that you have no grounds to urge against the proposed action and an ex-parte decision shall be taken against you.

(Saurabh Saxena)

Col

Offg DIG Copy to:-

1. HQ DGAR (A Br, Discp Sec/Law/Rec Branch) Shillong-793010

2. Q IGAR (S) (A Br), PIN-932555, d/o 90 APO.

3. 25 Assam Rifles PIN 932 025 C/o 99 APO

4. Office Copy

Three copies of the Show Cause Notice are encl. Your are requested to return one copy of the Show Cause Notice duly signed and dated by the individual.

Received by

No.G/5013846P Rfn(GD)

Sandeep Kumar

25 Assam Rifles

Signature________________

Dated ___________________2018

CONFIDENTIAL”

4. Thus, having formed an opinion that the petitioner had become an incorrigible offender, the competent authority was of the view that it had become essential to initiate action against the petitioner in terms of Section 11 (1)/(2) of the Assam Rifles Act, 2006. The petitioner replied to the aforesaid show-cause notice on 07th August, 2018, praying for a chance to complete his service up to 20 years. There was an assurance that he would not repeat such mistake in the future.

5. By the order dated 20th October, 2018, the Brigadier, DIG Assam Rifle, Headquarters 27 Sector, had discharged the petitioner from his services w.e.f. 31st October, 2018 with a further stipulation that as per CCS Pension Rule, 1972, Rule 40(1) he would be entitled to get pension and gratuity. The order passed by the DIG, Assam Rifle is reproduced herein below for easy reference :-

OFFICE of THE DEPUTY INSPECTOR GENERAL, ASSAM RIFLES HEADQUARTERS 27 SECTOR ASSAM RIFLES, C/O 99 APO

ORDER

12095/4/18/133

Dated 20 Oct 2018

1 WHEREAS, it is considered that the conduct of N