Judgment

1. Heard Mr. R Jha, learned counsel for the petitioner and Mr. R Deb Nath, learned CGC appearing for the respondents.

2. In this writ petition, the relief sought for are (i) quashing the impugned dismissal order dated 31.05.2009 passed by the Commanding Officer, HQ 36th Assam Rifles, C/o 99 APO for discharging or dismissing the writ petitioner (Rifleman [General Duty] from service); (ii) quashing the punishments awarded to the petitioner and; (iii) expunge the same from the service record of the petitioner for all purposes.

3. The petitioner was enrolled as a recruit in Assam Rifles on 31.10.1999 as Rifleman (General Duty) and after completion of training, the petitioner was posted at HQ 3rd Assam Rifles and thereafter, he was allotted with the Regimental No.G/3900550. The Parliament in the Fifty Seventh year of the Republic of India enacted an Act called “the Assam Rifles Act, 2006”. The Govt. of India, Ministry of Home Affairs, issued the Notification “New Delhi, the 20th February, 2009 S.O.517(E) in exercise of the powers conferred by Sub-Section (2) of Section 1 of the Assam Rifles Act, 2006 (47 of 2006), the Central Govt. hereby appoints the 20th day of February, 2009, as the date on which the provisions of the said Act shall come into force”. Therefore, the Assam Rifles Act, 2006 (47 of 2006) came into force w.e.f. 20.02.2009. Under Section 168 of the Assam Rifles Act, 2006, the Assam Rifles Act, 1941 is repealed. For easy reference, Section 168 of the Assam Rifles Act, 2006 is quoted hereunder:-

“168. Repeal and savings.- (1) The Assam Rifles Act. 1941 is hereby repealed.

(2) Notwithstanding such repeal, - (a) the Assam Rifles in existence at the commencement of this Act and constituted under the Act so repealed shall be deemed to be reconstituted under this Act; (b) members of the Assam Rifles in existence at the commencement of this Act and appointed under the Act so repealed shall be deemed to have been appointed or, as the case may be, enrolled as such under this Act; (c) any appeal, application, trial, inquiry or investigation pending immediately before the commencement of this Act shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Assam Rifles Act, 1941, as if this Act had not come into force; (d) anything done or any action taken before the commencement of this Act, in relation to any person appointed or enrolled, shall be valid and as effective in law as if such things or action was done or taken under the corresponding provisions of this Act.”

4. Under Sub-Section (2) of Section 11 of the Assam Rifles Act, 2006 an officer not below the rank of Deputy Inspector General of Assam Rifles may dismiss or remove from service any person under his command other than an officer or a sub-ordinate officer of such rank or the ranks as may be prescribed. Section 11 of the Assam Rifles Act, 2006 reads as follows:-

“11. Dismissal, removal or reduction by Director-General and by other officers. - (1) The Director General, Additional Director-General or any Inspector-General may dismiss or remove from service or reduce to a lower grade or rank or the ranks any person subject to this Act other than an officer.

(2) An officer not below the rank of Deputy Inspector General may dismiss or remove from the service any person under his command other than an officer or a sub-ordinate officer of such rank or the ranks as may be prescribed.

(3) Any such officer as is mentioned in subsection (2) may reduce to a lower grade or rank or the ranks any person under his command except an officer or a sub-ordinate officer.

(4) The exercise of any power under this section shall be subject to the provisions of this Act and the rules and regulations.”

5. The meaning of “Subordinate officer” is defined under Section 2(w) and it means a person appointed or in pay as a Subedar Major, a Subedar or a Naib Subedar of the force. The meaning of “under-officer” is defined under