Point of Law: Dismissal of service - Grant of reinstatement - Order was passed without giving adequate opportunity to the Petitioner to response to the proceedings and as such, is liable to be set aside.

JUDGMENT :

W. DIENGDOH, J.

1. The pleaded case of the Petitioner is that he was enrolled as a recruit in Assam Rifles on 28.02.2004 and after completion of his training, he was posted with 11th Assam Rifles as his parent Unit.

2. On 20.09.2006, the Petitioner was granted 15(fifteen) days’ casual leave, which was sought to be extended to 35(thirty five) days on account of serious health condition of his mother.

3. In the meantime, the Petitioner’s father died on 03.01.2007 which has compelled him not to join service, for which he also sought to be discharged from service, but was rejected by the Respondents.

4. On 08.01.2008, the Petitioner requested the Respondent No. 6 to allow him to re-join duty through a representation which was sent by registered post and after waiting for a considerable period, he sent another request vide letter dated 13.11.2008. Apart from these representations, the Petitioner has sent a number of similar representations and has even made telephonic calls to the Adjutant of his Unit, but no reply was received from the Respondents Authorities. This prompted the Petitioner to personally appear before the Commandant for joining the Unit and accordingly, he reached the Transit Camp, Dimapur on 21.09.2010 and was there till 24.09.2010. During his stay, he also called upon the Adjutant of his Unit who informed him that his case has been forwarded to the higher authority and any order from them will be communicated to him. He was sent back from the Transit Camp and his leave certificate on which his reporting was acknowledged was also scored out and handed to him.

5. After waiting for six months without getting communication, the Petitioner on 25.02.2011 wrote a letter to Respondents No. 3 and 6 for re-joining his service, but he did not get any response.

6. On 29.04.2011, he received a letter from Respondent No. 6 asking him to report to his Unit and accordingly, he reported to the Transit Camp, Dimapur on 22.06.2011 where the Rear IC informed him that a message was received from Headquarters that he was to return home and that further information will be communicated to him.

7. The Petitioner then send a legal notice to the Commandant 11th Assam Rifles, D.I.G. 9th Sect. and D.G. Assam Rifles, Shillong on 27.07.2011, but he did not received any response to which he sent a reminder to the said Respondents No. 3 and 6, but to no avail.

8. That finally, on 10.06.2013, the Petitioner received a letter for Final Settlement of Accounts (Deserter) to which he responded vide letter dated 17.07.2013. It is also stated that along with the said letter dated 10.06.2013, the Respondents have conveyed to the Petitioner the Order No. I.11046/2/2011-A dated 31st Oct, 2011 (Annexure-XI) by which he was dismissed from service.

9. Thus being aggrieved by the said impugned Order dated 31.10.2011 passed by the Respondent No. 5, the Petitioner has therefore approached this Court with a prayer to quash the same.

10. Mr. S. Chakrawarty, learned Sr. counsel appearing for the Petitioner has submitted that the action of the Respondents Authorities in passing the said impugned Order dated 31.10.2011 is illegal and contrary to records, inasmuch as, the Petitioner by his voluntarily reporting to the Respondent Authority at the Transit Camp, Dimapur on 21.09.2010 and 22.06.2011 which fact is within the knowledge of the Respondent Authorities, yet the impugned Order was passed nevertheless. The fact that the Petitioner has also sent many representations to the concerned Authorities is also evident to prove that he was not a deserter and as such, the impugned Order was ill conceived and is liable to be set aside and quashed.

11. Another point raised by the learned Sr. Counsel is that the Respondent No. 5 has issued the said impugned Order in total disregard of Rule 25 of the Assam Rifles Rules 2010, since the Petitioner was never served with prior notice since the same was received by him only in the year 2013. The alleged reliance by the Respondent Au