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IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
Shri. Mahender Singh - Petitioner
Versus
Union of India & Ors. – Respondents
WP(C) No. 239 of 2014
Decided On : 20-04-2021
Assam Rifles Rules, 2010 – Rule 25 – 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 – Petitioner’s father died which has compelled him not to join service, for which he also sought to be discharged from service, but was rejected by Respondents – Petitioner requested 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 – Apart from these representations, Petitioner has sent a number of similar representations and has even made telephonic calls to Adjutant of his Unit, but no reply was received from Respondents Authorities – This prompted Petitioner to personally appear before Commandant for joining Unit and accordingly, he reached Transit Camp – During his stay, he also called upon Adjutant of his Unit who informed him that his case has been forwarded to higher authority and any order from them will be communicated to him. – He was sent back from Transit Camp and his leave certificate on which his reporting was acknowledged was also scored out and handed to him.–Petitioner then send a legal notice to Commandant 11thAssam Rifles, D.I.G. 9th Sect. and D.G. Assam Rifles, but he did not received any response to which he sent a reminder to said Respondents No. 3 and 6, but to no avail.–Petitioner received a letter for Final Settlement of Accounts (Deserter) to which he responded vide letter – It is also stated that along with said letter Respondents have conveyed to the Petitioner the Order by which he was dismissed from service –Thus being aggrieved by said impugned Order passed by Respondent No. 5, the Petitioner has therefore approached this Court with a prayer to quash same.
Finding of the court : Whether Petitioner was firstly informed about intention of the proposed action to be taken against him, secondly details of particulars furnished to him as regard the matters adverse to him, and thirdly whether show cause notice was issued to him to urge any reasons he may wish to put forward in his defence. – Only averment stated in this regard is that Authority concerned has resorted to proviso of said Rule 25 on ground that it was not expedient or reasonably practicable to comply with provisions thereof. – There is nothing on record to show that Commandant has reduced in writing the reasons for his satisfaction –This only goes to show that there has not been due compliance with provisions of the said Rule 25(supra) and therefore, proceedings initiated against Petitioner is vitiated. – Impugned Order cannot stand the scrutiny of law, the same is liable to be set aside and quashed.–Court is of opinion that impugned Order was passed without giving adequate opportunity to Petitioner to response to proceedings and as such, is liable to be set aside and quashed, which is accordingly done so here.–Respondents Authorities are directed to re-instate Petitioner immediately, however with no back wages as he was admittedly absent from active duty.–Respondent Authorities are at liberty to initiate disciplinary proceedings against him after giving him proper opportunity to defend himself in accordance with law.
Result : Writ Petition Disposed of.
JUDGMENT :
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 Authority on the
Point of Law : Service Laws – Dismissal from services – Quashment of - Issue of overstay of leave, being absent from duty without leave and consequential punishment thereof, however the said decision....
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.
Dismissal for desertion disproportionate for long-serving employee overstaying leave due to illness with prior intimation, absent proper inquiry; substitute with deemed discharge upon 20 years pensio....
The dismissal of a soldier without due process violates natural justice; all administrative inquiries must allow the individual an opportunity to be heard.
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.
Absence without leave for over 21 days mandates deserter declaration under police rules; reinstatement barred if not applied within two months from absence start, irrespective of medical claims or so....
Termination of a temporary employee based on specific allegations of misconduct, such as desertion, may be considered punitive, yet failure to comply with established medical reporting procedures jus....
The punishment imposed must be proportionate to the gravity of the misconduct, and the principles of natural justice and statutory regulations prescribing the mode of enquiry must be followed.
The court established that adherence to procedural safeguards in disciplinary actions is essential, but claims of mental incapacity must be substantiated to affect the outcome of such proceedings.
The judgment emphasizes the limited scope of judicial review in disciplinary matters involving members of the Armed Forces and the need for a higher standard of discipline.
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