Gauhati High Court
Subhas Chandra vs The Union Of India And 6 Ors on 26 March, 2019
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
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GAHC010016642016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3167/2016
1:SUBHAS CHANDRA
NO.05038624 CT/GD, S/O SHRI K.N. YADAV, R/O DEVARIYA, P.O.
MAHARAUDA, P.S. SORAON, DIST- ALLAHABAD
VERSUS
1:THE UNION OF INDIA and 6 ORS
THROUGH MINISTRY OF HOME AFFAIRS, NEW DELHI
2:THE DIRECTOR GENERAL
SHASASTRA SEEMA BAL
S.S.B.
EAST BLOCK
V-R.K. PURAM
NEW DELHI
3:THE ASSTT. DIRECTOR PERS-II
SSB BLOCK-V EAST
R.K.PURAM
NEW DELHI-66
4:THE ASSTT. DIRECTOR PERS-II
SSB BLOCK-V EAST
R.K.PURAM
NEW DELHI-66
5:INSPECTOR GENERAL OF POLICE SECTOR-HEADQUARTER
SSB
GAUHATI FRONTIER
GUWAHATI
6:DY. INSPECTOR GENERAL
SHQ
SSE
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BONGAIGAON
ASSAM
7:THE COMMANDANT
16TH BATTALION
SSB
KOKRAJHAR
ASSA
Advocate for the Petitioner : MR.V KUMAR
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 26-03-2019 Heard Mr. H. Talukdar, learned counsel for the petitioner. Also heard Ms. A. Gayan, learned CGC for the Union.
2) In this petition, the petitioner has challenged the dismissal order dated 09.10.2010 issued by respondent No. 5 and subsequent appellate order and revisional order passed by the authorities and seeking reinstatement in service with consequential benefits.
3) Only the relevant facts as necessary may be mentioned herein.
4) The petitioner who was serving as a constable in the SSB was proceeded against departmentally on the ground of overstaying leave vide memo dated 26.07.2011. The petitioner was informed that he had proceeded on 35 days earned leave w.e.f. 24.05.2011 to 26.07.2011 with direction to report back at 16 Battalion Head Quarter, but he failed to report due on duty and accordingly, he remained willfully absent without any information.
Accordingly, the petitioner was directed to report at 16 th Battalion Head Quarter, Adabari, Kokrajhar, Assam forthwith on receipt of the memorandum dated 26.07.2011 without any further delay with a warning that failing which strict disciplinary action will be initiated against Page No.# 3/9 him under the SSB Act and Rules.
5) Though, the petitioner claims that he submitted his representation for extension of his earned leave on medical ground as petitioner was admitted to hospital undergoing treatment relating to liver Cirrhosis and kidney disorder, because of which he could not resume duty, the authorities without giving any further notice to him proceeded to hold the Court of Enquiry.
6) As per records, the Court of Enquiry was held on 21.09.2011, by which the Court of Enquiry examined two witnesses and also examined a number of documents produced by the authorities and thereafter, concluded and recommended that the petitioner be declared a deserter from the Force under the SSB Act & Rules.
7) On the basis of the said finding and recommendation made by the Court of Enquiry, a show cause notice was served upon the petitioner on 16.02.2012 by which the petitioner was directed to submit his response. However, the petitioner could not submit the reply because of the illness as mentioned above and accordingly, thereafter, the impugned order dated 09.10.2012 was passed by which the petitioner was dismissed from service under Rule 18 of SSB Rules, 2009 read with Rule 26 of SSB Rules.
8) Though, a number of grounds have been raised by the petitioner in challenging the dismissal order, the petitioner has submitted that before the Court of Enquiry was held, the petitioner was not informed or given any notice of holding of the Court of Enquiry, and as such on this ground only, the entire proceeding initiated against him is vitiated and, as such, the dismissal order issued on the strength of the finding made by Court of Enquiry without giving any opportunity of participating and hearing and hence, ex parte, is liable to be set aside.
9) At this, Ms. A. Gayan, learned CGC for the Union submitted that before the Court of Enquiry was held, the petitioner was duly informed of the sitting of the Court of Enquiry on 21.09.2011. It has been submitted that a memorandum was issued on 26.07.2011, by which Page No.# 4/9 the petitioner was informed that failing to report at 16 Battalion Head Quarter forthwith without any delay, strict disciplinary action will be initiated under the rules which was followed by other memoranda dated 29.08.2011 and 19.09.2011. As such, only after the petitioner failed to respond to the said memoranda issued, the said Court of Enquiry was held and accordingly, it has been submitted that it cannot be said that the petitioner was not informed of the holding of the said Court of Enquiry.
10) To appreciate the submission advanced by the learned CGC for the Union, it may be apposite to reproduce the aforesaid Memoranda dated 26.07.2011, 29.08.2011 as well as 19.09.2011:
"
Registered/AD Government of India Ministry of Home Affairs Office of the Commandant 16th Bn, SSB, Adabari, Kokrajhar (Assam) 783376 No. 01/10 (21897)/16th BN/PF/09 7136-38 dated 26th July, 2011 MEMORANDUM - 1 You had proceed on 35 (Thirty five) days earned leave w.e.f. 24/05/11 to 27/06/2011, with direction to report back at 16 th BN HQ, Adabari, Kokrajhar, Assam on 27/06/11, before evening roll call. But you failed to resume your duty on due date and time and willfully absent w.e.f 28/06/11 (FN) to till date without any information.
Hence, you are hereby directed to report at 16 th BN HQ, Adabari, Kokrajhar, Assam, forthwith on receipt of this memo without any delay. Failing which strict disciplinary action will be initiated against you under SSB Act & Rules.
ADJUTANT 16TH BN SSB ADABARI ASSAM"
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Registered/AD Government of India Ministry of Home Affairs Office of the Commandant 16th Bn, SSB, Adabari, Kokrajhar (Assam) 783376 No. 01/10 (21897)/16th BN/PF/09 8834-36 dated 29th July, 2011 MEMORANDUM Re-joining Notice-II You had proceed on 35 (Thirty five) days earned leave w.e.f. 24/05/11 to 27/06/2011, with direction to report back at 16 th BN HQ, Adabari, Kokrajhar, Assam on 27/06/11, before evening roll call after expiry of leave, you failed to resume your duty on due date willfully absent w.e.f 28/06/11 (FN) to till date without any information.
Hence, you are once again directed to report at 16 th BN HQ, Adabari, Kokrajhar, Assam, forthwith on receipt of this memo without any delay, failing which strict disciplinary action will be initiated against you under SSB Act & Rules.
ADJUTANT 16TH BN SSB ADABARI ASSAM"
******************** "
Registered/AD Government of India Ministry of Home Affairs Office of the Commandant 16th Bn, SSB, Adabari, Kokrajhar (Assam) 783376 Page No.# 6/9 No. 01/10 (21897)/16th BN/PF/09 13619-21 dated 19th September, 2011 MEMORANDUM Re-joining Notice-III You had proceed on 35 (Thirty five) days earned leave w.e.f. 24/05/11 to 27/06/2011, with the direction to report back at 16 th BN HQ, Adabari, Kokrajhar, Assam on 27/06/11, before evening roll call. After expiry of leave, you failed to resume your duty on due date and willfully absented w.e.f 28/06/11 (FN) to till date without any information.
Hence, you are once again directed to report at 16 th BN HQ, Adabari, Kokrajhar, Assam, forthwith on receipt of this memo without any delay, failing which strict disciplinary action will be initiated against you under SSB Act & Rules.
ADJUTANT 16TH BN SSB ADABARI ASSAM"
11) It may be noted that the Court of Enquiry is comparable to a departmental proceeding, in which the disciplinary authority examines a number of witnesses and also the documents relied on by the authorities to prove the charges against the petitioner. Therefore, it is incumbent upon the disciplinary authority to inform the charged officer of the convening of the Departmental Enquiry, by informing the charged officer of the date and time. This information or notice about the holding of the Departmental Enquiry is distinguishable from the show cause notice as to why a disciplinary action will not be taken.
12) In the present case, the said Court of Enquiry was held to enquire into the facts and circumstances under which the petitioner had over stayed the 35 days earned leave and as such, the purpose of holding enquiry is very clear. It was to ascertain any lapses on the part of the petitioner. If that is so, it was incumbent upon the authorities before holding the said Court of Enquiry on 21.09.2011 to have informed the petitioner that the Court of Enquiry is going to be held on 21.09.2011. It would be a different matter, if the petitioner does not respond to any such intimation by the authorities of the decision to hold the Court of Enquiry on 21.09.2011.
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13) The responsibility of the authorities to intimate the petitioner remains, that the Court of Enquiry is going to be convened on 21.09.2011. In other words, before the authorities proceeded to hold the Court of Enquiry to ascertain the circumstances under which the petitioner had overstayed his leave, it was incumbent upon authorities to inform the petitioner of holding such an enquiry, on such date and time fixed by the authorities, as the finding which will be arrived at by the Court of Enquiry will form the basis for the subsequent disciplinary actions taken by the authorities against the petitioner.
14) Shasastra Seema Bal Act, 2007 and Rules framed there under, namely Shastra Seema Bal Rules, 2009, are silent as to whether a person proceeded against must be given notice before convening or holding the Court of Enquiry under Act and Rules.
15) However, the principles of natural justice would come into play wherever there is a silence on such situations where an adverse finding may be arrived at pursuant to an enquiry. Therefore, even if the Act and Rules are silent about prior notice before holding of Court of Enquiry, requirement of it has to be read into same.
16) In other words, even if the Act and Rules are silent as regards requirement to give notice before convening or holding a Court of Enquiry, the person charged must be given notice of the holding of the Court of Enquiry of the time and place. In the present case, what has been noted is that apart from the memoranda issued prior to the said holding of Court of Enquiry referred to above, there was no specific notice issued to the petitioner about the time and place of holding of Court of Enquiry. The aforesaid memoranda merely mention that in the event of failure on the part of the petitioner to report for the duty, strict disciplinary action would be initiated. In the opinion of this Court, that memoranda or show cause notices cannot be said to be notice informing the petitioner of convening or holding of the Court of Enquiry.
17) Further, on perusal of the Rule 175 of SSB Rules, 2009, it is seen that it lays down the procedure of the Court of Enquiry. It has been provided under Sub-rule 8 of Rule 175 that in the case of a prisoner of war who is still absent whenever the subject matter of enquiry is Page No.# 8/9 the conduct or character of a particular person, such person may be associated throughout with the enquiry and be given full opportunity of making any statement, or giving any evidence, he may wish to make or give, and of cross-examination any witness whose evidence in his opinion, affects his character or reputation.
18) The aforesaid Sub-rule 8 clearly indicates that the person proceeded against must be given opportunity which cannot be said to have been given, if he was not notified at all of the convening of the Court of Enquiry. If no notice had been given by the authorities of the convening of the Court of Enquiry or holding of the Court of Enquiry, the provisions of Sub- rule 8 of Rule 175 will be rendered otios and redundant. That cannot be the contemplation under law. As such, this Court holds that if the petitioner was not given notice of the convening and holding of the Court of Enquiry on 21.09.2011 and if it was proceeded ex parte as against the petitioner, as in the present case, the entire proceeding would stand vitiated for violation of the principles of natural justice and also for violating Sub-rule 8 of Rule 175 of the SSB Rules, 2009. If that is so, if the initial act has been vitiated, all the subsequent and consequential acts will also stand vitiated, even if the subsequent the acts have been carried out in accordance of law.
19) It is a settled legal position that if the initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason the illegality strikes at the root of the order. The legal maxim ' sublato fundamento cadit opus', meaning thereby that foundation being removed, structure/wall falls, comes into play. [See State of Pubjab Vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770]
20) In that view of the matter, this Court does not consider it necessary to examine the legality of the subsequent actions taken by the authorities after the holding of the Court of Enquiry as to whether these were done in accordance with law or not, for the reason that this Court has already found that holding of the Court of Enquiry on 21.09.2011 is vitiated on account of non intimation of the holding of the said Court of Enquiry and also non-providing of the opportunity to the petitioner as mentioned under Sub-rule 8 of Rule 175.
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21) In the result, for the reasons discussed above, the petition succeeds. The impugned dismissal order dated 09.10.2010 and subsequent appellate order and revisional order passed by the authorities are set aside.
22) Accordingly, the petitioner is entitled to be reinstated in service. The respondent authorities will accordingly reinstate the petitioner to service. Considering the fact that the incident occurred in 2011 for alleged absence which according to the petitioner, was occasioned because of serious illness from which he was suffering, if the petitioner is not found fit to be retained in service, the petitioner may be given voluntary retirement by treating him to be in service, and all consequential benefits be given to him. If, however, he is fit to resume duty he must be allowed to be reinstated in service with all the consequential reliefs and the authorities will be at liberty to impose any other lessor/minor punishment other than removal/dismissal/termination from service.
JUDGE Comparing Assistant