Meghalaya High Court
Jasom Wangsa vs . The Union Of India on 2 May, 2019
Equivalent citations: AIRONLINE 2019 MEG 46
Author: H. S. Thangkhiew
Bench: H. S. Thangkhiew
Serial No. 14
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 279 of 2017
Date of Decision : 02.05.2019
Jasom Wangsa Vs. The Union of India
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner(s) : Mr. D.R. Gogoi, Adv.
For the Respondent(s) : Mr. K. Paul, C.G.C.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
ORAL
1) Heard Mr. D.R. Gogoi, learned counsel for the
petitioner and Mr. K. Paul, learned CGC for the respondents.
2) The brief facts of the case are that the petitioner was enrolled as Rect/GD (Rifleman) in the Assam Rifles on 10th June, 2009. In the course of his service, the petitioner overstayed his leave on four occasions which resulted in four red ink entries in his dossier and ultimate discharge from service, vide discharge order dated 20th July, 2016 under ROI 01/2004, read with Rule 24 of Chapter viii of Assam Rifles Manual and Section 11 (2) of Assam Rifles Act 2006 read with Rule 25 of Assam Rifles Rules 2010.
3) Being aggrieved with the impugned order of discharge, dated 20th July, 2016, the instant writ petition has been WP(C) No. 279 of 2017 Page 1 of 5 preferred for quashing and setting aside the said order and for a mandamus to issue directions to the respondents to reinstate the petitioner in service.
4) Mr. D.R. Gogoi, learned counsel for the petitioner submits that the petitioner belongs to a remote village of Arunachal Pradesh where transport communication is very difficult, as such whenever he went home on leave it became difficult for him to report back to duty in time. He further submits that his absence from duty on all the four occasions was due to the health of his wife who was seriously ill. He further submits by contending that the punishment of discharge awarded to him is not commensurate with the offence which is only the overstay of leave. As such, he prays that the punishment be lessened and he be allowed to continue in service.
5) Mr. K. Paul, learned CGC for the respondents submits that the petitioner had been discharged from service for being an incorrigible offender and for having incurred four red ink entries in his service dossier. The learned C.G.C. also submits that the infractions happened within a short span of 7 years 1 month of the service of the petitioner and the period of unauthorized absence in total amounted to 198 days. He further submits that at the time of hearing the charges, which was conducted by the Commandant, the petitioner failed to produce any evidence or present any bona fide reason to explain his absence from duty on all the four occasions that he had overstayed. In fact, he submits, the petitioner had pleaded guilty to the charges and as such in view of his conduct he was awarded four red ink entries by the Commandant.
6) The learned C.G.C. goes on by submitting that it is not the case where the petitioner was not heard as he was afforded ample opportunities by the Commandant to defend himself and was given full liberty to produce any evidence in his defense. However, the petitioner failed to produce any evidence or any witness and pleaded guilty to the charges. As such, he submits that there is no place for a person like the petitioner in a disciplined force i.e. the Assam Rifles WP(C) No. 279 of 2017 Page 2 of 5 and that retention of such personnel cannot be accepted for maintenance of discipline in the force. The learned C.G.C. also has annexed the judgment rendered by the Hon'ble Supreme Court in Civil Appeal No. 5616 of 2015 dated 22nd July, 2015 (Union of India and Others vrs Balwant Singh) with the counter affidavit, which has dealt with a similar situation concerning red ink entries and where the order of discharge has been upheld. In conclusion, he submits that the petitioner has not even challenged the red ink entries and had been duly warned with regard to the consequences of four red ink entries which the petitioner ignored; he therefore submits the writ petition being without any merit whatsoever, is liable be dismissed.
7) I have heard learned counsel for the parties and carefully examined the material on records. The facts that that the petitioner had remained absent without leave on four occasions amounting to 198 days which earned him four red ink entries are not disputed. This in turn had resulted in the discharge of the petitioner from service vide order of discharge dated 20th July, 2016, in terms of Clause 5 of the ROI 1/2004, which is quoted herein below:-
"5. Discharge/Disposal of Undesirable/Inefficient Personnel : Vide Chapter VIII, Rule 24 of the Assam Rifles Manual confers powers on the commandants of Assam Rifles Battalion to discharge any members of the Assam Rifles below the rank of Nb/Sub. This power may be exercised by a Commandant in case where a person has got four or more red ink entries. In case, it is necessary to send an individual on discharge under this provision, a notice will be served on the individual affording an opportunity to him to explain his case. Thereafter the complete case will be forwarded to Sector HQ along with the notice and reply received from the individual, for the approval of the Sector Commander. Thereafter the documents will be sent to this Directorate, Record Branch/UPAO for final settlement of his IRLA."
8) From the materials on record it is reflected that before the final fourth red ink entry was entered in the dossier of the writ WP(C) No. 279 of 2017 Page 3 of 5 petitioner he was issued a warning on 20th October, 2015, the extract of which is quoted herein below:-
" CONFIDENTIAL
2. It is clear from above that inspite of having been advised many times to improve your conduct, you did not show any improvement. You are hereby warned to be more careful in your conduct. If you incur the fourth Red Ink Entry in your service documents, than action will be taken to discharge you from service under Provision of Para 5 of ROI 01/2004, read with Rule 24 of Chapter VIII of AR Manual and Section 11 (2) of Assam Rifles Act 2006 read with Rule 17 and 25 of Assam Rifles Rules 2010.
(NavinSachdeva) Brig DIG AR"
9) In spite of the last warning whereby it was clearly stated therein that he would be subjected to discharge if his conduct did not show any improvement, the writ petitioner did not pay heed to the same and remained absent again which resulted in the inevitable impugned order of discharge. The petitioner having been served with the warning and the pre-requisite opportunity of hearing having been followed, no infirmity in procedure can be discerned which culminated in the order of discharge. Moreover, the petitioner has not challenged the red ink entries, and in fact accepted the same.
10) The Assam Rifles being a disciplined force, high standard of discipline is demanded and expected from the personnel of the force, and as such the standard of conduct and discipline that is expected to be maintained by the personnel, cannot be compromised in any manner. The petitioner having conducted himself in a manner that is unacceptable to the conduct and discipline of the Force and having earned four red ink entries, the order of discharge cannot be said to be disproportionate or excessive.
11) Having given due consideration to all the facts and circumstances of the case and also the order of the Hon'ble Supreme Court in passed in Civil Appeal No. 5616 of 2015, (Union of India WP(C) No. 279 of 2017 Page 4 of 5 and Others vrs Balwant Singh), and the order of discharge being as per the provisions and in terms of ROI 01/2004, read with Rule 24 of Chapter viii of Assam Rifles Manual and Section 11 (2) of Assam Rifles Act 2006 read with Rule 25 of Assam Rifles Rules 2010, there is no infirmity with the impugned order which is accordingly upheld and the writ petition is dismissed.
JUDGE Meghalaya 02.05.2019 "V. Lyndem PS"
WP(C) No. 279 of 2017 Page 5 of 5