Gauhati High Court
Chandra Shekhar vs The Union Of India on 3 June, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/12
GAHC010013342018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/441/2018
CHANDRA SHEKHAR
PRESENTLY RESIDING AT JAYA NAGAR, KHANAPARA, GHY-22, ASSAM.
DISMISSED FROM 13 ASSAM RIFLES C/O 99 APO
(PERMANENT R/O-VILL AND P.O. MAJHWARI, P.S. SIMARI, DIST- BUXAR,
BIHAR)
VERSUS
THE UNION OF INDIA
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-110001
2:THE DIRECTOR GENERAL OF ASSAM RIFLES
LITKOR
SHILLONG
MEGHALAY
3:THE COMMANDANT 13TH ASSAM RIFLES
HEADQUARTER COMPANY
C/O-99APO
PIN-93203
Advocate for the Petitioner : MS. S BORA
Advocate for the Respondent : ASSTT.S.G.I.
Page No.# 2/12
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 03.06.2022 Heard Ms. S. Bora, learned counsel for the petitioner. Also heard Mr. C.K.S. Baruah, learned CGC appearing for the respondents.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing of the trial of the petitioner held by the Summary Assam Rifles Court on 30.11.2017, which has led to dismissal of the petitioner by an order passed on the same day and the petitioner has also prayed for a direction to reinstate him in service as Havildar/Clerk, 13 Assam Rifles.
3. The case is in very narrow campus. It would be sufficient to indicate that the petitioner, while serving as a Havildar/Clerk in 13 Assam Rifles, then posted in Chesewama, Nagaland had gone to his home with 30 (thirty) days sanctioned leave, plus 6 (six) day's journey period w.e.f. 19.01.2011 to 23.02.2011. It is projected that the mother of the petitioner was hospitalized on 17.02.2011 and although the petitioner had made a telephonic request for extension of leave, by 10 (ten) days, the Commandant, 13 Assam Rifles (respondent no.3) did not extend the leave. Resultantly, when the petitioner had reported for his duty on 03.03.2011, the respondent no.3 did not allow the petitioner to enter into the main gate of the unit Headquarter. On 10.01.2016, the petitioner had reported at the Assam Rifles Transit Camp and through a convoy, entered the Headquarter of 13 Bn. Assam Rifles. By such time, the petitioner had overstayed of his leave by 1782 days. Thereafter, the Summary Page No.# 3/12 Assam Rifles Court (SARC for short) was held in respect of the petitioner and he was punished with "Severe reprimand and forfeiture of pay and allowance for period of three months" by Col. Rajesh Grover, Comdt. 13 Assam Rifles on 01.05.2017. The absence period of 1782 days from 24.02.2011 to 10.01.2016 AN was regularized and the petitioner was also awarded with the punishment of "rigorous imprisonment of 89 (eighty nine) days in force custody". The leave period was accordingly regularized by granting EL/EOL/HPL. The Col. Commandant, by a certificate dated 28.08.2017, had recorded that the punishment of the petitioner was just as per the existing rule. On 23.11.2017, the petitioner was served with a notice by the Deputy Commandant Officiating Adjutant 13 Assam Rifles, informing the petitioner that he would once again be tried by the SARC, under section 26(b) of the Assam Rifles Act for absenting himself for 1782 days. The SARC proceedings took place on 30.11.2017 and as indicated above, the petitioner was awarded with the punishment of dismissal from service.
4. The learned counsel for the petitioner has referred to the provisions of section 97 and section 136 of the Assam Rifles Act, 2006 (hereinafter referred to as the '2006 Act') and it is submitted that there is prohibition of second trial under section 97 and section 136(1) of the 2006 Act, which provides that the finding and sentence of the SARC is not required to be confirmed, but may be carried out forthwith. Accordingly, it is submitted that second trial of the petitioner was hit by the provisions of Article 20(2) of the Constitution of India.
5. The learned CGC, per contra, has submitted that the competent Page No.# 4/12 authority has relied on the jurisdiction conferred under section 137 of the 2006 Act to set aside the proceedings of the said Court and has also referred to Rule 114 (5) of the Assam Rifles Rules, 2010.
6. It is further submitted that the petitioner was not put to suffer rigorous imprisonment for 89 (eighty nine) days and by referring to the additional-affidavit filed by the SO 1 (Legal), Directorate General, Assam Rifles, Shillong, which was filed on behalf of the respondents, it is submitted that the punishment that was given to the petitioner during the year 2017 was under
26(a) of the 2006 Act for absenting without leave. Accordingly, it is submitted that the competent authority of the Assam Rifles had correctly exercised the power to decide the sentence awarded by the SARC and the SARC had rightly commenced the re-trial after cancellation of the previous trial.
7. The relevant provisions of section 96, 97, 136 and 137 of the 2006 Act and section 114 of the 2010 Rules, which was notified in the Official Gazette on 25.08.2010 are quoted below:
"96. Power of a Summary Assam Rifles Court.--(1) Subject to the provisions of sub-section (2), a Summary Assam Rifles Court may try any offence punishable under this Act.
(2) When there is no grave reason for immediate action and reference can, without detriment to discipline, be made to the officer empowered to convene a Petty Assam Rifles Court for the trial of the alleged offender, an officer holding a Summary Assam Rifles Court shall not try without such reference any offence punishable under any of the sections 21, 24 and 55, or any offence against the officer holding the Court.
(3) A Summary Assam Rifles Court may try any person subject to this Act and under the command of the officer holding the Court, except an officer or a subordinate officer.
(4) A Summary Assam Rifles Court may pass any sentence which may be Page No.# 5/12 passed under this Act except the sentence of death or if imprisonment for a term exceeding the limit specified in sub-section (5). (5) The limit referred to in sub-section (4) shall be--
(a) one year, if the officer holding the Assam Rifles Court has held either the post of Commandant or a post declared by the Central Government, by notification, to be equivalent thereto for a period of not less than three years or holds a post of higher rank than either of the said posts; and
(b) three months, in any other case.
97. Prohibition of second trial.--(1) When any person subject to this Act has been acquitted or convicted of an offence by an Assam Rifles Court or by a criminal court or has been dealt with under section 62 or section 64 or section 65 or section 66, he shall not be liable to be tried again for the same offence by an Assam Rifles Court or dealt with under the said sections. (2) When any person, subject to this Act has been acquitted or convicted of an offence by an Assam Rifles Court or has been dealt with under section 62 or section 64 or section 65 or section 66, he shall not be liable to be tried again by a criminal court for the same offence or on the same facts.
136. Finding and sentence of a Summary Assam Rifles Court.-- (1) Save as otherwise provided in sub-section (2), the finding and sentence of a Summary Assam Rifles Court shall not require to be confirmed, but may be carried out forthwith.
(2) If the officer holding the trial is of the rank of Deputy Commandant or of a rank declared under clause (a) of sub-section (5) of section 96 as equivalent thereto or of a lower rank and has held such rank for less than five years, he shall not, except on active duty, carry into effect any sentence, until it has received the approval of an officer not below the rank of a Deputy Inspector-
General.
137. Transmission of proceedings of Summary Assam Rifles Court. -- The proceedings of every Summary Assam Rifles Court shall, without delay, be forwarded to the officer not below the rank of Deputy Inspector-General within whose command the trial was held, or to the prescribed officer, and such officer or the Director General or any officer empowered by him in this behalf may, for reasons based on the merits of the case, but not on merely technical grounds, set aside the proceedings, or reduce the sentence to any other Page No.# 6/12 sentence which the court might have passed.
114. Confirmation.― (1) When a confirming authority receives the record of the proceedings of a court, it shall record its decision thereon and on any sentence and any order which the court may have made under section 127 on the record of the proceedings in the form set out in Appendix-X and such record of his decision shall form part of the record of the proceedings. (2) When a court has accepted a plea of guilty made under rule 85 the confirming authority may confirm its finding notwithstanding that the court has accepted the plea without the concurrence of the convening authority, if, in the opinion of the confirming authority, it is in the interest of justice to do so. (3) (a) When a court has rejected a plea to the jurisdiction of the court or a plea in bar of trial or has over-ruled an objection to a charge, it shall not be necessary for the confirming authority to approve specifically the decision of the court, but its approval shall be implied from its confirming the finding on the charge to which the plea or objection relates.
(b) where it disapproves the decision of the court to reject the plea or to over rule the objection it shall withhold confirmation of the finding on the charge to which the plea or objection relates.
(4) A confirming authority may state its reasons for withholding confirmation in any case, but if it withholds confirmation where a court has rejected a plea to the jurisdiction or plea in bar of trial or has over ruled an objection to the charges because it disapproves this decision of the court, it shall record its decision under sub-rule (1) stating the reasons for withholding its confirmation. (5) Where the sentence of court is improperly expressed, the confirming authority may, in confirming the sentence, vary the form thereof so that it shall be properly expressed; and if the punishment awarded by the sentence is in excess of the punishment authorised by law, the confirming authority may vary the sentence so that the sentence shall not be in excess of the punishment authorised by law; and the confirming authority may confirm the finding and the sentence, as so varied, of the court.
(6) Whenever it appears that there is sufficient evidence on a plea of guilty under either sub-rule(1) or sub-rule(2) of rule 85 to justify the finding of the court, such finding and any lawful sentence consequent thereon may be confirmed and if confirmed shall be valid, notwithstanding any deviation from these rules if the accused has not been prejudiced by such deviation.
Page No.# 7/12 (7) The confirming authority may reserve confirmation to superior authority if so required owing to such restrictions, reservations or conditions as contained in warrant issued under section 132."
8. In paragraph 5 of the additional-affidavit filed by the respondents, reference is made to the provisions of section 26 of the 2006 Act as well as Army Act. It would be now appropriate to quote section 26 of the 2006 Act as well as section 26 of the Army Act, 1950.
"26. Absence without leave.--Any person subject to this Act who commits any of the following offences, that is to say,--
(a) absents himself without leave; or
(b) without sufficient cause, overstays leave granted to him; or
(c) being on leave of absence and having received information from the appropriate authority that any battalion or part thereof or any other unit of the Force, to which he belongs, has been ordered on active duty, fails, without sufficient cause, to rejoin without delay; or
(d) without sufficient cause, fails to appear at the time fixed at the parade or place appointed for exercise or duty; or
(e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march ; or
(f) when in camp or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or
(g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there, shall, on conviction by an Assam Rifles Court, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.
26. Remedy of aggrieved persons other than officers.- (1) Any person subject to this Act other than an officer who deems himself wronged by any superior or other officer may, if not attached to a troop or company, complain to the officer under whose command or orders he is serving; and may, if attached to a troop or company, complain to the officer commanding the same. (2) When the officer complained against is the officer to whom any complaint Page No.# 8/12 should, under, sub-section (1), be preferred, the aggrieved person may complain to such officer's next superior officer.
(3) Every officer receiving any such complaint shall make as complete an investigation into it as may be possible for giving full redress to the complainant; or, when necessary, refer the complaint to superior authority. (4) Every such complaint shall be preferred in such manner as may from time to time be specified by the proper authority.
(5) The Central Government may revise any decision by the (Chief of the Army Staff) under sub-section (2), but, subject thereto, the decision of the (Chief of the Army Staff) shall be final."
9. From the aforesaid provisions as quoted above, it is seen that under section 86(c) of the Assam Rifles Act, 2006, the SARC is provided as one kind of Assam Rifles Courts for the purpose of the Act. The power of the SARC is provided for in section 96 of the said Act. The SARC in this case was presided by the Col. Commandant of 13 Bn. Assam Rifles. As indicated above, there is no provision of 26(a) in the Army Act, whereas section 26(a) of the 2006 Act refers to absence of a person who is subjected to the 2006 Act, who has absented himself without leave.
10. In the order dated 09.05.2017, passed by the Commandant, 13 Assam Rifles on 01.05.2017, as notified by order dated 11.05.2017 (Annexure-
1), it contains reference to the effect that the petitioner was tried by the SARC under section 26(b) of the 2006 Act, which provides that if a person who is subjected to the said Act, without sufficient cause, overstays leave granted to him, would be liable for punishment as provided in section 26(g) of the said 2006 Act.
11. Under the provisions of section 136(1) of the 2006 Act, save as Page No.# 9/12 otherwise provided in sub-section (2), the finding and sentence of a SARC is not required to be confirmed, but may carried out forthwith, nonetheless, under section 137 thereof, the proceedings of every SARC shall, without delay, is required to be forwarded to the officer not below the rank of Deputy Inspector- General within whose command the trial was held, or to the prescribed officer, and such officer or the Director-General or any officer empowered by him in this behalf may, who for reasons based on the merits of the case, but not on merely technical grounds, set aside the proceedings, or reduce the sentence to any other sentence which the Court might have passed.
12. In this regard, the learned CGC has referred to an order dated 21.10.2017 (Annexure-5 to the affidavit-in-opposition), wherein it is mentioned as follows:
"CANCELLATION Ref 13 AR part II order No 50 (a)/2017 Ser no 1 (a) (b) dated 09 May 2017.
Indl tried by SARC under Assam Rifles Act 2006 Section - 26 (b) and punishment awarded "Severe reprimand forfeiture of pay C/5016780P Hav (Clk) and allowance for the period of three months Chandra Shekhar Col Rajesh Grover, Comdt 13 Assam Rifles on 01 May 2017 hereby treated as cancelled due to set aside the said SARC proceeding vide HW 25 Sect AR letter 25 Sect/A/A2/2288/2017/227 dt 13 Nov 2017 (Copy att)."
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13. The said order does not indicate any reason for setting aside the proceedings of the SARC. For reasons best known to the respondents, although there is a reference to order of the Headquarter dated 30.11.2017, the copy of the said order has not been placed on record.
14. From the hereinbefore quoted order dated 21.10.2017, there is once again a reflection that the petitioner was tried by the SARC under section 26(b) of the 2006 Act. Therefore, the Court has no hesitation to hold that the statement made in paragraph 5 of the additional-affidavit by Major Abhimanyu Singh Sidhu, working as SO 1 (Legal), Directorate General, Assam Rifles, stating therein that the trial took place under the Army Act appears to be false statement before the Court, because, not only the order of the Colonel Commandant, but also in the order dated 21.10.2017, relied upon by the respondents, reference is made to offence under section 26(b) of the 2006 Act.
15. Although the learned CGC has submitted that there was a gross dereliction of duty on the part of the petitioner to absent himself for 1782 days without obtaining any leave, which was an offence committed for overstaying on leave and is required to be punished with removal from service, but in the present case in hand, the SARC by an order dated 01.05.2017, as communicated by letter dated 11.05.2017, the petitioner was awarded rigorous imprisonment of 89 (eighty nine) days and his leave of 1782 days was regularized. But in view of the provisions of section 97 of the 2006 Act, a second trial of the petitioner could not have been proceeded with, save and except by disclosing reasons and not on merely technical ground. Thus, the proceeding of Page No.# 11/12 SARC, including order dated 01.05.2017, was not validly set aside under section 137 of the 2006 Act. In the present case in hand, no reason has been assigned for cancellation of the proceeding of SARC held on 01.05.2017 as communicated by letter dated 11.05.2017 (Annexure-1).
16. Rule 114 of the Assam Rifles Rules, 2010, which is relied upon by the learned CGC is in respect of the matter of confirmation. As already indicated above, under section 136(1) of the 2006 Act, an order of the SARC is not required to be confirmed. Therefore, the Court is of the considered opinion that sub-rule (5) of Rule 114 of the Assam Rifles Rules, 2010 would have no application in the present case in hand.
17. Therefore, the Court is inclined to hold that the second trial of the petitioner was carried out is in violation of the provisions of section 137 of the 2006 Act. Therefore, in view of section 97(1) of the said Act, the punishment of removal of the petitioner from service as ordered on 30.11.2017 (Annexure-5), is hereby set aside and quashed.
18. Resultantly, the petitioner would be entitled to be reinstated in service. However, as the petitioner has absented himself for 1782 days, the Court is not inclined to provide for any back wages to the petitioner for the period he did not render any service.
19. The reinstatement of the petitioner in service shall be done within a period of 2 (two) months from the date of service of certified copy of the order on the Commandant, 13 Assam Rifles. In addition, the petitioner is also permitted to serve notice on the said authority by e-mail.
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20. This writ petition stands allowed to the extent as indicated above. There shall be no order as to cost.
21. In view of the finding of the Court that statements made in paragraph 5 of the additional-affidavit filed on behalf of the respondents by Major Abhimanyu Singh Sidhu is false, the Court is inclined to direct the Registry to register an interlocutory application in connection with this disposed of writ petition by showing him as the opposite party.
22. In connection with the said interlocutory application, the Court is inclined to issue notice on Major Abhimanyu Singh Sidhu, SO 1 (Legal), Directorate General, Assam Rifles, Shillong-793011 to show-cause as to why statements made in paragraph 5 of the additional affidavit, filed on 07.08.2019 should not be acted upon as a false statement made before the Court in violation of section 195 read with section 340 of the Cr.P.C.
23. Notice is made returnable on 20.07.2022.
JUDGE Comparing Assistant