Gauhati High Court
Vikramjeet Singh Chib vs The Union Of India And 2 Ors on 14 December, 2023
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/15
GAHC010174582015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/30/2015
VIKRAMJEET SINGH CHIB
S/O- BAJ SINGH CHIB, R/O- VILLAGE FLORA, P.S.- DOMANA, DIST.-
JAMMU J and K.
VERSUS
THE UNION OF INDIA and 2 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF DEFENCE, NEW
DELHI.
2:THE DY. INSPECTOR GENERAL
SECTOR HEAD QUARTER
SSB
TEZPUR
DIST.- SONITPUR
ASSAM.
3:THE COMMANDANT
33 BN SSB
RANGIA
DIST.- KAMRUP
ASSAM
Advocate for the Petitioner : MR.J I BORBHUIYA
Advocate for the Respondent : MR.D K SAIKIA
Page No.# 2/15 BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA JUDGMENT AND ORDER (CAV) Date : 14-12-2023 Heard Mr. J. I. Borbhuiya, learned counsel appearing for the petitioner. Also heard Ms. B. Sarma, learned CGC appearing for the respondents.
2. The instant writ petition is directed against the discharge order dated 28.02.2011, discharging the petitioner from his services as a constable under the Sashatra Seema Bal, SSB, as well as the order dated 29.04.2013, dismissing the appeal preferred by the petitioner against the discharge order as being time barred. The further prayer in the writ petition is to reinstate the petitioner in his service by regularizing the period undergone in litigation by the petitioner and for release of all arrear salary and allowances with effect from April, 2010.
3. The petitioner was employed as a Constable (General duty) bearing number 060404828 in 33 Battalion, SSB, Rangia. The case projected by the petitioner in the writ petition is that during his tenure of service he had numerous matrimonial problems and was facing number of cases filed by his wife, Smti. Urvashi Bajju at Jammu. The petitioner was a permanent resident of the district Page No.# 3/15 of Jammu (J & K) and during his tenure he was posted at Rangia at the relevant point in time. Because of these matrimonial issues, the petitioner was required to go on leave which although initially was granted for some time, was subsequently denied as the petitioner was shown to have not reported for duties after being permitted to be on leave by earlier orders passed by the superior officers. The petitioner states that he being a Constable General Duty, the various technicalities which are required to be followed for a person to be on leave the petitioner was not properly apprised of the procedures required to be followed and maintained in respect of leave granted. Because of certain technicalities which could not be fulfilled by the petitioner at the relevant point in time he was put to notice and was also awarded punishment for overstaying his leave. This absence period of the petitioner was subsequently however regularized and he was also awarded punishment of line confinement as well as pack drill and extra guard duties. The petitioner was thereafter served with a show-cause notice dated 27.12.2010, whereby the petitioner was asked to make a representation within 15 (fifteen) days from the date of receipt of the show- cause notice. The petitioner further contends that pursuant to issuance of the show-cause notice, without following the procedure prescribed, the petitioner was discharged from service by the impugned Order dated 28.02.2011. It is submitted that although the representation as required in terms of the show-
Page No.# 4/15 cause notice, was submitted by the petitioner, a copy of the same was not retained by the petitioner and therefore could not be enclosed the present writ petition. The appeal preferred by the petitioner was also dismissed by order dated 28.02.2011 on the ground of limitation without entering into the merits of the appeal.
4. It is further contended that the necessary steps in respect of the show- cause notice as well as the appeal against the order of dismissal, could not be taken in due time. In view of the criminal complaints filed by the wife of the petitioner before the court of the Chief Judicial Magistrate, Jammu (J & K) as well as a case for dissolution of the marriage under Section 13 of the Hindu Marriage Act, which was filed before the Additional District Judge, Jammu (J & K). The petitioner had also filed his application for restoration of conjugal rights which he was pursuing before the court of the Learned Additional District Judge (Matrimonial Cases), Jammu (J & K). The petitioner would not prefer the appeal in time because of these various reasons.
5. The petitioner, thereafter, preferred an application before the Central Administrative Tribunal (CAT), Chandigarh Bench, Chandigarh, the Original Application No. 061/00012/2014. The same, however, was not entertained by the CAT, Chandigarh Bench, Chandigarh due to want of jurisdiction under the said Tribunal in terms of Administrative Tribunals Act, 1985 and the said Original Page No.# 5/15 Application No. 061/00012/2014 came to be dismissed.
6. It is further submitted that for the same misconduct alleged in the show- cause Notice, the authorities had inflicted two punishments. It is submitted that the authorities has imposed two punishments, namely, punishment of pack drill for 28 days as well as the dismissal from service by the impugned discharge order 28.02.2011, consequently, such action of the respondent authorities as the effect of exposing the petitioner to double jeopardy. It is the further submission of the petitioner that the petitioner was not granted his salary and allowances with effect from April, 2010 till the issuance of the impugned discharge order dated 28.02.2011, which is bad in law. That apart, no enquiry report or any report pursuant to the show-cause Notice and prior to imposition of the penalty, namely, discharge from service was furnished to the petitioner. And therefore, the same is violating of provisions of law as well as contrary to the avowed principles of fair play and natural justice. Alternatively, the learned counsel for the petitioner submits that since the petitioner has already been awarded punishment earlier, the imposition of penalty of dismissal from service is too harsh to be imposed on the petitioner and as such, the punishment imposed is disproportionate and therefore, should be interfered with and appropriate orders thereon be passed by this court.
7. In support of his contentions, the learned counsel for the petitioner has Page No.# 6/15 relied upon the Judgment of- Union of India and others -Vs- Mahammad Ramzan Khan reported in (1991) 1 SCC 588; Vijay Singh -Vs- Union of India and others reported in (2007) 9 SCC 63, Tilak Chand Magatram Obhan Vs Kamala Prasad Shukla and Others reported in (1995) Supplementary (1) SCC 21 and Central Bank of India Vs C. Bernard reported in (1991) 1 SCC 319.
8. The respondents have contested the case of the petitioner by filing their affidavit in opposition. Relying on the affidavit filed by the respondents, the learned counsel for the respondents disputes the contentions of the petitioner and submits that the petitioner habitually overstayed his leave sanction and such conduct of the petitioner reflects that he has resorted to indiscipline inspite of the reprimands as well as punishments issued earlier. The petitioner has failed to rectify himself and has proved himself to be a person whose repeated acts of indiscipline had been proven to be incorrigible.
9. Under such circumstances, the department issued the show-cause notice and the procedure prescribed under the provisions of law has been resorted to and upon arriving at the conclusion that the charges alleged against the petitioner have been found to be proved, the disciplinary authority had rightly imposed the order of discharge/dismissal on the petitioner. Since the entire proceeding was conducted in terms of the provisions prescribed under the act and the rules, there is no infirmity in the procedure adopted by the Department, Page No.# 7/15 as alleged by the petitioner, and the contentions of the petitioner being not substantially supported by required facts and documents, the writ petition merits dismissal.
10. Learned counsel for the respondent submits that the petitioner, having been found to be an officer highly indiscipline, his discharged or dismissal from the service is justified. In support her contentions, the learned counsel for the respondent has relied upon the Judgment of the Apex court rendered in Ex Sepoy Madan Prasad Vs Union of India and others reported in 2023 INSC 656.
11. The learned counsels for the parties have been heard and the pleadings have been carefully perused. Relevant records of the proceedings conducted against the petitioner have also been placed before this court.
12. The Sashatra Seema Bal, SSB, is an Armed Force of the Union, which is constituted under Section 4 of the Sashatra Seema Bal, SSB Act, 2007 for ensuring the security of the borders of India and performing such duties as may be entrusted to it by the Central Government. The objects and reasons of the Sashatra Seema Bal, SSB Act, 2007 states that the SSB is charged with guarding of Indo Nepal and Indo Bhutan borders and the act is also required to ensure that standards of efficiency and discipline of the Force are of a high order. The General Superintendent's direction and control of the force vests in and is exercised by the Central Government and the command and supervision of the Page No.# 8/15 force vests in an officer to be appointed by the Central Government as the Director General of the Force.
13. Under chapter III of the Sashatra Seema Bal, SSB Act, 2007, the various offenses and the punishments are prescribed. All punishments which are prescribed under the Act are to be imposed by a Force Court. Section 21 provides punishment on conviction by a Force Court to suffer imprisonment for a term which may extend to 3 (three) years or less punishment as is prescribed under the Act, for offenses which includes absence without leave and overstaying leave granted without sufficient cause.
14. Chapter IV of the Sashatra Seema Bal, SSB Act, 2007 prescribed the punishments to be imposed by Force Courts. Section 51 (c) prescribes dismissal or removal from service as one of the punishments which can be imposed by the Force Courts. Section 53 permits combination of punishments. Under the said Section, the Force Court may award in addition to, or without, any other punishment, the punishments specified in Clause 'C' of sub-section 1 of Section
51.
15. Chapter VII of the Sashatra Seema Bal, SSB Act, 2007 defines under various sections the different kinds of Force Courts and the power and composition as well as dissolution of the Force Courts. Under section 76 of the Act, there are three kinds of Force Courts, namely, (a) General Force Courts; (b) Page No.# 9/15 Petty Force Courts and (c) Summary Force Courts. The powers and functions of each Force Courts are specifically described under the Act.
16. A set of rules, namely, the Sashatra Seema Bal Rules, 2009, has also been framed to implement the provisions of the Act.
17. In so far as the present writ petition is concerned, the proceedings were conducted by Court of enquiry and thereupon the punishments were imposed by the disciplinary authority. The affidavits filed by the respondent Nos.1, 2 and 3, including a rejoinder affidavit states that a court of enquiry was ordered against the petitioner to find out his suitability to be retained in government service. The petitioner being put to notice about the Court of enquiry, he duly participated in the said Court of enquiry and he was rendered ample opportunity to put up his defence. The Court of enquiry, upon going through the past service record and considering the materials found, the petitioner was unsuitable to be retained in government service. On the basis of the findings of the Court of enquiry, the commanding officer has served with the show-cause notice asking the petitioner to submit representation as to why penalty of 'dismissal from service' should not be imposed for the offence committed by him. The explanation was submitted by the petitioner, which was not considered sufficient and the disciplinary authority is decided to discharge the petitioner from the government service on administrative ground as provided under the Page No.# 10/15 Sashastra Seema Bal (SSB) Act and Rules.
18. It is the pleaded case of the Department that the petitioner was terminated from service under the provisions of Rule 18 and 21 of the Sashastra Seema Bal (SSB) Rules on administrative ground.
19. The Sashastra Seema Bal (SSB) Act clearly lays down the procedure of constitution of force courts under Section 76 as well as the powers of the respective force courts. By which authority the force courts are to be constituted and what powers these force courts are required to exercise are clearly and categorically prescribed under the Act.
20. Perusal of the records placed before the Court as well as the pleadings available does not reflect that the authorities constituted any force court as prescribed under the provisions of the Act. What was constituted was a court of enquiry. From the records of the Department as well as the pleadings available on record, it is not clear as to whether this court of enquiry is a 'Force Court' as prescribed under Section 76. If so, then whether a court of enquiry is competent to recommend the punishment as prescribed under the Act. From the records of the department (from page 133 of the Records) it is seen that the court of Inquiry came to the finding that the petitioner willfully absented from leave without sufficient cause and overstayed leave granted to him. That apart when in camp or elsewhere he is found beyond limits fixed or in any place without Page No.# 11/15 pass or written leave from his superior officer, without leave from his superior officer or without due cause, absented himself from training institution. The court of Inquiry therefore recommended suitable disciplinary action be initiated against the individual under Section 21 (A), 21 (B), 21 (F) and 21 (G) of the Sashastra Seema Bal (SSB) Act.
22. A perusal of Section 21 of the Sashatra Seema Bal, SSB Act, 2007 reveals that any offence under Section 21, if found prove, will invite a penalty to suffer imprisonment for a term which may extend to three years or such less punishment as in the Act mentioned.
23. As discussed above, there is a specific provision under the Act under Section 51 which provides for punishment by the Force Courts and which includes dismissal or removal from service.
24. Under Section 53, the force courts can impose an award any punishment in combination with the punishment prescribed under Section 51 (C), which is dismissal or removal from service. However, what is to be taken note of is that under Section 76 there are only 3 (three) courts which are prescribed, namely General Force Courts, Petty Force Courts and Summary Force Courts. Under the said Chapter VII, the procedure and the powers for constitution of each force court is prescribed. There is no provision for instituting a court of enquiry and/or powers prescribed under the act attributed to any court of enquiry for Page No.# 12/15 imposition of punishments under the Sashastra Seema Bal (SSB) Act, 2007. Although the learned counsel for the respondent attempted to persuade this court that the Court of enquiry, which was constituted and which recommended imposition of punishment, comprises of 3 (three) Officers as is evident from the record, and it is a competent authority to conduct enquiry and recommend punishment, the learned counsel for the respondent failed to point out to the relevant provisions under the act of the rules or any notification that may have been issued by the Central Government to that effect. Even assuming that the competent authority for securing the ends of justice, may institute a court of Inquiry into the allegations, it is seen that the recommendations of the court of Inquiry is for taking disciplinary action against the individual under Section 21(A), 21 (B), 21 (F) and 21 (G) of the Sashastra Seema Bal (SSB) Act, 2007.
25. Under such circumstances, the order of dismissal or removal from service by the Commandant does not appear to be as per the procedure prescribed under the provisions of the Sashastra Seema Bal (SSB) Act, 2007.
26. As discussed above, the Sashastra Seema Bal (SSB) Act, 2007 elaborately prescribes the manner and the procedure under which punishments are to be imposed on delinquent personnel of the force. Even if, the recommendations of the court of enquiry are to be accepted, the commandant on its own does not appear to be empowered under the provisions of the Sashastra Seema Bal (SSB) Page No.# 13/15 Act to unilaterally impose the punishment of dismissal or removal from service as has been done by the impugned order.
27. As per Section 51 of the Act, the punishment for dismissal from service must be imposed by the force courts and the various kinds of force courts, as well as the procedure prescribed for constitution and powers to be imposed by such force courts are specified elaborately under Chapter VII of the Sashastra Seema Bal (SSB) Act. In the absence of any such material before the court to substantiate the impugned order of dismissal dated 28.02.2011 passed by commandant that the same has been done as per the prescriptions laid down by the Act of 2007. This court will have to unhesitantly hold that the impugned order of dismissal passed by the commandant being contrary to the provisions of law cannot be sustained. The impugned order of dismissal of the petitioner issued by the commandant is therefore interfered with and set aside. The petitioner will be reinstated in service forthwith with all back wages and arrears of pay as applicable under the provisions of law. The department is, however, granted liberty to proceed against the petitioner in respect of the charges made strictly in terms of the procedure prescribed under the act of 2007 read with the Sashastra Seema Bal (SSB) Rules, if the department so desires.
28. The judgments relied upon by the petitioner lay down the general propositions required to be followed by the disciplinary authority while Page No.# 14/15 conducting the enquiry against a detailed training personnel. There is no quarrel with the propositions laid down by the Apex Court in the judgments relied upon by the petitioner. As have been discussed above upon due perusal of the relevant records and the pleadings available, it is seen that the impugned order of dismissal or discharge issued by the commandant, is contrary to the procedure prescribed under the Sashastra Seema Bal (SSB) act, 2007, and therefore the same cannot be sustained. Where the mandatory provisions prescribed under the act read with the rules have been found to be violated and the procedure prescribed has been found not to have been followed by the department, the order of dismissal will held to be contrary to the mandatory provisions prescribed and therefore not in consonance with the provisions of law. The order of dismissal, therefore being bad in law, cannot be sustained and is therefore interfered with. In so far as the judgment relied upon by the learned counsel for the respondent is concerned, while it is true that discipline is a non- negotiable condition of service insofar as a member of an armed force is concerned. However, the fact remains that where there are statutory procedures prescribed in law, mandatorily required to be followed by the disciplinary authorities and the same having been found not to be followed, then the order of dismissal cannot be sustained even if it is found that the petitioner has been held to be indisciplined. The very fact that the procedure prescribed under this Page No.# 15/15 statute has not been followed by the authority, the same is arbitrary and is hit by Article 14 of the Constitution of India. Consequently, while this court respectfully agrees with the findings of the Apex Court that discipline is an implicit hallmark on the armed forces and a non-negotiable condition of service, in view of the non-adherence of the statutory provisions mandated under the act of 2007, read with the Sashastra Seema Bal (SSB) Rules of 2007, this Judgment does not come to the aid of the respondents in the peculiar facts and circumstances of the case.
29. In view of the above finding, the writ petition stands allowed. The impugned orders of dismissal being set aside, the order passed by the appellate authority is also set aside.
30. Interim orders, if any stands vacated. Any pending Interlocutory Application shall stands disposed of.
JUDGE Comparing Assistant