High Court
Case Details
WP(C) 2013/2004 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. S. U. Mazumdar, learned counsel for the petitioner. Also heard Mr. N. Bora, learned CGC. The petitioner is aggrieved by the order dated 7.8.2003 (Annn exure-3) by which he was discharged from service (Rifleman/GD) being habitual of fender solder. The impugned order was preceded by the show cause notice dated 5 .6.2003 by which he was asked to show cause as to why action against him in term s of section 4 (a) of the Assam Rifles Act, 1941 read with ROI 4/99 and Para 24 of Chapter-VIII of Assam Rifles Manual should not be taken. In response to the s how cause notice, the petitioner submitted his reply (Annexure-2) urging for con tinuation of his service and not to dispense with the same on the ground of earn ing 4 (four) Red Ink Entries in his Service. There is no dispute that as per the provisions of the Rules, the competent autho rity is entitled to discharge the Assam Rifles Personnel on earning Four Red Ink Entries. In the instant case, the petitioner had earned four red ink entries in his ACR and was awarded with punishment, such as, 14 days RI; 20 days RI; 7 day s RI and 7 days RI respectively in respect of the offences committed on 1.4.2002 , 4.1.2003, 28.2.2003 and 12.5.2003 respectively. In Union of India Vs. Corporal A.K. Bakshi reported in (1996) 3 SCC 65, the Apex Court noticing the similar provisions in the Air Force Rules entitling discharg e from service of habitual offenders, held that such discharge did not amount to punitive removal. Similarly, in (2008) 3 SCC 386 (Union of India and others Raj esh Vyas), following the decision in A. K. Bakshi (Supra), interfering with the decision of the High Court held that the policy being to weed out under discipl ined personnel by discharging their simpliciter was not of punitive action. The Division Bench of this Court in Ravindra Yadav Vs. Union of India reported i n 2006 (4) GLT 381 upheld the discharge from service of the appellant on the gro und of incurring red entries. The plea that such discharge was violative of Arti cle 311 of the Constitution of India did not find favour of the Division Bench. While Mr. N. Borah, learned CGC submits that the petitioner having earne d four red ink entries on the assessment of the authority in the Assam Rifles, h e was a habitual offender and accordingly the impugned discharge order was passe d which was preceded by the aforementioned show cause notice, Mr. Mazumdar, lear ned counsel for the petitioner on the other hand placing reliance on the decisio n of the Division Bench reported in 2011 (5) GLT 640 (Balwant Singh Vs. Union of India) submits that under similar circumstances the petitioner involved in the said case having been directed to be reinstated in service with liberty to impos e lesser punishment balancing the interest of the organisation, the petitioner i s also entitled to similar treatment. I have considered the submissions made by the parties and have also gone through the entire materials on record. That there is a provision in the Service Rules entitling the Disciplinary Authority to discharge a Assam Rifles personnel upon incurring four red ink entries in his dossier is not in dispute. It is for the said authority to decide as to whether such red ink entries would entail dischar ge of the petitioner from service. As noted above, the impugned order of dischar ge was preceded by a show cause notice, in response to which the petitioner duly admitted the four red ink entries in his dossier and for that matter his miscon duct while in service. It is under similar circumstances and the Division Bench decision in Ravindra Yadav (Supra), upheld the order of discharge, more particul arly, when the incumbents were members of the disciplined force. In Balwant Singh (Supra), the Division Bench of this Court while interfering wit h the order of discharge that was passed on the ground of incurring four red ink entries was of the opinion that the particular discretion vested on the authori ty was not exercised in its due perspective. It was also held that the misconduc t attributed to the petitioner because of which he had earned four red ink entri es could not have entailed the penalty of discharge from service as the same was shocking to the gravity of the misconduct and the judicial conscience.
Decision
Mr. N. Borah, learned CGC submits that the decision in Balwant Singh (Supra) hav ing been passed without referring to the aforesaid two decisions of the Apex Cou rt and the Division Bench judgement in Ravindra Yadav (Supra), the said judgemen t is required to be dealt per incuriam. On the other hand Mr. S. U. Mazumdar, le arned counsel for the petitioner submits that the said judgement is binding on t his Court. Needless to say that a decision will have to be understood in the back ground of the fact-situation involved in the case. In the Division Bench judgement in Bal want Singh (Supra), it was found that the particular discretion exercised toward s discharge of the petitioner was not exercised with due diligence. In the insta nt case, the petitioner was apprised of the four red ink entries in the service Dossier and he was also asked to show cause as to why in reference to the said f our red ink entries, his service should not be dispensed with. In the reply subm itted by the petitioner (Annexure-2), he could not make any justification not to dispense with his service but only prayed for retention of the job. It was in s uch circumstances, the impugned order came to be issued on 7.8.2003 discharging the petitioner from service. By now, almost 10(ten) years have gone by. Even in Balwant Singh (Supra) while directing reinstatement of the petitioner in service , same was subject to assessment of physical fitness of the petitioner. For all the aforesaid reasons I do not find any merit in the writ petition and a ccordingly dismissed. There shall be no order as to costs.