The Union of India v. India, North Block, Assam Rifles

HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR BEFORE

22.08.2022 Sanjay Kumar (C.J.): [1] W.P. (C) No. 170 of 2018 was filed by Dr. Kam Deo Das, an Officer in the Assam Rifles, and was disposed of by a learned Judge of this Court, vide order dated 25.07.2018. Therein, his grievance was that his statutory appeal against the order of compulsory retirement passed against him was not disposed of in accordance with due procedure. The appeal was, in fact, rejected by the Officiating Director General of Assam Rifles, vide order dated 15.11.2016. The learned counsel who appeared for the authorities conceded the point before the learned Judge and stated that the appeal ought to have been decided by the Central Government in terms of Rule 28 of the Assam Rifles Rules, 2010 (for brevity, ‘the Rules of 2010’). Noting the same, the learned Judge observed that the said Rule mandated that the statutory appeal preferred by an Officer had to be decided by the Central Government and as the petitioner’s appeal had not been disposed of by the Central Government, the order dated 15.11.2016 rejecting his appeal was set aside and his appeal dated 20.09.2016 was directed to be considered by the Central Government, being the competent appellate authority under Rule 28(2) of the Rules of 2010, as expeditiously as possible and, preferably, within two months from that day. [2] Complaining of violation of the aforestated order, Dr.

Kam Deo Das filed CONT. CAS (C) No. 95 of 2019 in May, 2019. Even before he did so, the Union of India and the Director General of Assam Rifles, Shillong, filed Review Petition No. 6 of 2019 seeking review of the order dated 25.07.2018 passed in W.P. (C) No. 170 of 2018. MC (Review. Pet.) No. 5 of 2019 was filed by them seeking stay of the operation of the said order. [3] Heard Mr. S. Kaminikumar, learned CGC, appearing for the petitioners in the review petition and the respondent in the contempt case; and Mr. Kaminthang Khongsai, learned counsel, appearing for Dr. Kam Deo Das. Review. Pet. No. 6 of 2019 & Ors. [4] It is a matter of record that, while Dr. Kam Deo Das was serving as a Deputy Commandant in the Assam Rifles at 7 Assam Rifles HQ, Churachandpur, Manipur, he was subjected to a Court of Inquiry in relation to his failure to report at the Crime Branch, New Delhi, in December, 2011, and his case was directed to be tried by the General Assam Rifles Court.

Ultimately, the General Assam Rifles Court recommended that he should be compulsorily retired from service, vide order dated 26.02.2016. The said recommendation was confirmed by the Brigadier Commandant of 27 Sector Assam Rifles and order dated 12.07.2016 was issued giving effect to the compulsory retirement of Dr. Kam Deo Das. Aggrieved thereby, Dr. Kam Deo Das claims to have filed a statutory appeal on

20.09.2016. The same was rejected by the Directorate General, Assam Rifles, Shillong, speaking through the Major General, who was officiating as the Director General of Assam Rifles at that time, vide order dated 15.11.2016. This order reflects that Dr. Kam Deo Das was tried by General Assam Rifles Court for absenting himself without leave and was recommended the punishment of compulsory retirement from service, vide order dated 26.02.2016. This sentence was subject to confirmation by the competent authority and received such confirmation on 09.07.2016. The order was promulgated on 12.07.2016 by the Commandant of 7 Assam Rifles. As the due procedure had been strictly adhered to and the action taken by the authorities was found to be justifiable and was not arbitrary or biased in nature, the Officiating Director General, Assam Rifles, held that the sentence was fair and legal and did not require interference. [5] Mr.

S. Kaminikumar, learned CGC, would argue that Rule 28 of the Rules of 2010, which was pressed into service during the hearing of the writ petition, has no relevance and that the learned counsel who appeared for the review petitioners at that time failed to inform the Court of the correct legal position. He would place reliance on the Assam Rifles Act, 2006 (for brevity, ‘the Act of 2006’) and the Rules of 2010 in this regard. Chapter IV of the Rules of 2010 deals with ‘Termination of Service’ and Rules 17 to 27 therein set out the situations in which termination of service, discharge from service, retirement and resignation from service are to be effected. Rule 28 provides for an appeal Review. Pet. No. 6 of 2019 & Ors. against orders of dismissal, removal or compulsory retirement. It states to the effect that a person, subject to the Act of 2010 but not being an Officer, who has been dismissed, removed or compulsorily retired from service shall have the right to put in an appeal against such termination to an authority higher than the one who passed the termination order within 90 days of termination from service.

Rule 28(2) however provides that in case of Officers, the appeal shall lie to the Central Government within 90 days from the termination of service. [6] Significantly, as rightly pointed out by Mr. S. Kaminikumar, learned CGC, Rules 21 to 28 have no role to play when the disciplinary action is founded on proceedings before the General Assam Rifles Court. The procedure to be followed in relation to proceedings before the Assam Rifles Courts is provided under Chapter IX of the Act of 2006. Chapter X thereof deals with ‘Confirmation and Revision’ in relation to the findings and sentences of the General Assam Rifles Court or a Petty Assam Rifles Court. Section 130 in Chapter X provides that the findings and sentences of the General Assam Rifles Courts should be confirmed by the Central Government or by any officer empowered in this behalf by warrant of the Central Government. The remedy against the order, finding or sentence of the Assam Rifles Court is provided under Section 139.

Section 139 (1) provides that any person, subject to the Act of 2006, who is aggrieved by an order passed by the Assam Rifles Court may present a petition to the officer or authority empowered to confirm any finding or sentence of the Assam Rifles Court and the confirming authority may take such steps, as may be considered necessary, to satisfy itself as to the correctness, legality or propriety of the order passed or as to regularity of any proceeding to which the order relates. Section 139(2) however provides that any person, who is subject to the Act of 2006, who is aggrieved by the finding or sentence of the Assam Rifles Court, which has been confirmed, may present a petition to the Central Government, the Director General or any prescribed officer superior in command to the one who confirmed such finding or sentence, and the Central Government, the Director General or the prescribed officer, as the case may be, may pass such order thereon as it or he thinks fit.

Review. Pet. No. 6 of 2019 & Ors. [7] The question, therefore, is whether the learned Judge was correct in applying Rule 28(2) of the Rules of 2010 to the case on hand. As that aspect requires to be addressed, this application for review is granted and the matter is taken up for rehearing under Order 47 Rule 8 CPC. [8] The core issue presently is as to who is the authority competent under the Act of 2006/Rules of 2010 to deal with the appeal dated 20.09.2016 filed Dr. Kam Deo Das. In the context of the aforestated statutory milieu, it is to be noted that the order of compulsory retirement visited upon Dr. Kam Deo Das was admittedly based on the proceedings before the General Assam Rifles Court. It was not an order relatable to Chapter IV of the Rules of 2010 but one falling directly under Chapters IX & X of the Act of 2006. The recommendation of the General Assam Rifles Court that Dr. Kam Deo Das be compulsorily retired from service was confirmed on 09.07.2016 and was promulgated on 12.07.2016.