High Court of Meghalaya
Shri. Sachin Kumar vs . Union Of India & Ors. on 12 October, 2022
Serial No. 31
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 28 of 2019 Date of Decision: 12.10.2022
Shri. Sachin Kumar Vs. Union of India & Ors.
Coram:
Hon'ble Mr. Justice H. S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. R.J. Sarma, Adv.
For the Respondent(s) : Dr. N. Mozika, DSGI with
Ms. A. Pradhan, Adv.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER (ORAL)
1. The brief facts of the case are that, the petitioner who was
working as a Rifleman(GD) in Assam Rifles had taken leave for the
period 12.03.2016 to 08.04.2016, but however, failed to rejoin his duties
after his leave expired, and in fact only reported back on 24.02.2017.
After the petitioner rejoined his unit voluntarily, he was tried by the
Summary Assam Rifles Court under Section 26(b) of the Assam Rifles
Act, 2006, and after the disciplinary proceedings by order dated
10.06.2017, was awarded the sentence of 'Dismissal from Service' w.e.f.
from 10.06.2017. An Appeal against the dismissal order was also
preferred before the Appellate Authority, but the same was dismissed by
order dated 23.10.2018. The petitioner being aggrieved thereby has filed
the instant writ petition.
2. The grounds of challenge of the impugned order of dismissal
are that the statement made by the petitioner regarding explanation of his
overstay of period of leave, was not considered, that his signatures in the
records of inquiry were obtained under duress, and that the entire
proceedings were bad in law, as the Commandant who had ordered for
the trial of the petitioner had conducted the trial himself. It has also been
contended that the punishment imposed is disproportionate to the offence
charged, as the petitioner was prevented by sufficient cause from joining
his duties in time. Reference has also been made to Section 26(b) of the
Assam Rifles Act, which the learned counsel submits, that before coming
to any findings, the Authority must come to a conclusion that the
petitioner overstayed his leave without sufficient cause. In the instant
case, he contends, despite there being evidence regarding his cause of
absence, the same was disregarded.
3. On behalf of the respondents, it has been submitted by the
learned DSGI, that the petitioner had been accorded ample opportunity to
defend himself during the entire disciplinary proceedings. It has been
submitted that, a tentative charge sheet had been handed over to the
petitioner on 29.05.2017, and hearing of charge took place on 30.05.2017,
and that during the Summary of Evidence, the petitioner was given full
opportunity to produce valid reasons to substantiate his unauthorized
absence of 322 days from duty, which he failed to do. It is further
submitted that, the entire proceedings as prescribed by law, and the
Assam Rifles Act and Rules have been followed, and adequate
opportunity was afforded to the petitioner to defend himself and that
proper procedure, which involved Hearing of Charge and recording of
Summary of Evidence was followed. It has also been brought to the notice
of the Court that, the petitioner has been a perpetual offender for not
rejoining his duties on time and absenting himself for long periods,
without any information to his superiors, and that he had been absent on
three occasions for elongated periods. It is lastly submitted that, though
leniency was shown to the petitioner on earlier two occasions, his conduct
has been detrimental to the discipline of the Force. Reliance has been
placed on the judgment of the Supreme Court reported in (2005) 13 SCC
709 in the case of Union of India & Ors. vs. Datta Linga Toshatwad, in
support of the submissions advanced.
4. I have heard learned counsels for the parties, and carefully
examined the materials on record. A perusal of the records as placed in
the writ petition itself reveals that, the writ petitioner had been served a
tentative charge sheet on 29.05.2017, and thereafter in the Summary of
Evidence that was recorded in his presence and in the presence of
independent witnesses, was also given adequate opportunity to cross
examine the witnesses which he declined. The signatures of the writ
petitioner are also duly appended which confirms his participation. In his
statement, after the evidence of all the prosecution witnesses had been
recorded, the writ petitioner has categorically admitted that he had
overstayed his leave and that he rejoined his duty after a lapse of 322 days
on 24.02.2017. It has been further admitted in the recorded statement by
the writ petitioner that he did not inform anyone or tried to contact
anybody. It is seen that the signature of the petitioner is also appended to
the said statement.
5. After the Summary of Evidence, it is noted that, a
communication was then made that the writ petitioner be tried by
Summary Assam Rifles Court under the Assam Rifles Act, as per Section
26(b) for overstaying leave without sufficient cause. It is also reflected
from the materials on record that, the writ petitioner was duly intimated
on 03.06.2017 and was allowed to depute a person to assist him for his
defence. In the preparation of defence, the writ petitioner did not wish to
call any witness on his behalf, and accordingly, after conclusion of the
proceedings on 10.06.2017, the petitioner was awarded the punishment
of 'Dismissal from Service'. An appeal was also preferred, which
however, was rejected by order dated 23.10.2018.
6. From the discussions above, it is clearly seen that, due process
in accordance with law, had been followed and in the considered opinion
of this Court, the said disciplinary proceedings, cannot be said to suffer
from any infirmity or are vitiated by any irregularity or that there was no
adherence to the Principles of Natural Justice. The scope of judicial
review, in such matters, is very limited as the High Court does not sit as
a Court of Appeal over the orders of the disciplinary authorities, nor can
it reappreciate or reassess the findings of the inquiry. Furthermore, a fact
that cannot be ignored is that the petitioner is a member of the Armed
Forces which demands a higher standard of discipline. In this context, it
is relevant to refer to the decision placed by the counsel for the
respondents namely Union of India & Ors. vs. Datta Linga Toshatwad
(supra), wherein at Para - 6 it has been held as follows:
"6. One cannot ignore the large number of cases which
come to this Court of members of uniformed forces
remaining absent from duty without any reasonable
explanation. Whenever action is taken, the usual plea
taken is of having been ill or some such false pretext,
and even fake or false medical certificates are produced
in support of such a plea. We would not have taken a
serious view of the matter had it not been a case of a
constable belonging to CRPF remaining absent for an
indefinite period. Even if we assume that the
respondent was suffering from depression and was
being treated as an outdoor patient, the medical
certificates produced by him show that he was restored
to normalcy on 4-4-1998 yet the respondent did not
choose to report for duty. The order of dismissal was
passed seven months later i.e. on 2-11-1998. This itself
discloses the hollowness of the claim of the respondent
regarding mental depression and imbalance which he
claims to have suffered."
7. In the result therefore, there being no palpable error in the
conduct of proceedings, and the punishment awarded, the writ petition is
devoid of any merit, and is accordingly dismissed.
8. No order as to costs.
Judge
Meghalaya
12.10.2022
"D.Thabah-PS"
