High Court of Meghalaya
Union Of India Represented By The ... vs No.5450016 Shri.Dharamvir Singh on 3 May, 2024
Author: W.Diengdoh
Bench: W.Diengdoh
Serial No.01
Supplementary 1 List
HIGH COURT OF MEGHALAYA
AT SHILLONG
W.P(C) No.28 of 2024 &
W.P(C) No.1 of 2024 Reserved on: 05.03.2024
Pronounced on: 03.05.2024
W.P(C) No.28 of 2024
1. Union of India represented by the Secretary
to the Government of India, Ministry of Home Affairs,
New Delhi - 110 011.
2. The Director General, Assam Rifles,
DGAR, Laitkor, Shillong.
3. The Commander,
21 Sector Assam Rifles, C/0 99 APO, Pin-932421 ... Petitioners
-vs-
No.5450016 Shri.Dharamvir Singh ... Respondent
W.P(C) No.1 of 2024
No.5450016 Shri. Dharmvir Sing ... Petitioner
-vs-
1. The Union of India, represented by the Secretary
to the Government of India, Ministry of Home Affairs,
North Block, New Delhi - 110 001.
2. The Director General Assam Rifles,
The Directorate General Assam Rifles,
East Khasi Hills, Laitkor, Shillong,
Meghalaya, Pin-793 010.
3. The Sector Commander,
21 Sector Assam Rifles, C/o 99 APO, Pin-932421 ... Respondents
Coram:
Hon'ble Mr. Justice S.Vaidyanathan, Chief Justice
Hon'ble Mr. Justice W.Diengdoh, Judge
Page 1 of 13
Appearance (W.P(C) No.28 of 2024):
For the Petitioners : Dr.N.Mozika, DSG with
Ms.A.Pradhan, Adv.
For the Respondent : Mr.H.Betala, Adv.
Mr.D.K.Bhuyan, Adv.
Ms.A.Surana, Adv
Appearance (W.P(C) No.1 of 2024):
For the Petitioner : Mr.H.Betala, Adv.
Mr.D.K.Bhuyan, Adv.
Ms.A.Surana, Adv
For the Respondent : Dr.N.Mozika, DSG with
Ms.A.Pradhan, Adv.
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
in press:
COMMON ORDER
(Made by Hon'ble Chief Justice)
W.P(C) No.28 of 2024 has been filed by the Union of India /
Assam Rifles, seeking to extend the time for completion of the
disciplinary proceedings against the respondent / Writ Petitioner in
W.P(C) No.1 of 2024, as ordered by this Court in W.P(C) No.444 of
2020 dated 22.03.2022 till 31.08.2024.
2. The Writ Petitioner in W.P(C) No.1 of 2024 has filed the Writ
Petition before the learned Single Judge, a) to set aside and quash the
improper disciplinary proceedings ordered vide Order
No.5450016/DS/Estt-A(Discp)/2022/635 dated 22.08.2022 and grant all
consequential benefits to the petitioner, b) to
forbear/recall/withdraw/stay the disciplinary proceedings ordered
against the petitioner vide authority Order No.5450016/DS/Estt-
A(Discp)/2022/635 dated 22.08.2022 and grant all consequential
benefits to the petitioner, c) to direct the Director General, Assam Rifles
to consider the representation dated 09.11.2023 and pass speaking order
within a stipulated time frame, d) to direct the respondent authorities to
prepare fresh pay fixation due to the petitioner as per his entitlements, e)
to direct the respondent authorities to release the arrear payments with
effect from 26.03.2016 till 31.07.2022 and f) to direct the respondent
authorities to comply with the order dated 22.03.2022 passed by the
Hon'ble Division Bench of the High Court of Meghalaya in W.P(C)
No.444 of 2020.
3. Since the issue involved in both Writ Petitions is one and the
same, we directed the Registry to club W.P(C) No.1 of 2024 pending
before the Single Bench along with W.P(C) No.28 of 2024 for joint
disposal. For the sake of brevity, the parties are referred to as "Assam
Rifles" and Employee".
4. It was the case of the Employee that he joined the services of
Assam Rifles on 26.06.2000 as Hindi Typist and served in various units
of Assam Rifles and he was granted 15 days casual leave from
12.08.2013 to 01.09.2013 on account of his elder daughter's sudden
ailment and on the expiry of leave, he failed to join duty and on
11.09.2014, he voluntarily re-joined duty after absenting himself for
373 days. In view of unauthorized absence of 373 days, Assam Rifles
issued a show cause notice seeking explanation as to why disciplinary
action should not be initiated against him. It was further case of the
Employee that he replied that his wife had expired previous year,
leaving behind three children and he had to take care of them. He also
suffered acute back pain and underwent medical treatment at District
Hospital, Agra from 28.08.2013 to 22.08.2014, on account of which, he
was not able to re-join duty. According to him, he had produced the
medical documents in respect of his ailment.
5. According to the Assam Rifles, the Employee, after receiving
the charge sheet, has admitted his guilty, based on which, the
Disciplinary Authority had decided to impose a major punishment of
removal from service vide order dated 25.03.2016, which reads as
follows:
"4. NOW THEREFORE, after due application of mind to
the facts of the case, and in exercise of the power conferred
by the Central Civil Services (Classification, Control and
Appeal) Rules, 1965, a major penalty of "Removed from
service which shall not be a disqualification for future
employment under the Government" is hereby imposed as
enumerated in Rule 11 (viii) on the charged official,
No.5450016 Shri. Dharmvir Singh, Hindi Typist of 21
Sector Assam Rifles with immediate effect.
5. AND it is further directed that above mentioned
absence period be treated as unauthorized absence from
duty and be penalized by recovering from his pay, the whole
amount of pecuniary loss caused by his absence to the
Government. Accordingly, necessary casualty be published
and be recorded in his Service Book/Record."
6. It was contended by the Assam Rifles that against the order of
removal from service, the Employee preferred an appeal to the Secretary,
Ministry of Home Affairs, who is the Appellate Authority to set aside the
order of the Disciplinary Authority, namely, Lieutenant General, DGAR
dated 25.03.2016. The Employee also filed an Original Application
No.456 of 2016 before the Central Administrative Tribunal (CAT),
Guwahati Bench to set aside the order and also for his reinstatement in
service with all consequential benefits and the Central Administrative
Tribunal, Guwahati Bench had disposed of the application on 15.03.2019
with the following directions:
"12. We have gone through the records placed before us and
considered the pleadings and submissions made. We are of the
definitive view that though a semblance of disciplinary
proceedings was attempted against the charge official, but no
proper inquiry was actually conducted. He was neither given
any opportunity to defend himself nor record of his pleadings
guilty of the charge is found. As such, we found that the
inquiry purported to have been conducted by the respondent
authorities was highly vitiated, bad in law and liable to be set
aside. Accordingly, the Disciplinary Authority's order
No.112015/A(Discp)/HT-21 Sect/2016 dated 25.03.2016 is
hereby set aside and quashed. The appellant may be reinstated
with immediate effect with all consequential benefits. The
period of absence, however, may be settled by granting him
leave as admissible to the appellant."
7. It was further contended by the Assam Rifles that since the
Employee was directed to be reinstated, Assam Rifles preferred W.P(C)
No.444 of 2020 before this Court, wherein this Court passed the
following order on 22.03.2022:
"5. The order speaks of procedural lapses that resulted in
serious prejudice and the respondent herein not being afforded
an opportunity to adequately defend himself. The order does
not refer to the proceedings being bad ab initio. There is no
observation as to the mendacity of the show-cause notice
issued or the charges forwarded or the statement of imputation
of conduct pertaining thereto. Indeed, it appears that what the
Tribunal intended was to only quash and set aside the order of
punishment and not quash the proceedings; but it failed to
expressly give leave for the employer to continue with the
disciplinary proceedings from the show-cause stage or from
any other subsequent stage.
6. Accordingly, the order dated March 15, 2019 passed by
the Tribunal is modified by not interfering with that part
thereof that quashed the penalty and the final order passed in
the disciplinary proceedings, but by granting leave to the writ
petitioner-employer to continue with the proceedings from the
stage of the reply to the charges having been filed by the
respondent. If no reply was used, the respondent will be
entitled to furnish his reply within a fortnight of the employer
calling upon him to do so. The further proceedings will be
conducted by affording a reasonable opportunity to the
respondent to defend himself and any report furnished in
course thereof or order passed therein should not be unduly
influenced by the order of the Tribunal.
7. The entire exercise should be completed by the employer
by August 31, 2022 and the respondent will not be entitled to
seek any adjournment in the course of the proceedings."
8. In terms of the above judgment, the enquiry was to be
completed on or before 31.08.2022 and without prejudice to the
disciplinary proceedings, the Employee should be reinstated in service,
pursuant to which, he reported for work on 20.05.2022. Thereafter,
disciplinary proceedings were initiated for the unauthorized absence of
373 days.
9. According to the Assam Rifles, the Employee is a habitual
offender and his unauthorized absence is not in the interest of
organization. As the time limit to conclude the enquiry had expired,
Assam Rifles has filed W.P(C) No.28 of 2024, seeking extension of
time to complete the same.
10. After hearing the arguments on both sides, on the last
hearing, this Court directed the Assam Rifles to inform this Court as to
what is the punishment proposed to be imposed on the Employee, who
is now in a non-sensitive post and a capital punishment should not be
imposed. Learned counsel for the Assam Rifles, on instructions, stated
on 05.03.2024, on which date, cases were reserved for orders that
Assam Rifles is going to impose a punishment of stoppage of increment
for three years without cumulative effect in the light of Rule 11(iv) of
Central Civil Services (Classification, Control and Appeal) Rules.
11. From the records, more so, Paragraph No.13 of the Writ
affidavit, it is very clear that the Employee absented himself on several
occasions from 2007 and the details of the same are as follows:
Ser.No. Unit Period No. of days
1. 13 Assam Rifles 02 Oct 2007 - 06 Feb 2008 128 days
2. 13 Assam Rifles 15 May 2008 - 08 Apr 2008 330 days
3. 17 Assam Rifles 08 Nov 2009 - 30 Apr 2010 174 days
4. 17 Assam Rifles 13 Dec 2010 - 03 Feb 2011 53 days
5. 17 Assam Rifles 13 Jun 2011 - 27 Mar 2012 289 days
6. HQ 21 Sector Assam Rifles 02 Sep 2013 - 09 Sep 2014 373 days
Though the Assam Rifles stated that the Employee is a habitual
offender, no document has been produced to show that for the absence
from 2007-2012 in the tabular column mentioned supra, any
disciplinary action has been initiated for the misconduct. When no
disciplinary action has been initiated, details of which are not available
on record, the period mentioned in Sl.Nos.1 to 5 cannot be treated as
past record. However, the Employee has not disputed the leave taken
from Sl.Nos.1 to 6 and he has given explanation only for the leave taken
for 373 days as found in Sl.No.6.
12. After giving our anxious consideration to the arguments
advanced by the parties, we find that Writ Petitions filed by both the
Assam Rifles and the Employee are not maintainable. The Assam
Rifles, instead of filing a Writ Petition for extension of time, should
have filed a Miscellaneous Application with the said relief. Similarly,
the Employee cannot approach this Court directly, seeking wages etc.,
without exhausting his remedy available before the Central
Administrative Tribunal (CAT), which is impermissible in the light of
the judgments of Apex Court in the cases of Kendriya Vidyalaya
Sangathan and another vs. Subhas Sharma etc., [2002(2) Supreme
314] and Rajeev Kumar Vs. Hemraj Singh Chauhan, [(2010) 4 SCC
554].
13. A Division Bench of Madras High Court in the case of
Government Of Tamil Nadu And Ors. vs P. Hepzi Vimalabai,
reported in 1995 (2) SCT 503 held that the Tribunal alone has the
jurisdiction to deal with all the pre-recruitment matters and the relevant
paragraphs are extracted below:
"30. In our view, the use of the expression 'matters concerning
recruitment' is wide enough to cover and include all matters
concerning recruitment. There is no warrant to make a distinction
between 'pre-recruitment matters' and 'recruitment matters'. We are of
the opinion that the view expressed by the Division Bench in Ruban's
case, 1990 W.L.R. 1 : (1990)2 L.L.J. 92, that only 'in service'
candidates can raise disputes in respect of matters pertaining to
recruitment and not a person not in service is not acceptable. On the
contrary, 'recruitment' is a process which would cover within its ambit
all the necessary steps commencing from the stage of notifying the
vacancies and ending with the appointment of selected candidates.
The fact that the definition of the expression 'service matters' in
Section 3(q) of the Act does not make any reference to recruitment is
wholly irrelevant'. 'Recruitment' is separately referred to in the
preamble as well as in the relevant provisions of the Act. In addition
thereto, the expression 'conditions of service of persons appointed' is
also found. Section 3(q) of the Act is applicable to persons appointed
to service. That is why that section does not make any reference to
recruitment.
31. The above view expressed by us finds full support from
the following Full Bench decisions of the Andhra Pradesh and
Madhya Pradesh High Courts reported in K. Naga Raja v. The
Superintending Engineer, Irrigation Department, Chittoor and Dr.
Usha Narwariya v. State of M.P. (1994)2 L.L.J. 252.
32. The Supreme Court had occasion to consider the meaning
of the words 'Recruitment' and 'Appointment' in Prafulla's case
(1993)1 L.L.J., 749. The observations of the Supreme Court have
been extracted in paragraphs supra. The position of law expounded by
the Supreme Court amply supports the above view taken by us."
14. However, in order to avoid multiplicity of the litigation and
also considering the fact that Assam Rifles has proposed to impose the
punishment of stoppage of increment for 3 years without cumulative
effect, there is no need to extend the time for completion of the enquiry
and there is no bar for them to straightaway issue the punishment as
stated by them before this Court. The Apex Court in the case of Gujarat
State Road Transport Corporation vs. U.A.Malek, reported in (2001)
10 SCC 548 held that when an employee is reinstated and is in
employment for such a long period, it would not be appropriate to upset
the present state of affairs. Though the said finding has been given by
the Apex Court in a case arising out of Industrial Dispute, an
opportunity is given to the Employee herein to correct himself and work
properly.
15. At this juncture, learned counsel for the Employee, on
instructions, submitted that though the Employee is prepared to accept
the above imposition of punishment to be inflicted upon him, the only
concern expressed by him was that proper fixation of pay and other
monetary benefits need to be extended to him. For the sake of
repetition, it is stated that as assured before this Court, the Assam Rifles
shall impose the punishment of stoppage of increment for 3 years
without cumulative effect on the Employee and thereafter, shall extend
proper fixation of pay and other monetary benefits to him.
16. The Employee has not produced any document with regard
to his daughter's illness and his absence from duty has also been
established. However, taking note of the fact that the petitioner has
already been reinstated in service, pursuant to the orders of this Court
and that there is a consensus arrived at, it is expected that the Employee
shall discharge his work without going on leave and without proper
permission, as has been done earlier. In case he is found to be absent for
any reason in future or commit any other misconduct, the entire period
of absence as mentioned in Sl.Nos.1 to 6 (supra) will have to be treated
as his past record and there is no impediment for the Assam Rifles to
impose a major punishment after issuing charge sheet, following other
procedures, etc., in accordance with law. It is made clear that merely
because this Court has passed an order modifying the punishment, it
does not mean that Writ Petitions are maintainable and because of the
consensus arrived at between the parties and to avoid mental agony to
both parties, this Court has moulded the relief. Had the parties not
consented for amicable solution, this Court would have definitely
dismissed the W.P(C) No.1 of 2024, giving liberty to the Department to
proceed with the enquiry, which may ultimately end in dismissal of the
employee, as the duration of his absence is huge. It is further made clear
the period of his absence is not treated as dies non and for the services
not rendered, the period will have to be treated as "No Work No Pay".
17. In the result, both W.P(C) No.28 of 2024 and W.P(C) No.1 of
2024 are dismissed.
(W. Diengdoh) (S. Vaidyanathan)
Judge Chief Justice
Meghalaya
03.05.2024
"Lam DR-PS"
PRE-DELIVERY ORDER IN
W.P(C) No.28 of 2024 &
