Heard Mr. A. Puri, learned counsel assisted by Ms. A. Saha
Hirawat, learned counsel appearing for the petitioner. Also heard Mr. B.
Majumder, learned Dy. SGI appearing for the respondents-Union of India.
Rifles as Subedar (Building and Road) on various locations of North East India.
allied works. On 24/25 September 2014 a video was aired in Malayalam
contractor. It is stated that the video was displayed with a narration to show
connection to clearing / passing of bills. In the video clips it was narrated that
the petitioner received Rs.5,000/- from Mr. CC Mathew as a gratification/bribe
for clearance of their bills in the organization. The petitioner stated that the
2010. Rule 183(8) of Assam Rifles and statement of one Mr. C.C. Mathew
[4] Earlier by an order dated 24.08.2023 passed in WP(C) No. 462 of
2022, this court dismissed the writ petition of the petitioner. The relevant
"5. In a petition filed under Article 226 of the Constitution of India, procedural
irregularities and violation of legal provision are to be highlighted, but on the
point of factual aspects and other issues, the same cannot be appreciated. For
that aspect, disciplinary authority and appellate authority are there but the
petitioner has crossed all those limits. Further, the petitioner herein has been
given an opportunity by way of cross-examination by the respondents in the
form of question head, but the petitioner did not choose to take the opportunity.
As such, this Court is of the opinion that the petitioner side has failed to make
out the case, and accordingly, this present writ petition stands dismissed."
[5] Being aggrieved, the petitioner herein approached the Division
Bench of this Hon'ble Court by preferring a writ appeal vide W.A. No. 126 of
2023 wherein, the Hon'ble Division Bench on 01.04.2025 after considering the
rival submissions of the parties, remanded the matter to the learned Writ
Court for fresh adjudication of the case. The relevant paragraph of the
aforesaid judgment is quoted herein below:
" [7] On consideration of the rival submissions of the parties, we are inclined to
remand the matter to the learned Writ Court for fresh consideration since we
are of the opinion that none of the grounds of law and facts urged by the writ
petitioner have been dealt with by the learned First Court to enable the
appellate court to test the correctness and legality of the impugned judgment.
However, since the writ petition has been filed in the year 2022 and the
petitioner is out of service since 2021 and by now, he has also reached the age of
superannuation, the learned Writ Court is requested to decide the writ petition,
if possible, within a period of 3[three) months. However, it is indicated that this
court has not expressed any opinion on the merits of the grounds of law or facts
urged by the parties................"
[6] Today, when the matter is called, both sides are present. Mr. A.
Puri, learned counsel appearing for the petitioner contended before this court
on (03) three major issues i.e., (i) Violation of Principles of Natural Justice
(ii) The procedure contemplated under the Assam Rifles rules and Act were
violated and (iii) lastly, on the point of disproportionate punishment.
[7] Mr. Puri, learned counsel has inter-alia taken above grounds to
question the findings of the disciplinary authority as upheld in appeal. Learned
counsel for the petitioner while assailing the impugned order made specific
reference to the provisions of Section 11(2) of the Assam Rifles Act, 2006 read
with Rule 20, 46, 47 and 48 of the Assam Rifles Rules, 2010 and submitted
that the plea taken by the respondents in conducting a Force Court as
inexpedient or impracticable, is wholly untenable in law and on facts in the
present case. Learned counsel for the petitioner in support of his proposition
has placed reliance on the case of Tarsem Singh vs. State of Punjab and
others, reported in (2006) 13 SCC 581, Prithipal Singh vs. State of
Punjab, reported in (2006) 13 SCC 314, wherein the Constitution Bench
judgment in the case of Union of India vs. Tulsiram Patel, reported in
(1985) 3 SCC 398 has also been referred. These are in relation to dispensing
of regular enquiry under Article 311(2) of the Constitution of India. He also
referred to another judgment of the Hon'ble Apex Court in Union of India vs.
Central Administrative Tribunal, 2020 SCC OnLine Pat 4102.
[8] Learned counsel for the petitioner, further submits that the
petitioner served a show cause notice dated 15.06.2021, regarding
gratification and accepting of illegal money and a reply was also submitted
on 18.07.2021 against the show cause notice. Thereafter, by an order dated
18.10.2021 the petitioner was terminated by the Assam Rifles Act 2006 read
with Rule 20 of the Assam Rifles Rules 2010. He, thereafter, approached the
appellate authority i.e. Director General Assam Rifles, Latikor, Shillong, by an
appeal dated 28.12.2021, but the same was also rejected vide order dated
09.03.2022. Thus, prayed to allow the writ petition by setting aside the
impugned orders.
[9] Mr. B. Majumder, learned Dy. SGI representing the respondents
submitted before this Court that initially the petitioner filed a Writ Petition
(C) No. 710 of 2017 before this Hon'ble Court to quash the GARC proceeding
on the ground that GARC has no jurisdiction to try offences under Prevention
of Corruption Act, 1988 ultimately petitioner failed to get any relief from the
Hon'ble Supreme Court and accordingly this Court has allowed to go on with
GARC. Since, the Hon'ble Supreme Court vide order dated 01.07.2019 held
that GARC has the jurisdiction to try the offences under Prevention of
Corruption Act but, in the meantime, as per Section 98 of Assam Rifles Act the
same was become time barred. He contended before this Court that the
principle of natural justice was followed and show cause notice was issued and
explanation was received and thereafter, final order of termination was
passed, which has been confirmed by appellate authority. Even during the
enquiry he was given opportunity for cross examining the witness by
questionnaire format, since Mr. CC Mathew from Kerala, the witness was not
attending the GARC proceeding. But the petitioner declined to avail the
opportunity to cross-examining twice. The petitioner being a person from
defence, he is supposed to render service with integrity.
[10] Mr. Majumder, learned Dy. SGI also submits that due to paucity
of time, the respondents took the aid of Section 11(2) of the Assam Rifles Act,
2006 read with Rule 20 of the Assam Rifles Rules, 2010 . He further placed
reliance on a judgment of Hon'ble Apex Court titled as Union of India and
Others vs. Harjeet Singh Sandhu with Union of India and Others Vs.
Ex-Capt. Harminder Kumar reported in (2001) 5SCC 593. He prayed to
dismiss the Writ Petition.
[11] It is seen from the record that the petitioner was working under
Assam Rifles as Subedar prima facie he was charged on the allegation of
accepting and gratification of Rs.5000/- from Mr. CC Mathews for clearing his
bills. The statement of the petitioner is inconsistent because on the one hand
he agreed receipt of Rs.5000/- as unlawful gratification and on the other hand
he denied such receipt of money from Mr. CC Mathews but later on accepts
receipt of money from Mr. CC Mathew for purchasing of some CSD materials.
Although, no reason has been established as to why Mr. Mathew will pay for
purchase of CSD Items. The relevant portion of the termination order dated
18.10.2021 and appellate order dated 09.03.2022 is extracted hereunder:-
"(c) That, the fact that you accepted Rs.5,000/- from Mr CC Mathew has not been
disputed by you. The only aspect to be ascertained is that whether the said
amount was accepted in lieu of clearing pending bill of Mr CC Mathew. Your
contention that the said amount of Rs.5,000/- was for buying Juicer Mixer
Grinder and Liquor does not hold any ground as firstly, there is no reference of
purchase of CSD items in the entire conversation of Mr CC Mathew with any
personnel of Headquarters 10 Sector Assam Rifles on 07 August 2014 and
secondly Mr. CC Mathew being an Ex-Serviceman was entitled to purchase the
same from CSD Canteen. Further, the CSD bill produced to show that Juicer Mixer
Grinder was bought from Canteen is dated 02 September 2014 whereas the said
incident took place on 07 August 2014. No reason is given as to why the Juicer
Mixer Grinder was bought almost after a month and why you could not buy a
case of Rum as claimed to be requested by Mr CC Mathew. It is also to be seen
that the said Juicer Mixer Grinder was bought alongwith other household items
which suggests that the version narrated by you with regard to acceptance of
Rs.5,000/- from Mr CC Mathew is retrofitted in the facts of the case........"
"15. AND WHEREAS, after examining the contentions raised by you in the said
appeal, the following is observed:-
(a) The Court of Inquiry to investigate the allegation of corruption in Assam
Rifles was ordered taking the cognizance of Sting Operation uploaded on
Tehelka.com and not on the basis of any complaint by Mr. CC Mathew. The Court
of Inquiry was convened only to verify the allegation made in the said video and
apportion blame on the individuals found culpable on the basis of prima-facie
evidence. Mr. CC Mathew was summoned through Judicial Magistrate to appear
as a witness before Court of Inquiry as revealed from Page 508 of the Court of
Inquiry but he did not honour the summon. Further, the attendance of Mr. CC
Mathew, resident of Kerala, could not be secured during Summary of Evidence
owing to loss time and his risk of life by the individual found blameworthy during
the Court of Inquiry. Therefore, a written statement was obtained from Mr. CC
Mathew in accordance with Rule 49 (6) of Assam Rifles Rules, 2010. You were
also given an opportunity to cross-examine Mr. CC Mathew through a written
questionnaire; however, you declined the same. Thus no prejudice was caused to
you even during the Summary of Evidence as you declined to cross-examine Mr.
CC Mathew. Both the Court of Inquiry and Summary of Evidence were carried out
in accordance with the provision of Assam Rifles Act and Rules.
(b) At the time of trial by GARC you were served with the charge-sheet which
mentioned Rs.7,000/- as the amount taken by you as illegal gratification
whereas in the show cause notice and the order dated 18 Oct 2021, you were
found blameworthy for accepting Rs.5,000/. Though there is discrepancy with
respect to the amount which was taken by you from CC Mathew as illegal
gratification, however the same is immaterial as the gravamen of the misconduct
is accepting illegal gratification in lieu of performing an official act. The footage
of Sting operation clearly shows the manner in which you accepted money from
Mr. CC Mathew in lieu of clearing his bill No CCM/2013/03 dated 30 April 2013
for Rs. 98,066/- which was kept pending. It is clearly seen and heard in the
video that you asked Mr. CC Mathew to keep the money below the table. While
handing over the money Mr. CC Mathew said 'Aap ke hath mein de do bola', and
while accepting the money you sad 'Sahab ne kya bataya'. Appreciation of
discussion between you and Mr. CC Mathew as shown in the video leaves no
doubt that you took the money for clearing the pending bill of Mr. CC Mathew.
Therefore, you were found blameworthy for the misconduct of accepting
Rs.5,000/- from Mr CC Mathew as illegal gratification. Further, it also writ large
from your reply to the Show Cause Notice that you have not disputed accepting
the said amount of Rs.5,000/- from Mr CC Mathew and the same has been
adequately dealt by competent authority vide order dated 18 Oct 2021.
Therefore, the said discrepancy does not in any way affect the order dated 18
Oct 2021."
A show cause notice has been issued dated 15.06.2021. The
relevant portion of the Show cause notice is extracted herein below:
"..........18. NOW THEREFORE, in accordance with the directions of the Inspector
General Assam Riffles (North), you are hereby informed on his behalf and called
upon to submit your defence, if any, in writing and to show cause as to why your
services should not be terminated under the provisions of Section 11 (1) of
Assam Rifles Act. 2006 read with Rule 20 of Assam Rifles Rules, 2010........."
To the said show cause notice the petitioner submitted his
explanation dated 18.07.2021, the relevant portion is extracted below:-
"...13. PRAYER: In view of the above submission, I humbly pray that:
a I be exonerated from the allegations, or else
b. A lenient punishment which may not take away my livelihood may be
considered for lapses if any in taking Rs. 5000/- from the hands of Mr. CC
Mathew though I had taken the same with the thought that the money was given
by Mr. CC Mathew for the purchase of CSD items.
C. The issue of entertaining Mr CC Mathew may kindly be considered in the light
of expected official conduct on the part of office staff and the status of Mr
Mathew as Ex Assam Rifles NCO then working for the organisation as a
registered contractor of Assam Rifles."
[12] Thereafter, the respondents conducted an enquiry as per
contemplation of Rules 20 of Assam Rifles Rules, and since, the procuring of
physical appearance of Mr.CC Mathews was not possible, his written statement
was recorded on 16.05.2015 and the same has been furnished to the
petitioner in person. During the course of enquiry as per Assam Rifles Rules
49(2) and (6) the accused Subedar was given an opportunity to cross examine
the prosecution witness No.8 Mr. CC Mathew through a written questionnaire.
The accused declined to cross examine. At this stage he was again given a
liberty to reconsider his decision to submit a written questionnaire for cross
examining Mr. CC Mathew in the interest of natural justice. But on both
occasions he denied. Thus, all contentions of the petitioner with respect to
non-compliance of the mandatory provision of Assam Rifles Rule 183 and Rule
49 are devoid of any merit.
The relevant portions of the aforesaid rules are extracted herein
below:-
" 20. Termination of service of persons, other than officers on account of
misconduct - (1) When it is proposed to terminate the service of a person subject
to the Act other than an officer, he shall be given an opportunity by the authority
competent to dismiss or remove him to show cause in the manner specified in
sub rule (2) against such action
Provided that this sub-rule shall not apply-
(a) where the service is terminated on the ground of conduct which has led to
his conviction by a Criminal Court or a Force Court, or
(b) where the authority as specified in rule 17 is satisfied that for reasons to be
recorded in writing, it is not expedient or reasonably practicable to give the
person concerned an opportunity of showing cause.
(2) When after considering the reports on the misconduct of the person
concerned the authority as specified in rule 17 is satisfied that the trial of such a
person by the Force Court is inexpedient or impracticable, but is of the opinion,
that his further retention in the service is undesirable, it shall so inform him
together with all reports adverse to him and he shall be called upon to submit, in
writing, his explanation and defence.............................'
CHAPTER-VIII
INVESTIGATION OF CHARGES AND SUMMARY DISPOSAL
HEARING OF CHARGE
46. Tentative charge sheet- Where it is alleged that a person subject to the Act
has committed an offence punishable under the Act, the allegation shall be
reduced to writing in the form set out in Appendix-IV.
47. Hearing of charge. - (1) Every charge against a person subject to the Act
shall be heard by the Commandant in the presence of the accused and the
Proceedings shall be reduced to writing in the form set out in Appendix-V and
the accused shall have full liberty to cross-examine any witness against him, and
to call such witness and make such statement as may be necessary for his
defence Provided that where the charge against the accused arises as a result of
investigation by a court of inquiry, wherein the provisions of sub-rule of rule
183........."
49. Summary of evidence. (1) Where the case is adjourned for the purpose of
having the evidence reduced to writing, the officer ordering the same may either
prepare the summary of evidence himself or detail another officer to do so.
(2) The witnesses shall give their evidence in the presence of the accused and
the accused shall have right to cross-examine all witnesses who give evidence
against him, and the questions together with the answers thereto shall be added
to the evidence recorded....."
[13] It is observed that the plea made by learned counsel appearing
for the petitioner that the principle of natural justice was not followed,
accordingly negated and insofar as other contention that rules and procedure
were not followed, it is seen from the record that respondent following section
11(1) of the Assam Rifles Act, 2006, read with Rule 20 of the Assam Rifles
Rules 2010 issued show cause notice and call for the explanation and also
conducted enquiry and since, the cause of action was initiated on 29.09.2014
and by the time enquiry was conducted and in the meanwhile the parties
approached the Court and, thereafter, it consumed some time. The subject
matter being the consideration of any limitation, the respondents have
expedited the matter in deciding the case by taking up matter by way of
written statement and more so, when it is seen from the record that Mr. CC
Mathew expressed his interest not to attend the Assam Riles Court of
enquiry due to life threat and he approached Delhi High Court by filing W.P
(Crl) No. 2420 of 2014 and though there is a direction from Delhi High Court
to provide sufficient protection despite that he has expressed his disinterest
and only cooperated by way of written statement.
For better appreciation of the case, the relevant portion of the
order dated 09.03.2022 passed by the DG, Assam Riles is extracted hereunder
along with Section 11(2) and Section 98 of the Assam Rifles Rules 2010
which reads as under :-
"(C) The competent authority was empowered to terminate your service by way
of dismissal under Section 11 of Assam Rifles Act, 2006 read with Rule 20 of
Assam Rifles Rules, 2010 on the ground of misconduct as your trial by way of
GARC had become impracticable. The subject matter of action taken a against
you pertains to 2014 and a lot of time had elapsed due to long pending litigation
which only resulted an assembly of GARC infeasible due to which the trial
became time barred as per Section 98 of Assam Rifles Act, 2006. Law position
with respect to power to competent authority to take administrative action when
the trial becomes impracticable on account of limitation is well settled by Hon'ble
Apex Court in the case of Union of India & Ors Vs Harjeet Singh Sandhu (2001) 5
SCC 593. Thus, the competent authority i.e. IG AR (North) was well within its
power to terminate your services on the ground of misconduct of accepting
illegal gratification."
11. Dismissal, removal or reduction by Director-General and by other officers.
(1) The Director-General, Additional Director-General or any inspector-General
may dismiss or remove from service or reduce to a lower grade or rank or the
ranks any person subject to this Act other than an officer.
(2) An officer not below the rank of Deputy Inspector-General may dismiss
remove from the service any person under his command other than an officer or
a subordinate officer of such rank or the ranks as may be prescribed...."
20. Termination of service of persons, other than officers on account of
misconduct - (1) When it is proposed to terminate the service of a person subject
to the Act other than an officer, he shall be given an opportunity by the
competent to dismiss or remove him to show cause in the manner specified in
sub rule (2) against such action
Provided that this sub-rule shall not apply-
(a) where the service is terminated on the ground of conduct which has led to
his conviction by a Criminal Court or a Force Court, or
(b) where the authority as specified in rule 17 is satisfied that for reasons to be
recorded in writing, it is not expedient or reasonably practicable to give the
person concerned an opportunity of showing cause.
(2) When after considering the reports on the misconduct of the person
concerned the authority as specified in rule 17 is satisfied that the trial of such a
person by the Force Court is inexpedient or impracticable, but is of the opinion,
that his further retention in the service is undesirable, it shall so inform him
together with all reports adverse to him and he shall be called upon to submit, in
writing, his explanation and defence............................."
Section 98 of the Assam Rifles Rules 2010 which reads as under :-
98. Period of limitation for trial (1) Except as provided by sub-section (2), no
trial by an Assam Rifles Court of any person subject to this Act for any offence
shall be commenced after the expiration of a period of three years and such
period shall commence-
(a) on the date of the offence; or
(b) where the commission of the offence was not known to the person aggrieved
by the offence or to the authority competent to initiate action, from the first day
on which such offence comes to the knowledge of such person or authority,
whichever is earlier, or (c) where it is not known by whom the offence was
committed, from the first day on which the identity of the offender is known to
the person aggrieved by the offence or to the authority competent to initiate
action, whichever is earlier:
Provided that in computing any period under this section, the period during
which the proceedings of investigation has been stayed by any court in such
offence by injunction or order, the period of the continuance of the injunction or
order, the day on which it was issued or de, and the withdrawn, shall be
excluded.
(2) The provisions of sub-section (1) shall not apply to a trial for an offence of
desertion or for any of the offences mentioned in under section 30.
(3) In computation of the period of three years under sub-section (1), any time
spent by such person in evading arrest after the commission of the offence shall
be excluded."
[14] In view of the above, this cannot be said that opportunity was
not given. So far as, the issue that the punishment is excessive and
disproportionate; it is to be borne in mind, that the petitioner who is working
in Armed service in a responsible position and as subedar and in the event,
he is supposed to perform his duties with high integrity and as seen from his
explanation which is as under:-
"...... b. A lenient punishment which may not take away my
livelihood may be considered for lapses if any in taking Rs. 5000/- from the
hands of Mr. CC Mathew though I had taken the same with the thought that the
money was given by Mr. CC Mathew for the purchase of CSD items...."
[15] Accordingly, this Court feels that in the process of departmental
enquiry, even if any minimum contradictions are there, when the petitioner in
armed forces, any such kind of benefit of any minor omissions in procedures if
any, cannot be extended to him and more so, when the petitioner has
categorically admitted receipt of the amount, which he is not supposed to
take either for purchase of CSD items or anything and there cannot be any
monetary transaction between the Mr. CC Mathew and the petitioner. The
Hon'ble Apex Court, in Union of India and Others vs. Harjeet Singh
Sandhu with Union of India and Others Vs. Ex-Capt. Harminder Kumar
reported in (2001) 5SCC 593 passed a judgment. The relevant portion of this
judgment is extracted hereunder:-
"34. The Constitution Bench has further held that disciplinary enquiry is not
expected to be dispensed with lightly or arbitrarily or out of ulterior s motive or
merely to avoid the holding of an enquiry or because the department's case
against the government servant is weak and must fail. It is not necessary that a
situation which makes the holding of an enquiry not reasonably practicable
should exist before the disciplinary enquiry is initiated against the government
servant; such a situation can also come into existence subsequently during the
course of an enquiry. Reasonable practicability of s holding an enquiry is a
matter of assessment to be made by the disciplinary authority. The satisfaction
of the authority is not immune from judicial review on well-settled parameters of
judicial review of administrative decisions. However, if on the satisfaction
reached by the authority two views are possible, the court will decline to
interfere.
36. The learned Additional Solicitor-General cited a few examples wherein trial
by Court Martial may be rendered "impracticable", to wit:
(i) a misconduct amounting to an offence having been rendered not triable by
Court Martial by expiration of the period of limitation h prescribed by Section
122;
(ii) a Court Martial having been dissolved after its commencement on account of
the number of officers required by the Act to validly constitute a Court Martial
being reduced below the minimum or any other exigency contemplated by
Section 117 occurring and the Court Martial cannot be convened to commence
afresh on account of bar of limitation under Section 122 having come into play:
(ⅲ) the Central Government, the Chief of the Army Staff or any prescribed officer
having annulled the proceedings of any Court Martial limitation under on the
ground that they are illegal or unjust within the meaning of Section 165 of the
Act and by that time the bar of Section 122 having come into play;
(iv) any finding or sentence of a Court Martial requiring confirmation having
been ordered to be revised by order of the confirming authority but in spite of
such revision having not been confirmed once again and a subsequent revision of
finding or sentence being not contemplated by the provisions of the Act; rather a
revision once only having been provided by Section 160;
(v) a person subject to the provisions of the Army Act having secured a stay
order from a court of law on commencement of Court Martial and by the time the
stay order is vacated by the court of law the bar of limitation provided by Section
122 coming into play."
40. In Illustration (v), the ball will be in the court of the delinquent, officer. Once
a stay order has been vacated, in spite of the expiry limitation for
commencement of court-martial proceedings under Section 122 of the Act, the
option to have the delinquent tried by a Court Martial or to of invoke Section 19
read with Rule 14, depending on the facts and circumstances of an individual
case, would still be available to the Central h Government or the Chief of the
Army Staff. In Union of India v. Major General Madan Lal Yadav (Retd) this
Court has invoked applicability of maxim nullus commodum capere potest de
injuria sua propriano man - take advantage of his own wrong to hold that the
delinquent officer Isaving himself created a situation withholding
commencement of trial, he che would be estopped from pleading the bar of
limitation and the trial commenced on vacating of the the judicial order of
restraint on Court Martial shall be a valid trial. The learned Additional Solicitor-
General pointed out 123 the Act, Parliament has by although in the category of
cases illustrated by Illustration (v) above in se of an offender who ceases to be
subject to the 1 Act 37 of 1992 amended sub-section (2) of Section 123 so as to
exclude the that al time during which the institution of the proceedings in
respect of the offence has been staved by injunction or order from computing the
period of limitation but a similar provision is not made in respect of the period of
limitation for trial by a Court Martial of any person subject to the Act, as the
respondents herein are. This deliberate omission by Parliament to provide for
exclusion from calculating period of limitation in Section 122 on the lines of the
provision for exclusion in Section 123 lends strength to his submission that
inasmuch as a person subject to the Act would be amenable to Section 19 of the
Act even after the expiry of the period of limitation for trial, provision for
extension in the period of limitation under Section 122 was unnecessary. If the
expiry of the period of limitation for commencement of d. Court Martial was to be
given effect to, the consequence to follow would be that the person would not be
liable to be tried by a Court Martial and hence would also not be able to be
inflicted with a wide variety of punishments awardable by a Court Martial under
Section 71; nevertheless, he would be liable to be dismissed or removed from
service under Section 19. though that action shall be capable of being taken
subject to formation of opinion as to e the undesirability of the person for further
retention in service. We find merit in the submission of the learned Additional
Solicitor-General.
41. Having thus explained the law and clarified the same by providing
resolutions to the several illustrative problems posed by the learned Additional
Solicitor-General for the consideration of this Court (which are illustrative and
not exhaustive), we are of the opinion that the expiry of I period of limitation
under Section 122 of the Act does not ipso facto take away the exercise of power
under Section 19 read with Rule 14. The power is available to be exercised
though in the facts and circumstances of an individual case, it may be
inexpedient to exercise such power or the exercise of such power may stand
vitiated if it is showing; to have been exercised in a manner which may be called
colourable exercise of power or an abuse of g power, what at times is also
termed in administrative law as fraud on power. A misconduct committed a
number of years before, which was not promptly and within the prescribed
period of limitation subjected to trial by a Court Martial, and also by reference to
which the power under Section 19 was not promptly exercised may cease to be
relevant by long lapse of time. A subsequent misconduct though less serious may
aggravate the gravity of 624 earlier misconduct and provide need for exercise of
power under Section 19 That would all depend on the facts and circumstances of
an individual ca No hard-and-fast rule can be laid down in that behalf. A broad
proposition that power under Section 19 read with Rule 14 cannot be exercised
solely on the ground of court-martial proceedings having not commenced within
the period of limitation prescribed by Section 122 of the Act, cannot be accepted.
In the scheme of the Act and the purpose sought to be achieved by Section 19
read with Rule 14. there is no reason to place a narrow construction on the term
"impracticable" and therefore on availability or happening of such events as
render trial by Court Martial impermissible or legally impossible t not practicable,
the situation would be covered by the expression by Court Martial having become
"impracticable".
[16] In view of the same, it is observed that the punishment imposed
upon the petitioner cannot be construed that the same is disproportionate or
excessive and, thus, the order passed under Section 11(2) of Assam Rifles Act,
2006, read with Rule 20 of Assam Rifles Rules, 2010 of termination from
service is appropriate and the order confirmed by the appellate authority vide
order dated 09.03.2022, rejecting the appeal is also stands upheld and thus,
the writ petition fails and the same is liable to be dismissed.
Therefore, in view of the above discussion, the present writ
petition stands dismissed. As a sequel, miscellaneous application(s) pending, if
any, shall also stand closed.
JUDGE
Paritosh
SABYA Digitally signed
by SABYASACHI
SACHI GHOSH
Date: 2025.04.30
GHOSH 10:36:20 +05'30'
