Saturday, June 22, 2024

HC rejects Assam Rifles personnel’s petition against discharge order

Gauhati High Corut Kohima Bench

DIMAPUR, MAY 20: The Kohima Bench of Gauhati High Court on Monday dismissed a former Assam Rifles personnel’s challenge of an Order of Discharge issued against him 16 years ago from today.
According to Court records, the petitioner is a permanent resident of Akuluto Village in Zunheboto District.
“An Order of Discharge from service dated January 16, 2008 with regard to the petitioner from Assam Rifles is the subject matter of challenge in this writ petition. The primary contention is that provisions of a wrong Act which is not applicable to the petitioner had been applied which had culminated in the Order of Discharge”, stated a judgment issued by Justice Sanjay Kumar Medhi.
While serving in the 10th Assam Rifles in the rank of Rifleman/GD, the petitioner received a show cause notice on December 14, 2007. Prior to this notice, he had been issued with a warning letter on October 7, 2006.
Soon after considering the petitioner’s response to the show cause notice, the AR authorities issued the discharge order on January 16, 2008. “It was stated that the discharge was on incurring 4 (four) red ink entries in the service.
“The petitioner had earlier filed a writ petition, WP(C)/188/2018, before this Court wherein he had put to challenge the Discharge Certificate. However, from the affidavit-in-opposition, the petitioner could come to learn about the order of January 16, 2008; and therefore, the said writ petition was withdrawn on April 1, 2019, however, with liberty to file afresh”, stated the order.
The Counsel for the petitioner challenged the discharge order mainly on the ground that it was based on certain factors not in the Assam Rifles Act but rather under the Army Act. “By drawing the attention of this Court to the show cause notice dated December 14, 2007, the learned Counsel has submitted that 4 (four) numbers of offences were stated and all were under various provisions of the Army Act.
“He has submitted that specific reference has been made to Sections 39(a) and 63 of the Army Act. He submits that when the genesis of the impugned action can be related back to the application of the Army Act, the impugned Order is, wholly unsustainable in law and accordingly liable to be set aside and quashed. As regards the reply by the petitioner to the show cause notice, the learned Counsel has clarified that this Court may not go into the expressions used as the petitioner was not aware of the intricacies involved in law”, it stated.
However, the Central Government Counsel raised a preliminary objection of delay and laches in approaching the Court while pointing out that the petition has been filed after a delay of more than 13 years: Discharge Order issued on January 16, 2008 and the petition filed on April 12, 2021.
“With regard to the merits of the case, the learned CGC has submitted that the petitioner was found to be indulging in misconduct of various nature for which he was given warning from time to time including red entries in the Service Book”, it stated.
Also, the CGC submitted that though the Assam Rifles Act of 1941 was applicable, the petitioner was subjected to the Army Act of 1950 as his unit was under operational control of the Army when he was awarded the four punishments. “It is further submitted that the earlier punishments were never put to challenge by the petitioner in any proceedings”, it added.
The Judge, in his verdict, noted that though the punishments were awarded under Army Act, the show cause notice was issued under the provisions of Assam Rifles Act as well as Assam Rifles Manual. “The point which is required to be noted is that the action of putting four red ink entries in the service of the petitioner was never the subject matter of challenge in any proceedings.
“The present impugned Order is on culmination of the show cause notice which was indeed issued under the provisions of the Assam Rifles Act, 1941. In the considered opinion of this Court, the submissions made on behalf of the petitioner and the challenge projected do not appear to be a sustainable and tenable. The reply to the show cause notice also indicates an admission. Nonetheless, the discharge is on the ground of having four red ink entries in the Service Book and is not on any subjective specification of the Disciplinary Authority wherein there could be any element of bias or procedural impropriety. The discharge is based on objective materials, namely, the four red entries in the Service Book which is an admitted fact”, he ruled.
On the issue of delay in filing the petition, the Judge ruled that though there is no requirement under law to file any application under Section 5 of the Limitation Act in a writ petition, there should be sufficient pleadings in the petition itself, “in case there is any delay in approaching this Court with any cause of action, which is not there”.
“In view of the aforesaid discussion and the facts and circumstances, this Court is of the opinion that no relief can be granted to the petitioner in this case and accordingly, the writ petition is dismissed”, the order read.
(Page News Service)