UNION OF INDIA Vs BALWANT SINGH
Bench: JAGDISH SINGH KHEHAR,ADARSH KUMAR GOEL
Case number: C.A. No.-005616-005616 / 2015
Diary number: 8744 / 2012
Advocates: B. KRISHNA PRASAD Vs
AVIJIT BHATTACHARJEE
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5616 OF 2015 (Arising from SLP(C) No.12917/2012)
Union of India and others ...Appellants
versus
Balwant Singh ..Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. The respondent was inducted into the service of the Assam
Rifles as a Rifleman on 25.11.1991. He claims to have discharged
his duties to the absolute satisfaction of his superiors, and earned
promotions to higher ranks til l 2007, when he came to hold the rank
of Havaldar. Whilst holding the rank of Havaldar, he was issued a
show cause notice dated 27.08.2008 informing him, that he had
earned four “Red Ink entries”, and asking him why he should not be
discharged from service. The aforesaid show cause notice relied
upon certain provisions of the Assam Rifles Act, 1941, besides the
Assam Rifles Manual, and also Clause 5 of the Record of Office
Instructions 1/2004 (hereinafter referred to as the 'ROI 1/2004').
2. In the show cause notice, the respondent was intimated,
that he had earned nine punishments which included five “Red Ink
entries” and “four Black Ink entries”. The details of the disciplinary
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action taken against the respondent has been depicted in a
compilation, which is a part of the record of the case, and is being
extracted hereunder:
S. NO. OFFENCE DATE OF
OFFENCE STATEMENT OF OFFENCE
PUNISHMENT AWARDED
(a) AA Sec 39 (b) 14 Nov 99 Without sufficient cause of overstaying leave granted to him
10 days pay fine on 30 Nov 99
(b) AR Act 1941 Sec 9 An act prejudicial to good order and discipline
27 Mar 05 Intoxication 7 days forfeiture od pay on 28 Mar 05
(c) AA Sec - 48 24 May 07 Intoxication 14 days pay fine on 01 Jun 07
(d) AA Sec - 48 23 Jul 07 Intoxication Severe reprimand and 14 days pay fine on 23 Jul 07
(e) AA Sec - 48 07 Oct 07 Intoxication Severe reprimand on 15 Oct 07
(f) AA Sec - 48 10 Oct 07 Intoxication 14 days pay fine on 16 Oct 07
(g) AA Sec – 39 (b) 06 Feb 08 Without sufficient cause of overstaying leave granted to him
Severe reprimand on 01 Mar 08
(h) AA Sec - 48 11 Aug 08 Intoxication Severe reprimand on 26 Aug 08
(i) AA Sec – 39 (c) and AA Sec - 48
29 Dec 08 Absenting himself without leave and intoxication
Severe reprimand on 06 Jan 09
It is relevant to mention, that the four “Red Ink entries” taken into
consideration, insofar as the show cause notice dated 27.08.2008 is
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concerned, are depicted at serial nos. (d), (e), (g) and (h) of the
above compilation. The details of the cause/action, why the above
punishments were inflicted on the respondent (at serial nos. (d), (e),
(g) and (h)), have also been expressed in the pleadings. Insofar as
the punishment at serial no. (d) is concerned, the same came to be
imposed on the respondent on account of the fact that on
23.07.2007, while he was on “motor vehicle check post duty” at
19:50 hrs., he was found in an intoxication state. Insofar as the
punishment at serial no. (e) is concerned, it was pointed out, that
the respondent was again found in an intoxicating state, while on
“platoon training duty” at Diphu on 07.10.2007 at 20:45 hrs. The
third punishment at serial no. (g) was imposed on the respondent, on
account of his having overstayed leave, granted to him, for a period
of eighteen days. The last of the above punishments, depicted at
serial no. (h), was imposed on the respondent, on account of the
fact, that he was again found in an intoxicated state on 11.08.2008
at 17:00 hrs., while on “road opening party duty”.
3. In addition to the factual position, indicated hereinabove,
learned counsel for the appellants highlights the fact, that after the
first three “Red Ink entries” were recorded against the respondent, a
notice dated 2.3.2008 was issued to him, informing the respondent,
that he had already been issued three “Red Ink entries”, and that he
was liable to be discharged from service, in case one further “Red
Ink entry” is recorded. The respondent submitted a reply thereto,
undertaking not to commit any further delinquency, and
acknowledging, that in case one further “Red Ink entry” was issued
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to him, he may be discharged from service.
4. In response to the show cause notice dated 27.08.2008,
which was issued to the respondent after the fourth “Red Ink entry”
was recorded on 26.08.2008, the respondent submitted a reply
acknowledging the entire factual position depicted in the show cause
notice. It is therefore, that an order of discharge dated 7.2.2009
was passed. In the above order of discharge, it was mentioned, that
the action had been taken against the respondent, inter alia, under
Clause 5 of ROI 1/2004, as it had been concluded, that he was an
'incorrigible offender'. Despite having so concluded, he was held
entitled to pension and gratuity, as were admissible under the rules.
5. Dissatisfied with the order of discharge, the respondent
addressed a representation dated 20.04.2009 to the Director
General, Assam Rifles. The aforesaid representation was rejected by
an order dated 8.5.2009. The respondent assailed all the adverse
orders passed against him, by filing Writ Petition No. 167(SH) of
2009 before the Gauhati High Court. The aforesaid writ petition was
dismissed by a learned Single Judge on 22.4.2010. The respondent
then preferred Writ Appeal No. (SH)54 of 2010, which was allowed by
an order dated 2.11.2011. The instant special leave petition was
filed by the Union of India and others, so as to assail the order
passed by the Division Bench on 2.11.2011.
6. Delay condoned. Leave granted.
7. A perusal of the impugned order reveals, that the Division
Bench of the High Court did not find any serious fault with the
impugned order passed by the learned Single Judge, except that it
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was felt, that the punishment imposed upon the respondent was
disproportionate, when compared to the charges on which the four
“Red Ink entries” had been recorded. To appreciate the basis of the
directions, and the nature of the direction issued by the High Court
while disposing of the writ appeal filed by the respondent on
2.11.2011, we find it just and appropriate to extract paragraphs 18
and 19 of the order passed by the Division Bench:
“18. Bearing in mind the long service career that the delinquent was left with in the Organization and considering the serious hardship that the family would suffer when the breadearner is discharged at the age of 35 years after 17 years of service and also taking into consideration the discretionary nature of the power under Clause 5 of the Record Office Instructions (ROI) and taking into account the nature of the 4 violations for which the red ink entries were given, we feel that a penalty which will not result in discontinuation of service, would better serve the cause of justice. In the context of the charges, we feel that the punishment is disproportionate and the disciplinary authority should have inflicted a lesser punishment to the delinquent, so that he could continue in service.
19. Consequently we feel inclined to interfere with the impugned order(s) of 07-07-2009 and 08-05-2009 and accordingly the same are set aside and quashed. The petitioner is ordered to be reinstated in service subject to assessment of his physical fitness. However, the respondents are at liberty to impose any lesser punishment balancing the interest of the organization and also of the delinquent. Accordingly we interfere with the impugned judgment of 29-11-2010 and allow this Appeal without any order of cost.”
8. During the course of hearing, learned counsel for the
appellants supported the impugned order of discharge dated
7.2.2009, merely on the strength of Clause 5 of the ROI 1/2004. The
same is being extracted hereunder:
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“5. Discharge/Disposal of Undesirable/Inefficient Personnel : Vide Chapter VIII, Rule 24 of the Assam Rifles Manual confers powers on the commandants of Assam Rifles Battalion to discharge any members of the Assam Rifles below the rank of Nb/Sub. This power may be exercised by a Commandant in case where a person has got four or more red ink entries. In case, it is necessary to send an individual on discharge under this provision, a notice will be served on the individual affording an opportunity to him to explain his case. Thereafter the complete case will be forwarded to Sector HQ along with the notice and reply received from the individual, for the approval of the Sector Commander. Thereafter the documents will be sent to this Directorate, Record Branch/UPAO for final settlement of his IRLA.”
Referring to the above clause, it was the contention of the learned
counsel for the appellants, that before an order of discharge could
be passed by the Commandant, there were certain perquisites which
included that a notice need to be served to the concerned
individual, affording him an opportunity to explain his case. Upon
receipt of his reply and the determination of the issue, the complete
case need to be forwarded to the Sector Headquarter (along with the
notice and the reply, for approval at the hands of the Commander),
and finally all the documents were to be sent to the Directorate,
Record Branch/UPAO for final settlement of the “individual running
ledger account”. It was submitted by the learned counsel for the
appellants, that all the necessary perquisites were complied with,
and more particularly, the show cause notice dated 27.8.2008 was
issued to the respondent, and action was taken against the
respondent, only upon his having submitted a reply thereto. It is
also the contention of the learned counsel for the appellants, that in
the reply filed by the respondent, he had admitted the factual
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position, namely, the recording of four “Red Ink entries”, which
constituted the basis for the show cause notice for discharge, issued
to him.
9. Despite the satisfaction of the terms and conditions of
discharge emerging from Clause 5 of ROI 1/2004, it was the
contention of the learned counsel for the respondent, that it will be
unfair and unjust to discharge the respondent from service, on
account of his unblemished record of service, including the fact that
he had been selected for participation in the Republic Day
contingent for three consecutive years, besides that, he had also
earned laurels for having captured militants and recovered arms and
ammunitions. Additionally, it was the contention of the learned
counsel, that the respondent had discharged unblemished service
selflessly by risking his life on various occasions, only with the
object of obediently discharging the duties assigned to him.
10. The second contention advanced at the hands of the
learned counsel for the respondent, was of discrimination. It was
the contention of the learned counsel for the respondent, that one
Jose Nedum Joseph, who was dismissed from service, had
approached the High Court by filing Writ Petition (C) No. 2099 of
1999, and the order of dismissal from service inflicted upon him,
was reduced to that of discharge. It was submitted, that the
afore-stated Jose Nedum Joseph was alleged to have committed
delinquencies relating to cheating, indiscipline, and such actions,
where the safety of the unit was compromised. Additionally, the
aforesaid Jose Nedum Joseph was also accused of insubordination. It
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was the contention of the learned counsel for the respondent, that
as compared to the delinquency alleged against the afore-stated
Jose Nedum Joseph, the charges levelled against the respondent
were only, that of having been found intoxicated while on duty on
three occasions, and absent from duty without leave on one
occasion. It was submitted, that none of the above charges
compromised the security of the unit, and as such, the punishment
of discharge was highly disproportionate to the accusations levelled
against him.
11. We have given our thoughtful consideration to the
submissions advanced at the hands of the learned counsel for the
rival parties. Assam Rifles is admittedly a disciplined force, wherein
indiscipline would undermine the task entrusted to it. Therefore,
indiscipline at that hands of the uniformed personnel of force,
cannot be tolerated. Insofar as the present controversy is
concerned, after three “Red Ink entries” were issued to the
respondent, wherein he was “severely reprimanded”, he was issued
a notice dated 2.3.2008 informing him that one further “Red Ink
entry” would entail discharge from service. The respondent
acknowledged the receipt of the aforesaid notice, and undertook to
ensure that he would not earn any further “Red Ink entry”. And that,
in case another “Red Ink entry” was issued to him, he would accept
discharge from service. Despite the above, soon after the receipt of
the above notice dated 2.3.2008, yet another “Red Ink entry” was
issued to the respondent on 11.08.2008. Not only that, even a
further punishment was inflicted on the respondent, after the last of
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the four “Red Ink entries”, on 29.12.2008, when he was again
severely reprimanded and issued a further “Red Ink entry” on
6.1.2009, for having absented himself without leave and for having
been found in an intoxicated state, while on duty, on 29.12.2008.
12. In the above view of the matter, we are of the view, that
not only were the parameters depicted in Clause 5 of the ROI 1/2004
fully satisfied, even the Commanding Officer was satisfied that the
delinquency of the respondent could be ignored, and as such, the
order of discharge dated 7.2.2009 was passed. We find no infirmity
in the passing of the above order.
13. Another basis, for concluding the issue in favour of the
respondent by the Division Bench was, that while exercising the
power to discharge, the competent authority had not complied with
the mandate contained in sub-section (3) of Section 4 of the Assam
Rifles Act. Section 4, relied upon by the High Court, is being
extracted hereunder:
“4. APPOINTMENTS AND DISCHARGE
1.) The appointment of all riflemen shall rest with the Commandant.
2.) Before any person is appointed to be a rifleman, the statement in the Schedule shall be read and if necessary explained to him in the presence of a Magistrate, Commandant, and shall be signed by him in acknowledgment of it's having been so read to him.
3.) A rifleman shall not be entitled to be discharged except in accordance with the terms of the statement which he has signed under this Act or under the Assam Rifles Act, 1920.”
14. Learned counsel for the appellants vehemently contended,
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that sub-section (3) of Section 4, referred to by the High Court, is
inapplicable in a situation where the discharge is to be ordered by
the employer. According to the learned counsel, sub-section (3) of
Section 4, would be applicable when the concerned employee claims
discharge after having rendered specified service, as depicted in
“The Schedule Statement”, appended to the Assam Rifles Act,
namely, four years of service in the first instance.
15. We find merit in the contention advanced at the hands of
the learned counsel for the appellants. In a case of discharge by the
employer, namely, the Assam Rifles, sub-section (3) of Section 4 has
no applicability. A collective perusal of Section 4 extracted above,
and “The Schedule Statement” appended to the Assam Rifles Act,
leaves no room for any doubt, that the provisions of the Act also
vest an option with the employees governed by the Act to seek
discharge from service. Section 4(3) is the pointed provision. As
such, it is imperative for us to hold, that the Division Bench of the
High Court erroneously concluded, that the punishment in the
present case, could not have been supported on the basis of the
powers given to the Commandant, under Section 4 of the Assam
Rifles Act.
16. Insofar as the issue of discrimination is concerned, insofar
as the instance of Jose Nedum Joseph has been cited on behalf of
the respondent, we find no comparison thereof with the delinquency
alleged against the respondent. Firstly, because Jose Nedum Joseph
was originally ordered to be dismissed from service. The High Court
had reduced the order of punishment of dismissal to that of
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discharge. In the instant case, on account of the compliance of the
provisions of Clause 5 of ROI 1/2004, the respondent was merely
discharged from duty. The order of discharge was in compliance
with the provisions made by the authorities. Moreover, it cannot be
accepted that the respondent did not compromise the safety of his
unit, whilst he was found to be in an intoxicated state while on duty.
It is quite another matter, that no incident occurred at the time,
when the respondent was found to be intoxicated. The plea of
discrimination is accordingly unacceptable.
17. For the reasons recorded hereinabove, we are satisfied
that the impugned order passed by the Division Bench of the High
Court dated 2.11.2011 deserves to be set aside. Ordered
accordingly.
18. The instant appeal is accordingly allowed. The parties
shall bear their own costs.
…...................................J. [JAGDISH SINGH KHEHAR]
NEW DELHI; …....................................J. JULY 22, 2015. [ADARSH KUMAR GOEL]
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ITEM NO.2 COURT NO.4 SECTION XIV S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No.5616/2015 @ SLP(C) No. 12917/2012 UNION OF INDIA & ORS. Appellant(s) VERSUS BALWANT SINGH Respondent(s) (with appln. (s) for c/delay in filing SLP and interim relief and office report) Date : 22/07/2015 This appeal was called on for hearing today. CORAM : HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
For Appellant(s) Mr. R. Balasubramanian, Adv. Ms. Madhvi Divan, Adv. Ms. Rashmi Malhotra, Adv. Mr. Santosh Kumar, Adv.
for Mr. B. Krishna Prasad,AOR For Respondent(s) Mr. Avijit Bhattacharjee,Adv. Ms.Upma Shrivastava, Adv. UPON hearing the counsel the Court made the following O R D E R
Delay condoned. Leave granted. The appeal is allowed in terms of the signed judgment.
(Renuka Sadana) (Parveen Kr. Chawla) Court Master AR-cum-PS
{signed judgment is placed on the file]