Judgment & Order (Cav):
1] Heard Ms. S Bora, learned counsel for the petitioner. Also heard Ms. B Sarma, learned Central Government Counsel, for the respondents.
2] The petitioner was enrolled in the Assam Rifles in the year 2008 and after completion of this basic training he was posted in 41 Assam Rifles. It is stated on behalf of the petitioner that in the month of April, 2017 he was posted at Zubza Post, 41st Assam Rifles C/O 99 AP( from his home and it was conveyed that his daughter was seriously ill and was admitted at hospital. Thereafter, he applied for 60 days leave before the superior authorities but after several requests his leave was not granted and his daughters’ health was deteriorated day by day. As such, the petitioner left the post voluntarily on 04.05.2017 and rejoined after 74 days. After his rejoining the authorities put him under rigorous imprisonment in the military custody for 14 days from 13.01.2018 and he incurred his 1st Red Ink Entry. The petitioner incurred his second Red Ink Entries due to the allegation of consuming liquor, who as per the petitioner was false allegation. 3rd red ink was also incurred by the petitioner due to allegation of procurement of liquor from unauthorized sources and found intoxicated and the fourth red ink was also incurred because of consumption of liquor. However, before incurring red ink entries on all occasions he had to underwent rigorous imprisonment. Thus, the petitioner incurred four ‘red ink entries’ during his services. The petitioner was served with show-cause Notice dated 22.05.2024 which he had received on 25.05.2024, whereby the petitioner was directed to submit his reply within 15 days. The petitioner filed his reply on 03.06.2024 with a prayer that the allegations are false. However, by order dated 05.08.2024 the Authorities discharged him from service being an incorrigible offender with effect from 11.08.2024. Against the said discharge order dated 05.08.2024, the petitioner had filed this writ petition being WP(C) No.4033/2024.
3] Learned counsel for the petitioner submits that perusal of the showcause notice dated 22.05.2024 reveals that the four Red Ink Entries in the service dossier of the petitioner are not serious in nature. It is submitted that the petitioner had submitted his reply to the show-cause notice dated 22.05.2024 on 03.06.2024 giving explanation to all the charges in which he was charged and requested the authority to set aside the charges and allow him to complete his 20 years of service as he has already completed 16 years of his service. However, without considering his prayer made in his reply dated 03.06.2024, the Authorities by order dated 05.08.2024 discharged him from service being an incorrigible offender with effect from 11.08.2024. It is submitted that the discharge order of the petitioner due to the four Red Ink Entries in his service dossier was done in a mechanical manner and the gravity of the four Red Ink Entries was not considered. It is further submitted that no reason has been assigned in the order dated 05.08.2024 to indicate as to why the reply given by the petitioner has been found to be not satisfactory.
4] Learned CGC for the respondents vehemently disputes the contention of the learned counsel for the petitioner. Learned CGC referring to the affidavitin- opposition as well as the additional affidavit filed by the respondents submits that the history of misconduct for which the petitioner incurred Red Ink Entries have been described in detailed in the said affidavits. There is no denial by the petitioner that these episodes which are described in the affidavit-in-opposition leading to incurring red ink entries by the petitioner were incorrect. He refers to the various sections of the Assam Rifles Act, 2006 to contend that the Act contains detailed provision relating to intoxication, absence without leave as well as overstay. It is submitted that the respondent authorities have time and again put the petitioner to notice so that he may correct his conduct and make himself worthy for being retained in the services of the Assam Rifles. She submits that the petitioner was show-caused before issuance of the impugned order and after considering his reply, discharge order was issued. However, the showcause notice dated 22.05.2024 as well as the discharge order dated 05.08.2024, which are impugned in the present writ petition, will reveal that the petitioner admitted to his misconduct which incurred red ink entries but failed to rectify his conduct and thereby rendered himself ‘incorrigible offender’. The petitioner was therefore discharged from service by the impugned order dated 05.08.2024.
5] In rejoinder, learned counsel for the petitioner has reiterated his contentions made in the writ petition.
6] I have heard learned counsel for the parties and perused the pleadings available on record.
7] The four Red Ink Entries entered into the service dossier of the petitioner are extracted below:
8] On consideration of the four Red Ink Entries awarded to the petitioner, it is seen that the 1st Red Ink Entry was incurred when the petitioner underwent 14 days rigorous imprisonment in Force Custody and 14 days pay fine due to unauthorized leave for 74 days from 04.05.2017. The 2nd Red Ink Entry was incurred when the petitioner was imposed 14 days rigorous imprisonment in Force Custody due intoxicated state in unit lines on 30.04.2018 and the 3rd Red Ink Entry was incurred when the petitioner again underwent for 14 days rigorous imprisonment in Force Custody due to procurement of liquor from unauthorized source and was found in an intoxicated state on 17.10.2021; and the 4th Red Ink Entry was imposed as the petitioner had to suffer imprisonment for a period of fourteen (14) days in a force custody as he was found in an intoxicated state on non-liquor issue day. The Assam Rifles Act, 2006 lays down detailed provisions with regard to the procedure prescribed for imposition of punishments. Section 57 of the Assam Rifles Act, 2006 lays down the punishment that may be inflicted in response to the offences committed by the persons subject to this Act and convicted by the Assam Rifles Courts. Dismissal from service is one of the punishments prescribed. Minor punishments are prescribed under Section 62 of the Assam Rifles Act, 2006. Section 86 of the Act provides the kind of Assam Rifles Courts required to be constituted. There are three Courts that may be constituted under Section 86 of the Assam Rifles Act, 2006: i). General Assam Rifles Court, ii) Petty Assam Rifles Court and iii) Summary Assam Rifles Court.
9] The powers to convene these Courts are also prescribed in the subsequent section of the Act. The Assam Rifles Regulations under Regulation 107 lays down the procedure for removal of undesirable, incorrigible and inefficient subordinate officers under the officers and other enrolled persons. Regulation of 107 of the Assam Rifles Regulations, 2016 is extracted below:
107. Removal of undesirable, incorrigible and inefficient Subordinate Officers, Under Officers and other enrolled persons.
(a) A Subordinate Officer, Under Officers and other enrolled person who by his conduct has proved himself undesirable, incorrigible, inefficient and whose retention in the service is therefore considered unsuitable for the Force will be recommended for discharge/dismissal from service. Dismissal should only be recommended where an Assam Rifles Court, if held, would have awarded a sentence not less than dismissal but trial by a Assam Rifles Court is considered impracticable or inexpedient. In other cases, recommendations will be for discharge from service.
(b) Before recommending or sanctioning discharge, the following points must be considered:-
(i) If lack of training is the cause of his inefficiency, arrangements will be made for his further training.
(ii) If an individual has become unsuitable through no fault of his own, he will be recommended for suitable extra regimental employments instead of discharge from service.
(c) The procedure for dismissal/discharge of unsuitable subordinate officer/under officer/enrolled person will be as under:-
(i) As provided under Rules 24 and 25 of Assam Rifles Rules, the person concerned, subject to the exception mentioned therein, shall be served with a Show Cause Notice against the contemplated action.
(ii) Preliminary enquiry. Before recommending discharge or dismissal of an individual the authority concerned will ensure that an impartial enquiry (not necessarily a Court of Inquiry) has been made into the allegations against him and that he has had adequate opportunity of hearing.
(iii) Rule 24 of the Assam Rifles confers powers on the Commandants of the Assam Rifles Units/establishment to discharge any subordinate officer/under officer/enrolled persons of Assam Rifles. However, the power of discharge by the Commandant shall be exercised with prior approval of immediate superior officer not below Sector Commander in case of Under Officers and other enrolled person and that of Inspector General Assam Rifles in case of Subordinate Officers.
iv) After compliance of the provisions enumerated above, a show cause notice will be served on the individual affording him an opportunity to explain his case. Thereafter, the complete case file will be forwarded to next superior authority/Sector Headquarters for approval of the superior authority/Sector Commander.
(v) The authority competent to sanction the dismissal/discharge of the individual will before passing orders re-consider the case in the light of the individual reply to the show cause notice. A person who has been served a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the end of justice, if the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactorily, he will pass orders accordingly.
10] The regulation 108 of the Assam Rifles Regulations, 2016 prescribes discharge of a subordinate officer on the ground of red ink entries. It is provided that any subordinate officer or under officer or any enrolled person, who has incurred 4 (four) or more red ink entries may be recommended for discharge on the ground of unsuitability, subject to the conditions mentioned therein. Regulation 108 is extracted below:
108. Discharge on ground of red ink entries. A Subordinate Officer, Under Officer or other enrolled person who has incurred four or more red ink entries may be recommended for discharge from the service on the ground of unsuitability, subject to the following conditions:-
(a) After an individual has earned three red ink entries, he shall be warned in writing that his service will be liable to be terminated by the competent authority if he earns one more red ink entry. Such a warning letter shall be issued to him by the concerned Sector Commander through Commandant of the individual.
(b) Each case of individuals having earned four or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences and the aggravating circumstances under which these were committed. The authority competent to sanction discharge under this para shall record reasons for ordering the discharge, or otherwise.
(c) A person who has put in eighteen years of qualifying service for pension may be allowed to complete the required qualifying service for grant of pension before he is recommended for discharge on ground of four or more red ink entries, unless there are compelling reasons to sanction his discharge before completion of the qualifying service for pension, which must be specified in the discharge order.
(d) Before taking the final decision to order the discharge, the person concerned shall be informed through a show cause notice that his retention in the service is considered undesirable for having incurred four or more red ink entries, thereby also calling upon him to show cause as to why he should not be discharged from the service for being considered unsuitable for the service in the Assam Rifles. The individual shall be given minimum fifteen days, after receipt of Show Cause Notice, to submit his reply.
(e) After receipt of the individual's reply, if any, the case shall be put up to the authority competent to sanction the discharge alongwith recommendations of the Commandant of the unit concerned. Before passing the discharge order, the authority competent to sanction the discharge under this para may seek the advise of the Law Officer concerned.
(f) An order of discharge under this para shall be passed by an officer not less than a Sector Commander in the case of Under Officer or other enrolled persons and an officer not less than Inspector General Assam Rifles/Additional Director General Assam Rifles in case of Subordinate Officers.
11] A perusal of the provisions, more particularly, Regulation 108 (b) of the Assam Rifles Regulations, 2016 provides that each case of individual who has earned 4 or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences and aggravating circumstances under which these offences were committed. Clause 108(c) of the Assam Rifles Regulations, 2016 provides that a person who has put in 18 years of qualifying service for pension may be allowed to complete the require qualifying service for grant of pension before he is recommended for discharge on ground of four or more red ink entries, unless there are compelling reasons to sanction his discharge before completion of the qualifying service for pension. A perusal of the relevant provisions, particularly Regulation 108(b) of the Assam Rifles Regulations, 2016, shows that each case involving an individual who has earned four or more red ink entries must be examined on its own merits, taking into consideration the nature and gravity of the offences as well as the aggravating circumstances under which they were committed. Regulation 108(c) further provides that a person who has completed 18 years of qualifying service for pension may be permitted to complete the required qualifying service for the grant of pension before being recommended for discharge on the ground of having four or more red ink entries, unless there exist compelling reasons to order discharge prior to completion of the qualifying service.
12] From a combined reading of the above provisions, it is evident that the mere incurring of four red ink entries does not, by itself, warrant automatic discharge from service. This interpretation is no longer res integra in view of the judgment of the Apex Court rendered in Amarendra Kumar Pandey v. Union of India and Others , reported in 2022 SCC OnLine SC 881, the Hon’ble Supreme Court has clarified that what is contemplated under Regulation 108 of the Assam Rifles Regulations, 2016 is that upon a personnel incurring the requisite number of red ink entries, the authorities are obliged to issue a show-cause notice calling upon him to explain why he should not be discharged from service. Upon receipt of his reply, the competent authority is required to consider the matter in its proper perspective and arrive at a reasoned conclusion as to whether the personnel is suitable for being retained any further in service. It is also pertinent to note that when a case is examined under Regulation 108 to assess the suitability of a personnel for continued service on account of red ink entries, the regulatory scheme ordinarily mandates that if the personnel has already completed 18 years of service, he should be afforded the opportunity to complete the qualifying service required for the grant of pension, unless compelling reasons exist to recommend his discharge before such completion. Turning to the facts of the present case, the petitioner was issued the impugned show-cause notice dated 22.05.2024, wherein he was called upon to explain why he should not be discharged from service in view of his having incurred four red ink entries.
13] The petitioner had furnished his reply on 03.06.2024 which is not disputed by the respondents authority and subsequently, by impugned order dated 05.08.2024, the petitioner stood discharged from service on account of incurring the 4 (four) red ink entries, whereupon the respondent authorities come to the conclusion that the petitioner is an Incorrigible Offender,. The impugned order of discharge dated 22.03.2021 is also extracted below:
“ OFFICE OF THE DEPUTY INSPECTOR GENERAL Assam Rifles HEADQUARTERS 5 SECTOR ASSAM RIFLES, C/O 99 APO ORDER
19011/132/Discp-41AR/DKP/A-2024/1441 Dated 05 August 2024
WHEREAS, it is considered that the conduct of Number G/5017179K Rank Rifleman (General Duty) Name Dharmendra Kumar Poonia of 41 Assam Rifles which has led him to incur four red ink entries is such as to render his further retention in the force service undesirable being an Incorrigible Offender and having shown no improvement during his service.
2 AND WHEREAS, Number G/5017179K Rank Rifleman (General Duty) Name Dharmendra Kumar Poonia of 41 Assam Rifles was afforded an opportunity to show cause against the proposed action vide Headquarter 5 Sector Assam Rifles letter No 19011/96/Discp 41 AR/DKP/A-2024/92 dated 22 May 2024.
3. AND WHEREAS, Number G/5017179K Rank Rifleman (General Duty) Name Dharmendra Kumar Poonia of 41 Assam Rifles has submitted his reply vide application dated 03 Jun 2024. The same was considered in terms of Para 108 of the Assam Rifles Regulations, 2016 and was found unsatisfactory by the undersigned.
4. NOW THEREFORE, in exercise of the power conferred on me under the provision of Section 11 (1/2) of the Assam Rifles Act, 2006, the undersigned hereby discharge the said Number G/5017179K Rank Rifleman (General Duty) Name Dharmendra Kumar Poonia of 41 Assam Rifles from the Assam Rifles being incorrigible offender with effect from 11 Aug 2024 (Afternoon). Indi is entitled to get gratuity benefits as admissible on compulsory retirement under rule 40 of CCS (Pension) Rules 1972.
14] The provision of Section 108 of the Assam Rifles Regulations, 2016 relating to red ink entries read with the judgment of the Apex Court rendered in Amarendra Kumar Pandey (surpa) makes it abundantly clear that incurring four or more red ink entries do not entail automatic discharge of the Assam Rifles personnel. Section 108 (b) provides that each case of individuals having earned four or more red ink entries shall be examined on its own merit depending upon the nature and gravity of the offences. Regulation 108(c) of the Assam Rifles Regulations, 2016 stipulates that a person who has put in 18 years of qualifying service may ordinarily be permitted to complete the requisite qualifying service for the grant of pension before being recommended for discharge on the ground of having incurred four or more red ink entries. This impugned discharge order which is extracted in ongoing paragraphs was issued in respect of the petitioner as he was found to be Incorrigible Offender. The discharge order dated 05.08.2024 does not reflect the procedure undertaken to examine the case of the petitioner as provided under Section 108 (b) of the Assam Rifles Regulations, 2016. The discharge order merely comes to a conclusion that the petitioner has been found to be an Incorrigible Offender. In the discharge order there is no finding that the petitioner did not follow the command of the superior or had deliberately and repeatedly continued the offences alleged even in spite of the impugned show cause notice having been served. Neither the show cause notice dated 22.05.2024 nor the impugned discharge order dated 05.08.2024, insofar as it pertains to the allegation of intoxication, on the basis of which the petitioner was awarded four Red Ink Entries, is supported by any relevant medical documents to establish that the petitioner was duly examined and as a consequence thereof it was treated as misconduct. The prescription of Regulation 108 (b) of the Assam Rifles Regulations, 2016 has to be given its meaningful interpretation. The provisions of Section 108 (b) of the Assam Rifles Regulations, 2016 provides that each case of individual having earned four or more red ink entries shall be examined on its own merit depending on the nature and the gravity of the offences. There is no dispute that the four Red Ink Entries were proceeded with by the Departmental Authority by way of Summary Court proceedings, resulting in punishment and the same is challenged by the writ petitioner. However, it is pertinent to note that the writ petitioner is a Rifleman (General Duty), not even a middle-ranking officer. Given his limited education and understanding, it cannot be presumed that he was fully aware of the provisions of the Assam Rifles Act, 2006 and the Assam Rifles Regulations, 2016, or the various pronouncements of the Hon’ble Apex Court and High Court laying down the law iHigh hhHiregarding discharge upon four red ink entries. It cannot be expected that the concerned personnel would comprehend the implications in the absence of appropriate measures undertaken by the Assam Rifles authorities during the evaluation procedure conducted under Sections 107 and 108 of the Assam Rifles Regulations, 2016, to ensure that the individual is fully aware of the consequences that may be fall on him or her as the case maybe. In disciplined forces, subordinate officers or non-commissioned officers are generally not expected to defy or question the authority of senior officers, including the Commanding or Deputy Commanding Officer. It is, therefore, unreasonable to expect a charged officer to effectively present his defence without the aid or guidance of a competent officer well-versed in the provisions of the Act, the Rules, and the Regulations. Whether such opportunity was granted to the petitioner is not evident from the pleadings available on record. The offences on which the red ink entries have been incurred as have been discussed above relate to one instance of absence without leave and three instances of intoxication without supporting any medical documents. These offences in view of the Court are not grievous offences which can lead the competent authority to arrive at a finding that the petitioner is an Incorrigible Offender. The term “Incorrigible Offender” not having been defined under the Acts, it is incumbent upon the respondent authority to arrive at a proper finding to prove that the petitioner is an ‘Incorrigible Offender’ and such a conclusion can be drawn by the respondent authorities only upon a proper and accurate evaluation of the materials and the evidences. A reading of the impugned discharge order dated 05.08.2024 as well as the affidavit-in- opposition and the record do not reveal that such process was undertaken by the respondent authorities.
15] Under such circumstances, this Court is of the considered view that the discharge of the writ petitioner under Regulation 107 of the Assam Rifles Regulations, 2016, on the ground of having incurred four red ink entries, appears to have been effected without proper application of mind by the respondent authorities, inasmuch as the mere incurring of four or more red ink entries does not, by itself, entail automatic discharge of an Assam Rifles personnel. Further, the charges against the delinquent official for intoxication and absent from duty without proper leave, in considered opinion of this Court, such charges cannot be considered as serious offences when violation does not threat security of the Unit concerned. Besides that, since for the offences committed, the delinquent has already been punished by way of Rigorous Imprisonment. Therefore, discharge from service on same grounds amount to violation of Article-20 of the Constitution of India “No person shall be prosecuted and punished for the same offence more than once.” Therefore, this Court feels that discharge from duty would be a very harsh punishment and the same is not proper. Accordingly, this Court is of the view that the petitioner has been able to make out a case for issuance of a writ. Since the Court has come to the conclusion that findings arrived at in the impugned discharge order dated 05.08.2024 was not on the basis of a proper and accurate evaluation of the materials and the evidences, this Court allows the writ petition in part by interfering with the impugned order of discharge dated 05.08.2024. The discharge order dated 05.08.2024 therefore is set aside. The petitioner shall be reinstated in service forthwith with full back wages and all other service benefits. The matter is remanded back to the respondent authorities to redecide on the question of the necessity to discharge the petitioner under the provision of Section 107 read with Section 108 of the Assam Rifles Regulations, 2016, keeping in view of the discussions made by this Court in this judgment.
16] Writ Petition is, therefore, allowed and disposed of. No order as to cost. Records, if any, be remitted back forthwith.
 |
This Product is Licensed to , |