Th. Hopeson Lamkang vs Union Of India And Others

M.V. Muralidaran, J

This writ petition has been filed by the petitioner seeking to set aside the order of the third respondent dated 06.10.2016 as arbitrary, illegal, bias, unconstitutional and discriminatory and to direct the respondents to reinstate the petitioner in service.

The case of the petitioner is that he entered into service of Assam Rifles as a Rifleman on 9.4.2005 and served the nation for 11 years, 3 months and 1 day before he was forcefully discharged with effect from 7.10.2016. Further case of the petitioner is that he was served a show cause notice on 05.12.2015 stating that in spite of five red ink entries and warnings, he has not shown or displayed any improvement. The show cause notice has been suitably replied by the petitioner on 13.1.2016. While so, months thereafter, on 06.10.2016, the third respondent issued an order discharging the petitioner from service with effect from 7.10.2016.

According to the petitioner, for the charges levelled against the petitioner, warning has to be given and the punishment of discharge from service is not proper. Moreover, the petitioner was directly issued a show cause notice and directly dismissed from service, which is arbitrary, bias, discriminatory and unconstitutional and also in contravention of Article 21, 14 and 46 of the Constitution. Therefore, the impugned order is liable to be set aside.

The respondents filed affidavit-in-opposition, inter alia, stating that in order to afford an opportunity to the petitioner to show improvement in his conduct, several written warnings from his Company Commandant and the Commandant, were issued to him. After the petitioner incurred 3rd red ink entry dated 31.12.2012, he was categorically informed and warned to improve his personal conduct and discipline, otherwise administrative action to discharge him from service would be initiated. Despite having been advised many times and in writing to improve his conduct, he did not shown any change for the better and incurred 4th red ink entry on 23.3.2015 and subsequently 5th red ink entry on 5.10.2015. It is stated that after identifying that the petitioner was incorrigible offender and was not in a position to improve his character, he was issued a show cause notice on 05.12.2015. Having not satisfied with the reply given by the petitioner, the competent authority issued the impugned order and the action of the respondents is not in violation of any Article of the Constitution and also of any rules.

Assailing the impugned order, the learned counsel for the petitioner submitted that the nature and degree of the offences committed by the petitioner cannot be considered as grave and serious to make him unfit to continue in service and that the discharge from service is without following the due process of law as laid down in the Assam Rifles Act, 2006 and its Rules, 2010. He would submit that the show cause notice dated 05.12.2015 was served on the petitioner after a lapse of four months from the last punishment and in fact, in his reply to the show cause notice, the petitioner has prayed that he may be given last chance to improve his character. However, the respondents directly discharged the petitioner from service, which is hit by Article 20(2) of the Constitution of India.

Per contra, supporting the impugned action, the learned counsel for the respondent State submitted that the petitioner did not pay heed to the good advice and counselling of his seniors administered to him from time to time and had committed acts of omission, thereby proving himself to be an incorrigible offender and that the petitioner has failed to change and/or improve his character. He would submit that the petitioner had incurred five red ink entries and one black ink entry in his service during his total service of 11 years, 5 months and 29 days.

The learned counsel for the respondent State further submitted that the petitioner was appropriately tried summarily and awarded punishments by the Commandant under different Sections of the Army Act, 1950 and Assam Rifles Act, 2006 as applicable on being found guilty. In fact, the petitioner was afforded opportunity to show improvement in his conduct after incurring 3rd red ink entry as a warning. However, he has not shown any improvement and accordingly, the respondents discharged the petitioner from service in accordance with the rules. Therefore, there is no necessity to interfere with the impugned order.

I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

There is no dispute that the petitioner was tried summarily under Army Act and Assam Rifles Act, 2006 on six occasions for the offences committed by him and was awarded five red ink entries and one black ink entry in his service dossier during his total service of 11 years, 5 months and 29 days with non-qualifying service of 2 months and 7 days. Since the petitioner has not shown improvement despite warnings, he was discharged from service as an incorrigible offender on 7.6.2016.

Earlier, the petitioner was awarded the following punishments for the offences committed by him:

(i) 3 days rigorous imprisonment in Assam Rifles custody on 6.11.2007 for the offence of violation to good order and military discipline.

(ii) 5 days rigorous imprisonment in Assam Rifles custody on 8.12.2011 for the offence of without sufficient cause overstaying leave granted to him.

(iii) 3 days rigorous imprisonment in Assam Rifles custody on 16.6.2012 for the offence of intoxication.

(iv) 7 days pay Fine on 27.5.2014 for the offence of intoxication.

(v) 28 days rigorous imprisonment in Assam Rifles custody and 7 days fine on 20.3.2015 for the offence of intoxication.

(vi) 28 days rigorous imprisonment in Force custody and 12 days pay fine on 5.10.2015 for the offence of an act prejudicial t good order and discipline of the Force and for the offence of intoxication.

It appears that in order to afford an opportunity to the petitioner to show improvement in his conduct, a warning letter was issued to him after he incurred 3rd red ink entry on 31.12.2012. On a perusal of the said warning, it is seen that the petitioner was categorically informed about his discipline and warned to improve his personal conduct. In the said letter, it has been clearly mentioned that if no improvement is shown, an administrative action to discharge him from service would be initiated as per the prevalent rules.

According to the respondents, despite having been advised many times verbally and in writing to improve his conduct, the petitioner did not show any change for the better and incurred 4 th red ink entry on 20.3.2015 for an offence of intoxication and subsequently, 5th red ink entry on 05.10.2015 for the offence of an act prejudicial to good order and discipline of the Force and also intoxication.

It is seen that after identifying the petitioner to be an incorrigible offender, a show cause notice dated 05.12.2015 was issued to the petitioner and the petitioner has submitted his reply dated 13.1.2016, wherein the petitioner himself admitted that due to his erring attitude and misconduct, he incurred 5 red ink entries. Taking into consideration of the family situation, he prayed to give him last chance to improve his discipline and code of conduct befitting to the tradition of the Assam Rifles. Having not satisfied with the explanation offered by the petitioner, the third respondent issued the impugned discharge order in terms of the provisions of Section 11(2) of Assam Rifles Act, 2006 and Rule 25(1) of Assam Rifles Rules, 2010.

It is the specific plea of the respondents that despite advice and counselling by his superior officers on many occasions verbally and in writing to improve his conduct, the petitioner did not pay any heed to such counseling and continued with his habit of overstaying, intoxication and good order and discipline of the Force.

Under the administrative powers vested in the Commandant under the said scheme/policy decision, it is essential for the Commandant to initiate administrative action against the delinquent to ensure maintenance of discipline in the Unit. The petitioner who was tried summarily for the offences and having been found guilty was awarded punishment for five times for the offences indicated above and was thus identified to be an incorrigible offender and was finally discharged from service with effect from 07.10.2016 F.N.

The learned counsel for the petitioner submitted that discharging the petitioner for incurring 5 red entries in his service record is highly disproportionate and also before placing the red entries in the dossier whatever the case may be, the petitioner should have been given an opportunity to be heard and therefore, discharge of the petitioner from service is hit by Article 20(2) of the Constitution, which guarantees that no person be prosecuted and punished for the same offence more than once.

Article 20 of the Constitution of India, clearly speaks out that "no person shall be prosecuted and punished for the same offence more than once". But in the case in hand, it appears that the petitioner was put in rigorous imprisonments five times and subsequently had been discharged from service as he has not shown improvement in his character.

There is no question of double jeopardy in the present case inasmuch as the action taken by the respondents under the scheme/policy decision of the Assam Rifles is not for discharging the Assam Rifles personnel by way of punishment for misconducts which had already been punished. The basic idea for discharge is that recurring nature of punishments for misconduct mposed on an Assam Rifles personnel would render him unsuitable for further retention in service. The petitioner was not discharged from service for the physical infirmities attributable to duty i.e. duty of Rifleman.

In Union of India and others v. Corporal A.K. Bakshi and another, reported in (1996) 3 SCC 65, the Hon'ble Apex Court held that the policy for discharge envisages that in cases where an airman has been awarded such punishments six times, he is to be treated as a habitual offender and action for his discharge from service should be taken against him under Rule 15(2)(g)(ii). The basic idea underlying the policy for discharge is that recurring nature of punishments for misconduct imposed on the airman renders him unsuitable for further retention. The action taken for discharge is not by way of punishment for the misconducts for which he has already been punished. In paragraph 10, the Hon'bleApex Court held thus:

"10. According to the High Court, the provisions of Rule 18 are attracted in cases where a person is discharged on the basis of the Policy for Discharge for the reason that the action for discharge has been taken on the basis of six punishments which have been imposed on him. We find it difficult to endorse this view of the High Court. The punishments referred to in the Policy for Discharge are punishments that have been imposed for misconduct under the relevant provisions of the Act and the Rules. The Policy for Discharge envisages that in cases where an airman has been awarded such punishments six times, he is to be treated as a habitual offender and action for his discharge from service should be taken against him under Rule 15(2)(g)(ii) of the Rules. This action for discharge is not by way of punishment for the misconducts for which he has already been punished. The basic idea underlying the Policy for Discharge is that recurring nature of punishments for misconduct imposed on an airman renders him unsuitable for further retention in the Air Force. Suitability for retention in the Air Force has to be determined on the basis of record of service. The punishments that have been imposed earlier being part of the record of service have to be taken into consideration for the purpose of deciding whether such person is suitable for retention in the Air Force. The discharge in such circumstances is, therefore, discharge falling under Rule 15(2)(g)(ii) and it cannot be held to be termination of service by way of punishment for misconduct falling under Rule 18 of the Rules. We are, therefore, unable to agree with the High Court that termination of services on the basis of the Policy for Discharge does not constitute discharge under Rule 15(2)(g)(ii) but amounts to removal for misconduct under Rule 18 of the Rules."

In a catena of judgments, the Hon'ble Apex Court held that unless the punishment imposed by the disciplinary authority or by the appellate authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed.

In State of Rajasthan and another v. Mohd, Ayub Naz, reported in (2006) 1 SCC 589, the Hon'ble Apex Court held as under:

"10. This Court in Om Kumar v. Union of India: (2001) 2 SCC 386: 2001 SCC (L&S) 1039 while considering the quantum of punishment/proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor has any irrelevant fact been taken into account nor any illegality committed by the authority nor was the punishment awarded shockingly disproportionate. The punishment was awarded in the instant case after considering all the relevant materials, and, therefore, in our view, interference by the High Court on reduction of punishment of removal was not called for."

In State of Meghalaya and others v. Mecken Singh N. Marak, reported in (2008) 7 SCC 580, the Hon'ble Supreme Court held :

"14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been

The Hon'ble Apex Court had time and again emphasized that the Court's interference with the quantum of punishment cannot be a routine matter. The Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety.

In Vidya Parkash v. Union of India and others, reported in (1988) 2 SCC 459, the Hon'ble Apex Court held that dismissal from service for unauthorized absence from duty for the fifth time is not illegal.

It is apposite to mention that in the warning letter dated 31.12.2012, the petitioner has been warned in the following manner:

"2. You are hereby warned, to be more careful in your conduct. If you incur the fourth red ink entry in your service document, then action will be taken to discharge you from Assam Rifles Service in terms of Sec.11(2) of the Assam Rifles Act 2006 and Rules 17 and 25 of Assam 14 Rifles Rules 2010."

Despite warning given to the petitioner, he was awarded 28 days rigorous imprisonment to Assam Rifle custody and seven days pay fine on 20.03.2015 for the offence of intoxication on 09.12.2014. That apart, fifth time also, the petitioner was awarded 28 days Force custody with two days time for the act prejudicial to good order and discipline of the Force. Thus, it is clear that the petitioner has not shown any improvement and proved to be an incorrigible offender.

In the case on hand, the petitioner had been discharged from service for incurring five red entries for the offences indicated above. The Assam Rifles personnel who had incurred five red entries is to be treated as incorrigible offender and only after such finding, the petitioner had been discharged from service. Therefore, this Court finds no fault in the acts of the respondent authorities.

As stated supra, the petitioner despite counseling and also oral and written warning has failed to show any improvement and continued with his habit of misconducts. This being the situation, there is absolutely no reason for coming to our finding that the quantum of punishment imposed on the petitioner for discharging from service by issuing the impugned discharge order dated 6.10.2016 is shockingly disproportionate and also the decision of the respondent State suffers from procedural impropriety.

The petitioner being a member of Armed Force, high level of discipline is required to be maintained by him. In the case on hand, the petitioner, admittedly, failed to maintain the discipline and had done grave misconduct of overstaying of leave without permission, consumption of liquor while on duty and also done acts prejudicial to good order and discipline of the Force. When there was no sufficient reason for interference with the impugned order, the High Court, exercising jurisdiction under Article 226 of the Constitution of India, cannot interfere with the same. Further, no valid grounds have been made out for interference and therefore, the writ petition is liable to be dismissed.

Accordingly, the writ petition is dismissed. No costs.