2024:MLHC:583-DB
Serial No.02
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
W.A.No.16/2024
Reserved on : 10.05.2024
Pronounced on: 28.06.2024
Shri.Sashikant Pandey Appellant
…
-vs-
1. Union of India, represented by the
Secretary to the Government of India,
Ministry of Home Affairs, New Delhi.
2. The Director General of Assam Rifles,
East Khasi Hills, Pomlakrai,
Shillong-793 010, Meghalaya.
3. The Colonel Commandant,
9 Assam Rifles, C/o 99 APO,
PIN 932 009.
–
4. The Colonel,
Presiding Officer,
9 Assam Rifles, C/o 99 APO,
PIN 932 009. s
– … Respondent
Coram:
S.Vaidyanathan, Chief Justice
Hon’ble Mr. Justice
Hon’ble Mr. Justice W.Diengdoh, Judge
For the Appellant : Mr. B. Deb, Adv with
Mr. N.I. Choudhury, Adv
For the Respondents : Dr. N. Mozika, DSGI with
Ms. A. Pradhan, Adv
i) Whether approved for Yes
reporting in Law journals etc.:
ii) Whether approved for publication Yes
in press:
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J U D G M E N T
(Made by the
Hon’ble Chief Justice)
This Writ Appeal has been filed, challenging the order dated
05.03.2024 of the learned Single Judge in W.P(C) No.220 of 2022, in
and by which, the Writ Petition, seeking reinstatement was dismissed as
devoid of merits.
Brief Facts as put forth by the Appellant:
2. The Appellant was enrolled in the Assam Rifles as Rifleman
(Barber) and had rendered unblemished service till his suspension order.
There were two charges levelled against him, namely, i) under Section
55 and 23(d) of the Assam Rifles Act for firing 3 shots from his service
weapon against his fellow staff called Deva Nand and ii) leaving his
guard without orders from his Superior Officer. The appellant was
arrested for the incident of shooting another Rifleman in respect of
registration of an FIR in Chiephobozou P.S. Case No.14 of 2015 under
Section 307 IPC and placed under Police custody.
3. A Trial was conducted against him for the above offences and
during Trial in the Assam Rifles Court, the Appellant pleaded not guilty
to both charges. The prosecution examined 19 witnesses, including 3
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eye witnesses and 23 exhibits were marked along with three material
exhibits. After completion of the Trial, the Court found him guilty of
charges and sentenced him to undergo 3 years of imprisonment in Civil
Custody with an order of dismissal from service vide order dated
23.03.2018. The sentence of imprisonment and the order of dismissal
were confirmed by the Inspector General, Assam Rifles (North) on
11.09.2018 by setting off the imprisonment of 3 years from the period
spent by the Appellant in civil custody during investigation. Though the
Appellant preferred an appeal on 16.03.2021 before the Director of
Assam Rifles under Section 139(2) of Assam Rifles Act, 2006 r/w Rule
178 of Assam Rifles Rules, 2010 against the order dated 23.03.2018, it
was rejected on 22.03.2022 on the ground of delay and devoid of merits.
4. Aggrieved by the order of rejection dated 22.03.2022, the
Appellant thereafter approached this Court by way of filing W.P(C)
No.220 of 2022, stating that the punishment imposed on him was
shockingly disproportionate to the offence alleged; that the delay in
preferring appeal occurred due to Covid-19; that there was a serious
irregularity in conducting trial by the Court and that he is without
employment after his dismissal from service.
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5. Learned counsel for the respondents contended that the
Appellant, who was posted at 9 Assam Rifles on 21.05.2000 was found
missing on 11.09.2015 along with his service weapon 5.56mm INSAS
Rifle bearing Regn.No.16315656 between 12.30-13.00 hours from
guard room and it was reported that the Appellant went to his barack
and fired three rounds against one Deva Nand and caused injury in his
right knee, right side of neck and lower abdomen. The said incident was
immediately informed to the Civil Police on the same day, which had
resulted in registration of an FIR No.14 of 2015 under Section 307 IPC.
It was further contended that the Trial was conducted in accordance
with the provisions of Assam Rifles Act and Rules and Summary of
Evidence and Additional Summary of Evidence was carried out as per
Rule 47, in which, the Appellant pleaded not guilty. After full-fledged
trial, the Appellant was found guilty and sentenced to suffer three years
Rigorous Imprisonment to be undergone in civil custody and to be
dismissed from service. It was also contended that there was no
violation of principles of natural justice and the trial was conducted
after following due process of law. It was pointed out that since Assam
Rifles is a Special Act, in terms of Section 5 of Cr.P.C., the provisions
of Cr.P.C. are not applicable to any special law. It was strenuously
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argued that for the sake of argument, if the Appellant is reinstated into
service, he may endanger the lives of other fellow Riflemen and cause
injury. Thus, it was pleaded the order of the learned Single Judge does
not warrant any interference and the present Writ Appeal is liable to be
dismissed.
6. Heard the learned counsel on either side and perused the
material documents available on record.
7. At the first blush, it was submitted by the Appellant that he
had not pleaded guilty to the charges and the charges were duly
established in the domestic enquiry. For the offences committed by him
in respect of firing 3 shots on the co-employee, he was proceeded with
departmentally under Assam Rifles Act, in addition to initiation of
criminal action against him. Since the Appellant was found guilty of
charges, he was sentenced to undergo Rigorous Imprisonment for a
period of three years under Civil custody. Insofar as his past record is
concerned, he had indulged in such type of misconducts on three
occasions and the details of punishments awarded to him on earlier
occasions during his entire service are as follows:
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i) 28 days Rigorous Imprisonment and 14 days pay fine on
“
28.06.2001;
ii) 28 days Rigorous Imprisonment and 14 days pay fine on
30.04.2003; and
iii) 28 days Rigorous Imprisonment and 14 days pay fine on
05.01.2009 .
”
8. In this case, the Appellant shot three rounds of fire and the
fellow Rifleman suffered injuries on the right knee, right side of neck
and lower abdomen. The guilt of the appellant was proved by
examination of 19 witnesses, of whom, there were 3 eye witnesses. We
find that there were no procedural lapses on the part of the respondents
in conducting the enquiry. The next plea taken by the appellant was that
since the incident had taken place during his duty shift, there is no
jurisdiction for the Assam Rifles Court to try the case under Section 56
of the Assam Rifles Act. For the sake of convenience, Section 56 of the
Assam Rifles Act, is extracted hereunder:
56. Civil offences not triable by an Assam Rifles Court.
“ —
A person subject to this Act who commits an offence of
murder or of culpable homicide not amounting to murder
against, or of rape in relation to, a person not subject to this Act
shall not be deemed to be guilty of an offence against this Act
and shall not be tried by an Assam Rifles Court, unless he
commits any of the said offences:
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(a) while on active duty; or
(b) at any place outside India; or
(c) at any place specified by the Central Government, by
notification in this behalf.
”
9. The said submission cannot be accepted for the reason that
the offence had been committed in connection with the employment,
which is construed to be a continuous cause of action and the
misconduct had impact on the employment and the occurrence had
happened within the premises of the respondents. The Supreme Court in
the case of Glaxo Laboratories (I) Ltd. vs. Presiding Officer, Labour
Court, Meerut and Others, reported in (1984) I SCC 1 held as follows:
18. Reference was also made to Tata Oil Mills Co. Ltd. v.
“
Workmen: (1964) 7 SCR 555. This case should not detain us
for a moment because the standing order with which the court
was concerned with that
in that case in terms provided “
without prejudice to the general meaning of the term
, it shall be deemed to mean and include, inter
‘misconduct’
alia, drunkenness, fighting, riotous or disorderly or indecent
behaviour within or withou Mr. Shanti Bhushan,
t the factory.”
however, urged that the judgment does not proceed on the
construction of the expression ’without’ in the relevant standing
order but the ratio of the decision is that purely private and
individual dispute unconnected with employment between the
workmen cannot be the subject-matter of enquiry under the
standing order but in order that the relevant standing order
may be attracted it must be shown that the disorderly or riotous
behaviour had some rational connection with the employment
of the assailant and the victim. Approaching the matter from
this angle, it was urged that in the present case the charge-
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sheet under Clauses 2(c) to 2(h) clearly and unmistakably
were threatened with dire
alleged that the ‘loyal workmen’
consequences with a view to frightening them away from
responding to the duty and this provides the necessary link
between the disorderly behaviour and the employment both of
the assailant and victim. Even where a disorderly or riotous
behaviour without the premises of the factory constitutes
misconduct, every such behaviour unconnected with
employment would not constitute misconduct within the
relevant standing order. Therefore, even where the standing
order is couched in a language which seeks to extend its
operation far beyond the establishment, it would none the less
be necessary to establish causal connection between the
misconduct and the employment. And that is the ratio of the
decision, and not that wherever the misconduct is committed
ignoring the language of the standing order if it has some
impact on the employment, it would be covered by the relevant
standing order. In order to avoid any ambiguity being raised in
future and a controversial interpretation question being raised,
we must make it abundantly clear and incontrovertible that the
causal connection in order to provide linkage been the alleged
act of misconduct and employment must be real and
substantial, immediate and proximate and not remote or
tenuous. An illustration would succinctly bring out the
difference. One workman severely belaboured another for a
(sic) duty on the next day. Would this absence permit the
employer to charge the assailant for misconduct as it (sic) had
on the working in the industry. The answer is in the negative.
The employer cannot take advantage to weed out workmen for
incidents that occurred far away from his establishment.
”
10. The Apex Court, in a recent judgment in the case of Mukesh
Kumar Raigar Vs. Union of India (UOI) and Others, reported in AIR
2023 SC 482 observed that it is absolutely mandatory on the part of the
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personnel in a disciplined force to maintain discipline of the highest
order and the relevant paragraphs run as under:
9. Having regard to the guiding principles, laid down in
“
case of Avtar Singh v. Union of India reported in (2016) 8 SCC
471 and in case of Satish Chandra Yadav v. Union of India
reported in (2023) 7 SCC 536, this Court has no hesitation in
holding that the Single Bench of the High Court had
committed an error in interfering with the order passed by the
Respondents-authorities. The Respondents-authorities had
after taking into consideration the decision in case of Avtar
Singh terminated the services of the Petitioner holding inter-
alia that while the Petitioner was appointed in CISF, a criminal
case was pending against him at the time of his enrolment in
the force, but he did not reveal the same and that there was
deliberate suppression of facts which was an aggravating
circumstance. It was also held that CISF being an armed force
of Union of India, is deployed in sensitive sectors such as
airports, ports, department of atomic energy, department of
space, metro, power and steel, for internal security duty etc.,
and therefore, the force personnel are required to maintain
discipline of the highest order; and that the involvement of the
Petitioner in such grave offences debarred him from the
appointment. Such a well-reasoned and well considered
decision of the Respondent-authorities should not have been
interfered by the Single Bench in exercise of its powers under
Article 226 of the Constitution, more particularly when there
were no allegations of malafides or of non-observance of
Rules of natural justice or of breach of statutory Rules were
attributed against the Respondent authorities.
10 to 12
……
13. In view of the afore-stated legal position, we are of the
opinion that the Division Bench of the High Court had rightly
set aside the order passed by the Single Bench, which had
wrongly interfered with the order of removal passed by the
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Respondent authorities against the Petitioner. The Petitioner
having been found to have committed gross misconduct right
at the threshold of entering into disciplined force like CISF,
and the Respondent authorities having passed the order of his
removal from service after following due process of law and
without actuated by malafides, the court is not inclined to
exercise its limited jurisdiction under Article 136 of the
Constitution.
”
11. The appellant referred to Section 121 of the Assam Rifles
Act, which deals with the procedures to be adopted in respect of a
person with lunacy / insanity to establish that there was a procedural
lapse on the part of the respondents in conducting enquiry. First of all,
the said plea had been taken neither before the General Assam Rifles
Court (GARC) nor before the learned Single Judge and it has been
taken for the first time before this Court. Therefore, we, at the appellate
stage, cannot render any finding on this aspect. Even if it is taken that
the appellant is a lunatic, reinstating an employee with unsound mind in
a disciplined force is dangerous not only to the Force, but also to the
society at large. It is pertinent to mention here that already the appellant
fired three rounds against a co-employee, who, though sustained severe
injuries, escaped from the clutches of Yama Dharmaraja and we do not
want to be a party to enable the appellant to use the balance bullets
against other fellow personnel so as to accomplish his mission / task in
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the years to come. Thus, finding that the order of the learned Single
Judge is perfectly valid, warranting no interference by this Court, the
same is hereby upheld.
12. In the result, W.A.No.16 of 2024 is dismissed.
(W.Diengdoh) (S.Vaidyanathan)
Judge Chief Justice
Meghalaya
28.06.2024
Lam DR-
“ PS”
LAMPHRANG Digitally signed by
LAMPHRANG KHARCHANDY
KHARCHANDY Date: 2024.06.28 11:35:37
+05'30'
PRE-DELIVERY JUDGMENT IN
W.A.No.16 of 2024
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