Judgment:
Judgment and Order (Oral)
1. Heard Mr. F.U. Borbhuya, the learned counsel appearing for the petitioner. Also heard Mr. K.K. Parasar, the learned Central Govt. Counsel (CGC) representing the respondents.
2. The petitioner was a rifleman in the 14th Assam Rifles and he was prosecuted under Section 69 of the Army Act, 1950 (hereinafter referred to as the Army Act ), for committing a civil offence, punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the the NDPS Act ). The specific charge against the rifleman was that he was found in possession of 36 kgs. of ganja on 30.11.1999, at the Guwahati Railway Station. The petitioner was arrested and handed over to his employer and a Summary Court Martial Proceeding was drawn up against him by the Commandant of the 14 Assam Rifles.
3. The trial commenced at 10:00 Hrs on 6.11.2000 and after closure of trial at 13:05 Hrs., the sentence of 89 days Rigorous Imprisonment (RI) in military custody was ordered against the rifleman. Following the sentencing in the Summary Court Martial, the petitioner was detained in military confinement but after his release from imprisonment, the rifleman was assigned regular duties w.e.f. 5.2.2001.
4. However after 26 months of normalcy, a show cause notice was issued on 3.4.2003 (Annexure-3) by the DIG with the following allegations:-
(a) You were granted 60 days EL wef 20 Nov 99. During your said leave, on 30 Nov 99 at 0645 h at Guwahati Rly Station, you were found in possession of 36 kgs of contraband Ganja which is a violation of Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act 1985 and Army Act Sec 69.
(b) You have also stated to the Court that you were forced by some drug peddlers residing in your colony to indulge into drug trafficking but you failed to report the same to the Civil Police or Army/Assam Rifles authorities. .
5. In his reply dt. 14.5.2003, the rifleman adverted to the RI suffered by him for 89 days in pursuant to the Summary Court Martial proceeding for the same incident and contended that since the case was closed after the major punishment, he should not be punished twice for the same crime. He further stated that as he shall be eligible for VRS in 2 years on completion of 20 years service, he may be allowed to complete his tenure till he can claim voluntary retirement.
6. After purported consideration of the reply of the rifleman, the DIG, Assam Rifles, Nagaland Range (South) on 21.8.2003 (Annexure-4) invoked the powers under Section 20 of the Army Act read with Rule 17 of the Army Rules, 1954 and ordered for dismissal of the rifleman w.e.f. 31.8.20013. Initially the petitioner challenged the dismissal order through the Title Suit No.5/2004 (renumbered as Title Suit No.445/2006) in the Court of the learned Munsiff at Silchar but eventually the suit was withdrawn on 13.11.2006, where-after, this Writ Petition is filed.
7.1. Assailing the legality of the dismissal order, the petitioner contends that he joined the Assam Rifles organization on 26.4.1986 and his dismissal (after 18 years of service) will mean deprivation of all his service benefits and this will lead to avoidable hardship for the dependant family members of the rifleman. Therefore the penalty is contended to be disproportionate in the context of the RI already suffered, on account of the Court Martial proceeding.
7.2. According to the petitioner, he was adequately punished by RI for the civil offence committed by him and when the rifleman was permitted to resume his normal life, there was no justification to belatedly invoke Rule 17 of the Army Rules to punish him twice for the same offence. This is contended to be violative of the fundamental right of the petitioner guaranteed under Article 20(2) of the Constitution.
7.3. The learned counsel for the petitioner Mr. F.U. Borbhuya reads the dismissal order to show that the disciplinary authority failed to take into account the specific submission of unjustified double punishment pleaded in the reply given by the rifleman, to the show cause notice.
7.4. The petitioner also refers to the mortal threat of the drug traffickers because of which, he feared to report to the police or the Army Authorities, for the compulsion faced by him and therefore it is argued that the mitigating factor was not taken into account, while inflicting the penalty of dismissal for the civil offence.
8.1. On the other hand, Mr. K.K. Parasar, the learned CGC submits that the petitioner was found to have committed an offence under the NDPS Act and accordingly he submits that compassion cannot be shown for such serious offender.
8.2. The Govt. counsel contends that Rule 17 of the Army Rules permits infliction of a second penalty for a conviction, inter alia, in a Court Martial proceeding and accordingly it is argued that the petitioner was punished through due process.
9. The striking features of this case are few relevant dates. For example the offence under the NDPS Act was committed on 30.11.1999 and the accused was sentenced to military confinement on 6.11.2000 through a Summary Court Martial proceeding. After his release from RI, the petitioner was restored to duty and was serving normally for about 26 months. But just when the rifleman would have felt that his ordeal is over, the authorities issued the show cause notice on 3.4.2003 (Annexure-3), proposing to again punish the delinquent, because of his earlier conviction in the Court Martial proceeding. The records do not disclose why, after allowing the matter to rest for more than two years and a sense of closure of the past incident, a decision was taken to again punish the rifleman. In the absence of valid reason, despite the provision made in Rule 17 of the Army Rules, when the time gap is taken into account, it has to be held that the petitioner was unjustly penalized twice, for the same offence.
10. Moreover the impugned dismissal order clearly shows that the disciplinary authority had not applied his mind to the rifleman s show cause reply, since there was no discussion on the precise plea of the delinquent.
11. The compulsion faced by the petitioner because of the life threat of the drug peddlers and the rifleman s apprehension of bodily harm to his family at his native place in Cachar District, while he is deployed for duty at the remote station in Nagaland, was known to the superiors as this was reflected in the show couse notice itself but this aspect was totally overlooked while deciding on the penalty of dismissal. According to the petitioner, the seized ganja was carried by a drug peddler who had boarded the Cachar Express train as a co-passenger with the petitioner, when he was proceeding to Ajmer. When the train reached the Guwahati Railway Station and search of the compartment was started by the personnel of the 26 Madras Regiment, the peddler fled the compartment and thus the petitioner was held accountable for the Ganja detected in that compartment. But at the relevant time, the petitioner was facing life threat to his wife and children from the drug peddlers who had coerced the petitioner to be an accomplice in their crime. Examined in this perspective, even assuming the petitioner deserved to be punished for the civil offence, when he was already sentenced in the Summary Court Martial proceeding and had undergone RI for 89 days, a 2nd punishment for the same incident would indeed be harsh for a person whose family members were under mortal threat from the criminal gang.
12. The reopening of the case after the apparent sense of closure is also puzzling as the matter was allowed to rest after the petitioner s imprisonment in the Summary Court Martial proceeding. Therefore the victimization of the petitioner is perceived in the impugned dismissal order.
13. In my opinion, when the petitioner has suffered the punishment of Rigorous Imprisonment, the second punishment of dismissal from service for the same offence is disproportionate and since the petitioner s reply was not taken into account while deciding on the penalty, I hold that the dismissal order dated 21.8.2003 (Annexure-4) is legally unsustainable and the same is accordingly quashed. Consequently the nature of the appropriate relief will have to be decided in this case.
14. In his reply to the show cause notice, the rifleman has expressed his intention to go on voluntary retirement as he had rendered 18 years service then and now the petitioner is aged about 44 years (while the retirement age from service is 60 years). When he is out of service for so many years, fitness might be an issue for re-employment. Therefore I feel that interest of justice would be better served by directing notional reinstatement of the rifleman from the date of his dismissal. Upon reinstatement the petitioner may formally apply for voluntary retirement. This will enable the rifleman to receive his service benefit(s). But it is made clear that arrear wages need not be paid for the period when service was not received by the employer. It is ordered accordingly.
15. With the above order, the case stands disposed of, without any order on cost.