Page No.# 1/18 GAHC020001292021 2025:GAU-NL:303 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : WP(C)/53/2021 SHRI. KEYILEUGONGBE NO.G/5013723,RFN/GD, 'C' COY 23TH ASSAM RIFLES, PERMAMENT ADD - JALUKIE TOWN, P.O JALUKIE TOWN, PEREN, NAGALAND VERSUS THE UNION OF INDIA AND 2 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI 2:THE DIRECTOR GENERAL ASSAM RIFLES HQ IGAR(NORTH) SHILLONG MEGHALAYA 3:THE COMMANDANT 23RD ASSAM RIFLES PIN - 93202 Advocate for the Petitioner : I. IMTI LONGCHAR, KIROBA,SUPONGWATI WALLING,R ATSULA KIPS,KEKHRIESENUO Advocate for the Respondent : YANGER WATI, Z. KULNU Page No.# 2/18 BEFORE: HON'BLE MRS. JUSTICE SHAMIMA JAHAN Advocates For the petitioner : Mr. I. ImtiLongchar For the respondents (R-1, 2 & 3) : Mr. Yangerwati (CGSC) ORDER (O R A L) 15.07.2025 In the present case, the issue that needs to be addressed by this Court is to whether the discharge of the petitioner from his service as a Rifleman, General Duty by the competent authority in the Assam Rifles is lawful in the facts and circumstances of the case. 2. The petitioner has filed this petition under Article 226 of the Constitution of India for a writ in the nature of certiorari and or/mandamus for quashing of the impugned Order dated 04.10.2015 passed by the Brigadier, DIG Office of the Deputy Inspector General Assam Rifles, Headquarters 7 Sector Assam Rifles, by which the petitioner was discharged from his service on the ground of being an incorrigible offender w.e.f. 09.10.2015. The petitioner had also challenged the Warning Letter dated 10.05.2015 issued by the said authority as well as the impugned Show-Cause Notice dated 05.09.2015 issued by the said authority. The petitioner has also prayed for reinstatement of his service in the Assam Rifles. FACTS Page No.# 3/18 3. The facts of the present case is that the petitioner was enrolled in the 23rd Assam Rifles to the rank of Rifleman, General Duty on 19.09.2007 with Regimental No. G/5013723 and he was working in the said post since then. On 10.05.2015, the petitioner was served with a Warning Letter issued by the Brigadier, DIGAR stating that in his service of 8years 5 months and 22 days, he had incurred three red ink entries in his dossier. The details of the offences were mentioned in the said Warning Letter and the same is reproduced below: S/No Offences Date of Offence Statement of Offence Punishment (a) AR Act Sec 26 (b) 01 Oct 2011 Without sufficient cause over staying leave granted to him 28 days RI in force custody on 26 Feb 2014 (b) AR Act Sec 26 (a) 27 Feb 2015 Absenting himself without leave 07 days RI in force custody on 03 Mar 2015 (c) AR Act Sec 35 02 Mar 2015 Intoxication 07 days RI in force custody on 11 Mar 2015 4. In the said Warning Letter, the authority concerned had also informed him to be careful and warned him that if he incurs a fourth red ink entry, action may be taken against him to discharge him from his service under Sub-Section (2) of Section 11 of the Assam Rifles Act, 2006 (here-in-after referred to as the “Act”). However on 16th of June, 2015, the petitioner committed yet another offence for which the authority concerned, after a summary proceeding, inflicted punishment and the same resulted in the Page No.# 4/18 fourth red ink entry in the dossier of the petitioner. Thereafter, a Show- Cause Notice was issued on 05.09.2015 upon the petitioner, by the same authority asking for a show-cause reply from the petitioner. In the Show- Cause Notice the authority had, in no unclear terms, informed the petitioner that he had become an incorrigible offender and that it had become essential to initiate action against him in terms of Section 11(2) of the Act. He was asked to reply as to why his service may not be terminated as per the existing Rules. 5. In pursuant to the said Show-Cause Notice, the petitioner submitted a reply wherein he admitted his actions by stating inter alia that he was embarrassed of his own deeds and asked for an apology and prayed that he may be allowed to continue in his service. The said Show-Cause Reply was in the nature of an apology only. However, on 04.10.2015, the Brigadier, DIGAR had issued the impugned Order by which the petitioner was discharged from his service as Rifleman, General Duty, Assam Rifles on the ground of being an incorrigible offender soldier w.e.f. 09.10.2015. It is this discharge Order that the petitioner has challenged in the instant petition along with the Show-Cause Notice as well as the Warning Letter mentioned above. The discharge order is quoted herein below:- “ORDER 1. WHEREAS, it is considered that the conduct of No G/5013723H Rifleman General Duty Keyileu Gongbe of 23 Assam Rifles, which has led him to getting four red ink entries is such, as to render his further retention in the public service undesirable, being an incorrigible offender and having failed to show improvement during his service. Page No.# 5/18 2. AND WHEREAS, G/5013723H Rifleman General Duty Keyileu Gongbe was afforded an opportunity to show cause against the proposed action vide HQ 7 Sector Assam Rifles letter No. 4RI/23 AR/A/15/1375 dated 05 Sep 2015. 3. AND WHEREAS G/5013723H Rifleman General Duty Keyileu Gongbe has submitted his replies vide letter No Nil dated 12 Sep 2015. The same was considered in term of ROI 1/2004 and was found unsatisfactory by the competent authority. 4. Total qualifying service of the indl upto 08 Oct 2015 is 07 years 10 months and 11 days after deducting non qualifying service. 5. NOW THEREFORE, being the competent authority under Sec 11 (2) of Assam Rifles Act 2006 and in exercise of the powers conferred on me under Assam Rifles Rules 17 and 25 of Assam Rifles Rules 2010 read with Sec 11(2) Assam Rifles Act 2006 and Para 5 of ROI 1/2004, the undersigned hereby discharge the said No. G/5013723H Rifleman General Duty Keyileu Gongbe from the Assam Rifles being incorrigible offender soldier with effect from 09 Oct 2015 (forenoon) from service with benefits as admissible under CCS (Pension) Rules 1972.” SUBMISSIONS 6. Mr. I. Imti Longchar, the learned counsel appearing for the petitioner submits before this Court that the impugned Order dated 10.05.2015 was issued and served by the authority concerned without any documents or Page No.# 6/18 any details as mandated under Assam Rifles Rules, 2010 (hereinafter referred to as the Rules). He relied upon Section 20(2) of the said Rules which reads as under. “… It shall so inform him together with all reports adverse to him and he shall be called upon to submit in writing his explanation and defence”. 7. He submits that as far as the first punishment as mentioned in the impugned Order is concerned, which had awarded him 28 days incarceration in force custody, he stated that the same was not unlawful in as much as there was a full- fledged inquiry by the Court of Inquiry and the decision was taken for regularizing the said offence and the same was debited from the leave account of the petitioner. However, as far as the second, third and the fourth offences are concerned, the learned counsel submits that there was no proper inquiry in support of the same and that he was also not in person when the purported inquiry was conducted. 8. He further submits that as far as the first offence is concerned the petitioner is stated to have advanced proper reasons for overstaying his leave in as much as his wife was pregnant and that he had to take care of her as there was none to look after his wife. The said fact was also stated by the witness during the inquiry before the Court of Inquiry. As far as the second punishment is concerned the learned counsel states that there was no Court of Inquiry and that the punishment awarded by the Commandant for absenting himself without leave was erroneous. He also submitted that the date of entry of the second offence in conduct sheet was 03.03.2015 and on 02.03.2015 the third offence was charged of, for which separate punishment was awarded, is again erroneous. As far as the fourth offence Page No.# 7/18 is concerned the learned counsel stated that it was awarded for intoxication while on telephone duty, which was according to him was also erroneous being similar offence with the third one. 9. The learned counsel also submits that while serving him the Show- Cause Notice, no documents were furnished in support of the same as mandated under the law. He further submits that the respondents discharging the petitioner for being an incorrigible offender under Rule 17 and 25 is against the Rules. He placed Rule 17 of the Rules wherein it is provided that termination can be awarded only on misconduct, unsuitability, unsatisfactory progress in training, furnishing wrong information at the time of enrolment, Physical unfitness and on own request. As such he submits that discharging an enrolled employee on being an incorrigible offender is not provided under the Rules. He also stated that after the impugned Order, he had applied under the Right to Information Act to supply him the relevant documents such as the Appointment Letter, the documents considered by the authority concerned while discharging him, but the same were not furnished to him. Mr. Longchar appearing for the petitioner had relied upon the following judgments to substantiate his point: (i) Union of India Versus Molendra Chowdhury, reported in 1998 (4) GLT 68 (ii) Balwant Singh Versus Union of India reported in 2011 (5) GLT 640 (iii) Amarendra Kumar Pandey Versus Union of India reported in [2022] 11 SCR 223 Page No.# 8/18 (iv) Rupesh Suryavanshi Versus Union of India (Judgment delivered by the Hon’ble High Court of Meghalaya in WP(C)/307/2011) (v) Vijay Kumar Versus Union of India(Judgment delivered by the Hon’ble High Court of Meghalaya in WP(C)/361/2011) 10. The learned counsel also submits that the petitioner was punished twice for intoxication as could be seen from the impugned Order and as such he submits that the petitioner could not have been punished twice for the same offence as that would be in violation of Article 20(2) of the Constitution of India as well as Section 97 of the Act. On these grounds the learned counsel for the petitioner, who had also filed a written submission, has prayed for the reliefs as mentioned above. 11. On the other hand, Mr. Yangerwati, learned CGSC appearing for the respondent nos. 1, 2 and 3, while relying on the affidavit-in-opposition filed by him on 06.04.2022, submits that the petitioner was proved an incorrigible offender by holding four Summary Proceedings under the Act. With regard to the first offence i.e., overstaying the leave granted to him, the Proceeding was conducted by Court of Inquiry as annexed with the affidavit-in-opposition and on completion of the same the punishment was inflicted upon the petitioner for incarceration of 28 days in force custody. With regard to the second offence, i.e., the petitioner absenting himself without leave on 27.02.2015 from 1900 hrs to 2240 hrs during his duty, the learned CGSC submits that the Summary Proceeding was again initiated and on completion thereof a punishment of Rigorous Imprisonment for seven days in force custody was inflicted upon the Page No.# 9/18 petitioner. He stated that with regard to the third offence, i.e., finding the petitioner intoxicated in unit lines, a Summary Proceeding was initiated and on completion thereof the petitioner was inflicted a punishment of Rigorous Imprisonment for seven days in force custody. He thereafter submits that on completion of three Summary Proceedings and on infliction of the punishments, resulting in three red ink entries in the dossier, a Warning Letter was issued to the petitioner intimating him that three red ink entries had already been inserted in his service documents and a fourth one may make him liable for discharge from his office, which was duly received by the petitioner. However, the petitioner did not reform his character and the fourth offence was committed by him. With regard to the fourth offence, i.e., the petitioner being found intoxicated on telephone duty, yet another Summary Proceeding was initiated and on completion thereof the punishment of incarceration for 28 days in force custody was inflicted. As such he submits that the offences were inquired into by the authority concerned and the punishments were inflicted as per Section 62 of the Act. 12. The learned CGSC further submits that a Show-Cause Notice was thereafter issued to him intimating him as to why action may not be initiated against him to terminate him from his service in view of the said red ink entries. The petitioner submitted a reply only with a prayer for an apology. He thereafter submitted that the reply was not found to be satisfactory and as such the impugned Order was passed on 04.10.2015 and in the facts and circumstances of the case he submits that there was Page No.# 10/18 no violation of any provision of the Act and the Rules and by following the proper procedure of law, the petitioner was discharged from his service. 13. I have heard Mr. I. Imti Longchar, learned counsel for the petitioner as well as Mr. Yangerwati, learned CGSC for the respondent nos. 1, 2 and 3. On the aforesaid submissions, this Court is now called upon to adjudicate into the legality and validity of the discharge order dated 04.10.2025 as well as the Show Cause Notice and the warning issued to the petitioner, mentioned above in the facts and circumstances of this case. ANALYSIS 14.At the outset, it is required under the law that the facts of the present case may be considered in order to reach to a finding as to whether the punishments inflicted upon the petitioner was called for, which resulted in the red ink entries in the dossier of the petitioner. It has been held in farmer Vs. Cotton’s Trustees, reported in 1915AC 922in the following terms, “…in my humble Judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only”. 15. The order of discharge was passed on the basis four red ink entries received by the petitioner during his period of service and they are (1) the petitioner was granted leave of absence from 03.09.2011 to 30.09.2011 Page No.# 11/18 but he reported in service on 29.04.2013 i.e., after a period of 577 days, (2) the petitioner absented himself without leave from coy lines from 1900 hrs to 2240 hrs on 27.02.2015, (3) the petitioner was found intoxicated in unit lines on 02.03.2015 at 1830 hrs and (4) the petitioner was again found intoxicated while he was on telephone duty on 16.06.2015 at 2345 hrs. 16. With regard to the first offence, proceeding was conducted by the Court of Enquiry by examining three witnesses, one being the petitioner himself. The petitioner had pleaded his guilt during the enquiry. The petitioner had stated during this statement that on earlier occasions too, he was previously punished twice and that he did not request for any extension of leave. Amongst the other two witnesses, one stated that the petitioner had overstayed his leave without information and the other witness had stated the reasons of his overstaying i.e., his wife was pregnant and he was taking care of her. On completion of the enquiry, the Court on the basis of the evidence recorded its findings that the petitioner failed to join his duty after the expiration of his leave and that he was a habitual offender. The Court also framed the opinion that the petitioner displayed irresponsible behavior and recommended for disciplinary action. The competent authority i.e., the Commandant after an enquiry vide order dated 25.02.2014, found him guilty. However he regularized the absence period and debited the same from the leave account of the petitioner. 17. With regard to the second offence i.e., the petitioner absenting himself without leave from 1900 hrs to 2240 hrs on 27.02.2015, a proceeding before Commandant under Rule 47 of the Rules was conducted. During the proceeding, the charges were read over to the Page No.# 12/18 petitioner to which he pleaded his guilt and two of the witnesses were examined on 03.03.2015. Opportunity was also given to the petitioner to cross-examine the witnesses which however was declined by the petitioner and on conclusion of the hearing, the competent authority finding him guilty for the said offence inflicted the punishment of R.I for seven days in force custody on 01.04.2015. 18. With regard to the third offence i.e., petitioner being found intoxicated in unit lines on 02.03.2015 at 1830 hrs, again a Summary Proceeding was initiated wherein, the charge against the petitioner was read out and explained to the petitioner, to which he pleaded his guilt and two witnesses were examined on 11.03.2015. The petitioner was given the opportunity to cross-examine the said witnesses to which he declined. He was further informed to produce witnesses in his defence to which he declined too. Thereafter on conclusion of the hearing the competent authority i.e., the Commandant finding the petitioner guilty inflicted R.I for seven days in force custody on 13th day of April, 2015. 19. With regard to the fourth offence i.e., the petitioner being found intoxicated while on telephone duty on 16.06.2015 at 2345 hrs, yet another Summary Proceeding was initiated before the Commandant. The charge was read over and explained to the petitioner, to which he pleaded his guilt. Witnesses were examined on 18.06.2015. Opportunity was given to the petitioner to cross-examine the witnesses to which he denied and on completion of the proceeding, the competent authority i.e., the Commandant, finding the petitioner guilty inflicted punishment of R.I for 28 days in force custody. Page No.# 13/18 20. It is therefore noticed that it is not a case that no enquiry was conducted by the authority concerned and proceedings were in fact held against the petitioner and the punishments were inflicted as per Section 62 of the Act which resulted in the red ink entries in the dossier of the petitioner. 21. At this juncture, Rule 20 of the Rules may be referred to. Sub-rule 1 of Rule 20 provides that when it is proposed to terminate service of a person other than an officer, he shall be given an opportunity to show cause. In the proviso to the said Sub-rule, it is further provided that if conduct of an employee results in his conviction by a Criminal Court or Force Court, he may be terminated from his service without a show cause notice from the authorities. However, in the instant case, the show cause notice was issued on 05.09.2015 wherein the petitioner was informed that he has incurred four red ink entries in his dossier and that he has become an incorrigible offender and as such, he was directed to submit his reply. 22. In this connection, it is further apposite to refer to the Assam Rifles Regulation, 2016 (herein after referred to as the Regulation). Although the said Regulation may not apply to the instant case since the order of discharge was in the year 2015, however this Court deems it fit to reproduce Regulation No. 108 specially in view of the fact that the said Regulation was enacted in view of the Apex Court’s decision in Virendra Kumar Dubey Vs. Chief of Army Staff reported in (2016) 2 SCC 627. The said provision deals with discharge on ground of red ink entries. It is provided therein that if an individual earns three red ink entries, he shall be given warning that he may be discharged from his service, if he gets a Page No.# 14/18 fourth red ink entry. It also provides that if an individual gets four red ink entries, his case will be examined on its own merit depending upon the gravity of the offence. Furthermore, it provides that before taking the final decision of discharge, the person concerned should be given a show cause notice and upon consideration of the same, he may be discharged. Therefore, it is apparent that merely on receipt of four red ink entries, the employee may not be discharged, without considering the merit of his case. 23. It is noticed in the instant case that the petitioner was given leave for 27 days but he overstayed not for a month or two but for around more than one and a half years without informing his office. However, the same was condoned but again, on 27.02.2015 he absented himself without leave for which he was punished on 01.04.2015. Without caring for the same, petitioner was found intoxicated during his duty on 02.03.2015 i.e., during the ongoing proceedings against him for the second offence for which he was again penalized. Thereafter again he was found intoxicated on 16.06.2015. Further, in reply to the show cause notice, the petitioner instead of giving reasons for the aforesaid offence simply prayed for apology for his conduct. These facts shows without any doubt that the petitioner was a habitual and an incorrigible offender. 24. In this connection, Regulation No. 107 of the Regulations may be referred which reads as under:- “107. Removal of undesirable, incorrigible and inefficient Subordinate Officers, Under Officers and other enrolled persons. Page No.# 15/18 …………… (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 Page No.# 16/18 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.” 25. In compliance with the aforesaid Regulation, it is noticed in the instant case that a show cause notice was served upon the petitioner and after finding the reply as unsatisfactory the competent authority i.e., the Brigadier, DIGAR passed the impugned order dated 04.10.2015. 26. In Balwant Singh Vs. Union of India, reported in 2011 (5) GLT 640, similar situation arose wherein a Rifleman was discharged from Assam Rifles on getting four red ink entries and out of the four, three related to intoxication and one related to overstay of leave period. In the said decision it was held that merely a person who received four red ink entries, the discharge is not automatic. A discretion is given to the Commanding Officer to consider discharge by looking into the severity and the nature of misconduct. It is a settled position of law that when a discretion is vested in an authority to exercise a particular power, the same is required to be exercised with due diligence. Since order of discharge and the procedure preceding such discharge is of a summary nature, the order of discharge should be a speaking order and the same should indicate how and in what manner the authority exercised the discretionary power. In the instant case, the impugned order reveals in Page No.# 17/18 clear terms that the conduct of the petitioner led him in getting four red ink entries which had made him undesirable to remain in service. His conduct displayed no improvement during his service and that he committed one offence after the other even after he was punished and incarcerated. His reply to the show cause notice was also found to be unsatisfactory by the competent authority and as such, the impugned order was passed. 27. In Amarendra Kumar Pandey (supra), the offences for which red ink entries were received by the appellant therein were of a different nature viz., staying back to take care of his ailing mother, visiting areas without permission of the superiors, losing his luggage and playing cards. Whereas in the present case, the petitioner was found being absent for years, being intoxicated twice and the further admission made by the petitioner himself that he was punished twice before the present four offences. However, he never mended himself and continued with his misconduct. Conclusions 28. Having regard to the nature of conduct of the petitioner, this Court is of the view that the Warning given by the authority concerned on 10.05.2015 was in accordance with the Act and the Rules. In the Warning, three offences were mentioned for which three red ink entries were inserted in the dossier of the petitioner, however, the petitioner on 16.06.2015 indulged himself in yet another offence of intoxication. In compliance of the law, the authorities concerned served him a show cause Page No.# 18/18 notice to which he tendered only an apology for his mistakes. The said show cause notice was in accordance with the law as mentioned above. Finding the reply of the petitioner unsatisfactory, the competent authority in exercise of its powers under Rule 17 and 25 of the Rules and Section 11(2) of the Act, discharged the petitioner from his service under the Assam Rifles, which is according to the law. 29.The petition is dismissed. No order as to cost. JUDGE Comparing Assistant