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Gauhati High Court Declines Relief To AF Constable Dismissed From Service For Entering Church With A Rifle Under Influence Of Alcohol

LIVELAW NEWS NETWORK
17 Nov 2020 2:10 PM GMT
Gauhati High Court Declines Relief To AF Constable Dismissed From Service For Entering Church With A Rifle Under Influence Of Alcohol
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The Aizawl Bench of the Gauhati High Court on Tuesday refused to exercise its jurisdiction under Article 226 of the Constitution in a case against dismissal of a Constable from the armed forces, while stating that it cannot act as an Appellate Authority over the impugned order. A Bench of Justice Michael Zothankhuma held that the Disciplinary Authority and the Appellate Authority will...

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The Aizawl Bench of the Gauhati High Court on Tuesday refused to exercise its jurisdiction under Article 226 of the Constitution in a case against dismissal of a Constable from the armed forces, while stating that it cannot act as an Appellate Authority over the impugned order.

A Bench of Justice Michael Zothankhuma held that the Disciplinary Authority and the Appellate Authority will have to be considered to be the sole Judge of facts, except when the findings are perverse.

When Can Statutory Alternative Remedy Be Allowed To Be Bypassed For Invoking Writ Jurisdiction Under Article 226? SC Explains

The Single-Judge relied on the decision of the Apex Court in BC Chaturvedi v. Union of India & Ors., (1995) 6 SCC 749, whereby it was held that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline.

"They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof," the Top Court had held.

A Writ Court Cannot Sit In Appeal Over An Administrative Decision, Reiterates SC

The Petitioner was a Constable in the 3rd IR Battalion at Assam. He was dismissed from service on the order of Dy. Inspector General of Police, Mizoram, on grounds of misconduct.

Declining any relief in the matter, the Court remarked,

"The petitioner being from a disciplined force, he should have known better than to enter a place of worship with a rifle, while being under the influence of alcohol, as the said act endangers the lives of the people inside the place of worship."

The allegations against the Petitioner were as under:

Article I: Petitioner was unable to perform his duty as he was found intoxicated with alcohol.

Article II: Instead of sincerely performing his duty, he went inside the Church of 3rd IR Bn Christian Fellowship with his service weapon under the influence of alcohol and in full uniform while the Church service was going on. This creates panic among the Church members.

Article III: Petitioner was found in an intoxicated state on several occasions. He used to create nuisance and disturb his colleague.

Interestingly, the Petitioner had admitted to these allegations before the Disciplinary Authority and he had urged the Authority to take a sympathetic view towards him. Nevertheless, he was dismissed from service subsequent to which he approached the High Court while stating that the charge against him under Article III was false.

Rejecting this submission, the High Court observed that the Petitioner cannot be allowed to blow hot and cold at the same time. It observed,

"A perusal of the petitioner's appeal dated 24.09.2014 shows that he has not disputed the findings of the Enquiry Officer made in the Enquiry Report and his only prayer is to allow him to rejoin his service, as he has turned over a new leaf. In view of the above, the petitioner cannot be now allowed to enlarge the scope of the appeal dated 24.09.2014, by challenging the findings in the departmental enquiry, in the absence of any specific pleadings in the appeal dated 24.09.2014."

Also Read: Petition Under Art. 226&227 Cannot Be Entertained By HC Ignoring The Statutory Dispensation Under Armed Forces Tribunal Act: Kerala HC

Case Title: MS Dawngliana v. State of Mizoram & Ors.

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