21.01.2015 By Justice Sunil Hali Aggrieved by the order of discharge by invoking Army Rule 13, the petitioner has come up before this court challenging the same. The facts of the case are as under:
2. The petitioner was enrolled in the Indian Army on 22.12.1995 in the Army Services Corps. During his service period the petitioner had incurred five red ink entries details of which are given herein below: AA Sec Offences Punishment Awarded Date of award (a) Sec.63 Violation of Good Order and Mil Disp- for vis out of bound area at Siliguri on 28 Oct 97
28 days RI 20.Nov.97 (b) Sec 63 Violation of Good Order and Mil Discp- found in out of bound area
28 days RI & 14 days pay fine
02 sept.08 (c) Sec 63 Violation of Good Order and Mil Discp- for staying in unauthorized places wef 03 Oct 08 to 10 Oct while on temp duty to Siliguri
14 days RI 16 oct 08 (d) Sec 54(b) Losing by Neglect identity Card the Property of the Govt issued to him for his use
14 days RI 31 Oct 08 (e) Sec 48 Found intoxicated while on duty
28 days RI
3. On review of the service documents of the petitioner, it was found that he was awarded four red ink entries as per details given below: Sl.No. Date of offence Punishment Awarded AA Sec. Under which punishment Part-II order
1 28Oct. 1997
28 Days RI 63 810 ATC- 0/037/0041/97
2 23Aug. 2001
28 Days RI &
14 Days pay fine
63 898 AT Bn 0/012/00080010
3 03Oct. 2008 to
10 Oct .2008
14 Days RI 63 2 Air Maint Cell 0/0006/001/08
4 04 Oct 2008
14 Days RI 54(b) 2 Air Maint Cell 0/0007/001/08 On the basis of the above a decision was taken to proceed against the petitioner as to whether he is to be retained or to be discharged from service. A decision was taken on 25.11.2008. In pursuance to the decision taken, a communication dated 25.11.2008 was issued by General Officer Commanding for steps to be taken for the discharge of the petitioner from service in accordance with the Army Rules 13(III)(v) and Army HQ letter No.A/13210/159/AG(PS-2)(c) dated 28.12.1988. As a result of the above, a show cause notice was issued to the petitioner on 12.03.2009 indicating the details of five red ink entries which were entered in his service profile. He was directed to file his reply to the show cause notice. The petitioner submitted his reply to the show cause notice on 25.03.2009 wherein he has admitted that four red ink entries were made in his service profile. He requested that he should be allowed to serve in the department keeping in view the fact that he has a large family to sustain .It appears that no formal order of discharge was served on the petitioner and he was discharged from the service without disclosing the reason of his discharge.
4. The petitioner filed an OA No.195/2012 against this order before this Tribunal. The application was rejected on the ground that petitioner should exhaust the alternative remedy of filing a statutory complaint. In view of the directions passed by this Tribunal, the statutory complaint was filed on 30.05.2012. His application was rejected by the respondents on 11.12.2012.
5. The case of the petitioner is that (a) he has been discharged from service in violation of the policy letter of 1988 which provides that the discharge from service consequent to four red ink entries is not a mandatory or a legal requirement; (b) that the rules of natural justice have not been followed in asmuch as no enquiry has been conducted before ordering the discharge. (c ) that the decision to discharge the petitioner was taken before the show cause notice was issued to him which in itself suggest that without examining the case of the petitioner and hearing him the respondents had taken a decision to discharge him.
6. The stand of the respondents is that the petitioner was served with a show cause notice dated 12.03.2009 by the GOC,101 Area which was replied to by the petitioner vide his letter dated 25.03.2009. It was only after examining the reply of the petitioner and after due and proper application of mind, the order of discharge was passed under Army Rule 13(3)III(v). Serving of show cause notice was only a requirement under Rule which has been done in the present case. There is no procedural violation in issuing the order of discharge.
7. The order of discharge was ordered by the Competent Authority after considering recommendations of the Preliminary Inquiry, the recommendations of the Commanding Officer, the petitioners reply to the show cause notice and after due application of mind. It is further stated that the petitioner was found guilty of the offence only after the enquiry in the matter was conducted. Therefore, there was no necessity to hold a fresh enquiry before issuing a show cause notice to the petitioner.
8. We have heard the learned counsel for the parties.
9. The Army HQs have laid down the procedure for removal of undesirable and inefficient JCOs, WOs and ORs under section 22 read with Rule 13 of the Army Rules . Reliance has also been placed on an earlier circular dated 18.12.1988 which provides the guide lines as to how an order of discharge has to be pursued. The following procedure is envisaged: (f) Final Orders by the Competent Authority. The authority competent to sanction the dismissal/discharge of the individual will before passing orders reconsider the case in the light of the individuals reply to the show cause notice. A person who has been served with a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the requirements of the case. If the competent authority considers that termination of the individuals service is not warranted but any of the actions referred to in (b) to (d) of para 2 above would meet the requirements of the case, he may pass orders accordingly. On the other hand, if the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactory, he will pass orders accordingly. Note:-1. As far as possible, JCO, WO and OR awaiting dismissal orders will not be allowed to mix with other personnel.
2. Discharge from service consequent to four red ink entries is not a mandatory or legal requirement. In such cases, Commanding Officer must consider the nature of offences for which each red ink entry has been awarded and not be harsh with the individuals, especially when they are about to complete the pensionable service. Due consideration should be given to the long service, hard stations and difficult living conditions that the OR has been exposed to during his service, and the discharge should be ordered only when it is absolutely necessary in the interest of service. Such discharge should be approved by the next higher Commander.
10. The circular clearly provides that Competent Authority is required to take the following issues for consideration before passing the final order.
a) It is not mandatory to discharge a person who has earned more than four red ink entries in his service profile.
b) The nature of the offences for which each of the red ink entries has been awarded;
c) Not to be harsh with the individual especially when he is about to complete pensionable service.
d) Due consideration has to be given by the Commanding Officer to the long service rendered by the petitioner.
e) Other options has to be examined before ordering the order of discharge.
11. These factors have to be taken into consideration by the Competent Authority before ordering discharge of the petitioner. In the present case the impugned order issued by the respondents does not make any mention of these facts. The order is cryptic and clearly reveals that aforementioned facts have not been taken into consideration by the Competent Authority. The order has been passed in a mechanical manner without examining the import of the circular 28.12.1988. Therefore, per se as per their own admission respondents have failed to take into consideration these aspects before ordering the discharge of the petitioner. Neither has any record which could reflect whether any such deliberation was made by the respondents has been produced nor has the same has been reflected in the counter affidavit. Therefore, we are of the considered view that while ordering the discharge of the petitioner, these facts have not been taken into consideration and the order has been passed in a mechanical manner. Reliance is placed on the judgment of the Delhi High Court in W.P.(C) 4656/2003 , Ex. Sepoy Sube Singh.. Vs. UI & Ors, decided on20.04.2007. Following observations were made in the said judgment: The Brigade Commander, 52 Infantory Brigade has simply signed on the dotted lines without adding a single word to what is already printed in the form. It is difficult to infer a proper application of mind in such circumstances on his part. Learned counsel for the respondent however argued that there may be a separate order elsewhere in the official record disclosing due and proper application of the mind on the part of Brigade Commander. That was indeed a distinct possibility which we did not wish to exclude from consideration. We, therefore, directed the respondents to procure the relevant record from the concerned quarters for perusal of the court. The respondents have not been able to do so nor is any other material produced before us to show that the Brigade Commander had indeed applied his mind to what was relevant for purposes of ordering discharge. Simply sanctioning the discharge would not, therefore, meet the requirements of law. We are conscious of the fact that in matters relating to Armed Forces, courts adopt a liberal approach in accepting as valid orders even when they are not reasoned. Some amount of latitude is in the very nature of military customs, disciplines and hierarchy due to the armed forces. That latitude cannot however extend to upholding an order which does not on the face of it show due and proper application of mind by the authority passing the same. If the Army Headquarter has itself issued instructions setting out the procedure which the decision making process must go through, we see no reason why the authority should ignore the said instructions and pass orders that are non speaking and cryptic. Keeping in view the nature of the order, the implications the same has for the individual and the need for fair play and justice even in matters relating to service in Armed forces, we have no hesitation in holding that an order passed without application of mind would fall short of the legal standards.
12. The next question raised by the petitioner is that decision to discharge him was taken before the show cause notice was issued to him. It is clearly reflected in the communication dated 06.03.2009 placed by the respondents on record. The communication clearly mandate that the petitioner be discharged from service in accordance with the Army Rule
13. Therefore, it is clearly evident that the decision was taken to discharge the petitioner before the requisite steps for his discharge were undertaken. It is trite that if the authority had already decided to discharge the petitioner without examining the reply submitted by the petitioner and in the absence of an enquiry, such order of discharge suffers from irregularities and is against rules of natural justice. The law provides that the employer may tentatively arrive at a conclusion to discharge a person which will be subject to what the delinquent has to say in his reply. Therefore, it is only a tentative conclusion arrived at, before imposing any penalty which can be done only after hearing the petitioner.
13. In the present case the decision to discharge the petitioner was taken much before the show cause notice was issued to him. Therefore, the respondents had decided to discharge the petitioner without examining as to whether it is not a fit case for his retention in service. This is clearly borne out from the impugned order which was passed in a mechanical manner. It further affirms that the mind of the respondents was already made and that they had taken the decision to discharge him before issuing the show cause notice. The order suffers on that count also.
14. Lastly it has been stated by the petitioner that an inquiry was required to be conducted in the matter before the show cause notice was issued. In this behalf petitioner has relied upon a judgment of Honble Punjab and Haryana High Court passed in CWZP No.662/2012, titled as Ex.Driver M.T.Parshotam Dass Vs. Union of India & others. Reliance has been placed by the court on two judgment of Honble Delhi High Court in the cases of Surinder Singh Sihag Vs. Union of India, 2003(1) S.C.T,697 and Ex. NK Shri Bhagwan Vs. Union of India and others, 2009(2) S.C.T
343. In the aforementioned judgment the Honble High Court of Pnjab & Haryana observed as under: The principle of law laid down in the aforesaid judgments is clear: opportunity of putting defence or explanation or adducing evidence is to be given to the concerned employee against whom the action is proposed to be taken under Army Rule
13. For this purpose it is also necessary that a show cause notice is given to the concerned official and only after eliciting his reply thereupon the Competent Authority is to pass final orders. Notwithstanding this principle of law laid down by this Court which is repeatedly followed, the learned counsel for the respondents made an endeavor to impress upon to this Court that this principle is not correct and is based on wrong appreciation of the provisions of the Army Rule. Submission in this behalf is that no such preliminary enquiry was required to be held or opportunity given to the delinquent employee of putting his defence or explanation or adducing evidence in support of his case. It was argued that when the Red Ink Entries were given earlier, they were based on an appropriate enquiry etc. which was needed and, therefore, the requisite procedure as per the Rules for imposing such penalties was followed. Now the action which was taken invoking provisions of Army Rule 13(3) III(v), it was on the basis of those Red Ink Entries and the only consideration was as to whether such a person is to be retained in service or be discharged from service having regard to his service record containing those Red Ink Entries. This argument of the learned counsel for the respondent, however, is to be rejected in view of the aforesaid principle of law laid down by this Court. We have already pointed out above that the consistent view is taken by this Court that requisite procedure is to be followed even when question is as to whether such an employee is to be retained in service or not. The aforesaid judgments of this Court bind us and there is no reason to take a different view. Fact remains that he was discharged/terminated from service on the basis of show cause notice. This action is found to be unsustainable. Therefore, we have no hesitation in setting-aside the termination order. At the same time keeping in view the aforesaid conduct of the petitioner, we are of the opinion that petitioner would not be entitled to any salary of intervening period. We, therefore, set aside the impugned order of termination as illegal and direct reinstatement of the petitioner in service with no benefit of salary and other allowances of the intervening period. We are also of the opinion that for the purpose of l benefits the intervening period during which the petitioner remained out of job shall not be counted.
15. The import of the judgment clearly envisages that an inquiry is required to be conducted in the matter. It further emphasizes that the requisite procedure is to be followed and the only consideration was to see as to whether such a person is to be retained in service or be discharged from service after following the requisite procedure . In the present case such enquiry as contemplated has not been done by the respondents prior to issue of the discharge order. Therefore, the order is in violation of the Article 14 of the Constitution o India.
16. In view of the above, we allow the petition and set aside the order of discharge and direct the respondents to reinstate the petitioner in service. However, he shall not be entitled to any pay and allowances for the periods he was out of service. The period for which the petitioner was out of service shall be counted for his pensionary benefits. This shall not be construed as break in service. He shall be entitled to all other benefits. The process be completed within three months from today. No order as to costs. (SUNIL HALI) MEMBER (J) (J.N. BURMA) MEMBER(A) New Delhi 21.01.2015