R. Banumathi, J.— The present appeal is filed under Section 30 of the Armed Forces Tribunal Act, 2007 assailing the judgment and order dated 6-5-2016 in S. Muthu Kumaran v. Union of India OA No. 96 of 2011, as well as order dated 30-5-2016 in S. Muthu Kumaran v. Union of India MA No. 320 of 2016 passed by the Armed Forces Tribunal, Regional Bench at Jaipur, dismissing the original application filed by the appellant seeking reinstatement in service with all consequential benefits.
2. In a nutshell, the facts leading to the present appeal are as follows. The appellant was inducted in the Indian Army on 26-4-1994 on the post of Havildar/Clerk. The appellant is alleged to have been involved in fraudulent recruitment racket and obtaining illegal gratification in lieu of the same, during his posting in Jammu and Kashmir in the month of September 2006. Accordingly, the appellant was served with a show-cause notice dated 7-6-2010 along with a copy of his confessional statement dated 28-9-2006 asking as to why action be not taken against him. The confessional statement of the appellant was made in his own handwriting and bore his signatures too. In his confessional statement, the appellant is said to have admitted that in collusion with Dafadar/Clerk KNS Rao of ARO Jammu and others he had fraudulently enrolled around six candidates and obtained illegal gratifications from them in lieu of the same.
3. The appellant, vide his reply dated 5-7-2010 denied the allegations made against him in the show-cause notice and submitted that the authority concerned had already held an inquiry in this regard and after recording the evidence had concluded that no charges are proved against the appellant. The appellant was served with a subsequent show-cause notice dated 19-12-2010 asking him to submit additional reply, if any. The appellant submitted additional reply dated 27-12-2010, stating that he was forced to give self-incriminating confessional statement which deserves to be discarded on account of being false and made under coercion. The officiating officer had opined in favour of dropping the proceedings against the appellant. In his opinion dated 26-12-2010, the officiating Commanding Officer submitted that the appellant had already been acquitted from the case concerned by the competent authority and thus, reopening of the case on hearsay evidence of a proven culprit, Dfr/Clk KNS Rao is unwarranted.
4. Based on the materials available against the appellant, inclusive of the reply and additional reply of the appellant, the General Officer Commanding, 26 Infantry Division terminated the services of the appellant vide order dated 18-2-2011 under Section 20(3) of the Army Act read with Rule 17 of the Army Rules. Challenging the termination order dated 18-2-2011, the appellant filed an application under Section 14 of the Armed Forces Tribunal Act, 2007 before the Armed Forces Tribunal on 2-6-2011. The matter was listed for admission on 3-6-2011. Even when the matter was pending before the Tribunal, the appellant filed SB Civil Writ Petition No. 5999 of 2011 before the Rajasthan High Court at Jodhpur. Vide order dated 8-7-2011 WP (C) No. 5999 of 2011, the High Court disposed of the writ petition with liberty to the appellant to file representation before the authority concerned. However, the appellant did not prefer any representation before the authority concerned thereof.
5. The Tribunal took note of the entire facts and circumstances, more specifically, the retracted confessional statement of the appellant and vide its order dated 6-5-2016 OA No. 96 of 2011, dismissed the appellant's application as being devoid of any merit. The miscellaneous application (MA No. 320 of 2016 in OA No. 96 of 2011) filed by the appellant seeking leave to appeal to the Supreme Court under Section 31 of the Act was also dismissed vide order dated 30-5-2016 MA No. 320 of 2016. Aggrieved thereof, the appellant approached this forum by filing an appeal under Section 30 of the AFT Act.
6. The learned counsel for the appellant submitted that the Tribunal ought to have taken note of the opinion of DJAC, as per which no sufficient evidence was available against the appellant. It was further submitted that once the Commanding Officer had come to the conclusion that no charge or trial is made out against the appellant, it was not open to the respondents to terminate the services of the appellant by invoking the administrative power under Section 20 of the Army Act read with Rule 17 of the Army Rules.
7. On the contrary, the learned counsel for the respondents has maintained that no case is made out for interfering with the reasoned order passed by the Armed Forces Tribunal. The General Officer Commanding, 26 Infantry Division was well within its powers under Section 20(3) read with Rule 17 of the Army Rules to terminate the services of the appellant.
8. We have carefully considered the rival submissions and perused the impugned judgment and the materials available on record.
9. As per Section 20(3) of the Army Act, 1950,
“20. (3) An officer having power not less than a brigade or equivalent commander or any prescribed officer may dismiss or remove from the service any person serving under his command other than an officer or a junior commissioned officer.”
Rule 17 of the Army Rules, 1954 requires the dismissal/removal order to be a reasoned one. In the present case, the General Officer Commanding, (GOC), 26 Infantry Division initiated administrative action against the appellant on the ground of being allegedly involved in fraudulent recruitment during the month of August 2006, while he was posted at Jammu. Show-cause notice was duly issued to the appellant and he was afforded an opportunity of filing reply to the show-cause notice as well as an additional reply. The provisions of the Army Act and Rules thereof, as well as the mandate of natural justice was duly complied with in the case of the appellant. Henceforth, the GOC exercised his right under Section 20(3) of the Act coupled with Rule 17 of the Rules, and dismissed the appellant from services w.e.f 10-7-2011. After having rightly appraised the evidence on record and the law dealing with the subject, the Armed Forces Tribunal dismissed the application filed by the appellant, thereby affirming his dismissal from service. We do not find any perversity in the findings of the Tribunal. However, with regard to infliction of punishment of dismissal from service, we are of the view that the Tribunal could have kept in view the long service of the appellant.
10. As a matter of record, the appellant was enrolled in the Indian Army on 26-4-1994 and till his termination on 10-7-2011, he is said to have discharged his services diligently for more than seventeen years. During the period of his service, he had no adverse remarks in his service record except the present one. In our view, when the dismissal order was passed in case of the appellant, the GOC could have taken into account the unblemished service record of the appellant and his long service. If an order of discharge would have been inflicted against the appellant, he still would have been restricted from continuing in service and at the same time, the appellant, who had served diligently for more than 17 years, would have been granted with the benefits accrued on his service rendered so far.
11. No doubt, the dismissal order passed against the appellant was within the powers of the authorities concerned. However, as far as the dismissal from service is concerned, it is an extreme punishment imposed against the appellant. The appellant has to thrive in civil life by doing an appropriate job suitable to his qualification. In the facts and circumstances of the present case, we are inclined to modify the punishment of dismissal from service into discharge from service. The modification of the sentence of dismissal from service into that of discharge will not change the position of the appellant, so as to claim any reinstatement into service. Even if he was discharged from service, in lieu of dismissal from service, the appellant cannot seek for any employment or re-employment into the Army. Therefore, there would not be any grievance for the respondents in the event of punishment of dismissal being modified into that of discharge. At the same time, interest of justice would be served as the appellant would get the benefits like gratuity and other attendant benefits for the service rendered by him and the appellant would also get an opportunity to lead an honourable life in the society.
12. The impugned order passed by the Armed Forces Tribunal in S. Muthu Kumaran v. Union of India OA No. 96 of 2011 dated 6-5-2016 is modified to the extent that the order of dismissal of the appellant from service is converted to that of discharge from service. The appeal is thus partly allowed and the respondents are directed to release benefits available to the appellant for the service rendered by him in the Army. No order as to costs.