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2009 DIGILAW 229 (JK)

Tilak Raj (Ex. Rifleman) v. Union Of India

2009-05-15

SUNIL HALI

body2009
1. Invoking Rule 13(3) III (v) of the Army Rules, the respondents, discharged the petitioner from service on 28-12-1993. The order of discharge was issued on the basis that the petitioner had earned four red ink entries and two black ink entries. Feeling aggrieved of this order of discharge, the present petition has been filed. 2. The petitioner has been appointed on 10-10-1984 as Rifleman. During service of the petitioner, following entries were recorded in his service book: S. No. Period of absence Punishment awarded Whether red and black ink entry. a) Overstayed leave from 22 Feb 86 to 16 Mar 86. 28 days RI on 7 Apr 86 under Army Act Sec.39(b) Red Ink entry b) Absented without leave from 20 Oct 86 to 3 Nov. 1986 28 days RI & 14 days detention on 8 Nov.86 under Army Act sec.39(a) -do- c) Absented without leave from 6 Dec. to 11 Feb. 93 enroute when transferred from MH Bakloh to 167 MH. 14 days pay fine on 18 May 93 under AA Sec. 39(a). (This punishment however subsequently cancelled due to technical error## the fact still remains that he was absent without leave.) Black ink entry. d) Absented without leave on 31 Mar 93 enroute when transferred from MH Delhi Cantt to 167 MH. 7 days RI on 18 may 93 under AA sec.39(a) Red ink entry e) Absented without leave from 4 Apr 93 to 5 May 93 enrotue when dis-charged from 167 MH after treatment. 14 days fine on 19 May 93 under AA Sec.39(a) Black ink entry f) Absented without leave from 10 Oct. 93 to 11 Oct. 93 28 days RI on 18 Nov. 93 under AA Sec.39(a) Red ink entry g) Absented without leave from 6 Feb.94 to 27 Feb. 94 enrotue when dis-charged from 167 MH after treatment. The absent period was converted to part of annual leave But fact remains thathe had absented without leave for the period ibid." - 3. The respondents invoked Rule 13 (3) III (V) of the Army Rules and discharged the petitioner from service. The order of discharge was preceded by a show cause notice, which is stated to have been replied by the petitioner. The order of discharge is challenged by the petitioner on the following grounds : a) That the order of discharge has been passed in violation of rules of natural justice. The order of discharge was preceded by a show cause notice, which is stated to have been replied by the petitioner. The order of discharge is challenged by the petitioner on the following grounds : a) That the order of discharge has been passed in violation of rules of natural justice. b) That no enquiry has been conducted in the matter nor any charge sheet framed. c) That earning of red ink entries, does not mean automatic termination of service, but other factors have also to be considered as contemplated by Army Head Quarters Order dated 28-12-1988, 4. On the other hand, respondents state that the order of discharge has been passed by invoking Rule 13(3) III ( V ) of the Army Rules. The order has been passed looking to the fact that four red ink entries and two black entries have been recorded in petitioners service book. It is stated that continuance of petitioner in the Army was undesirable, as it is likely to affect the discipline in the Army and there is no requirement for holding enquiry in the present case. 5. I have heard the learned counsel for the parties and perused the record. In order to appreciate the controversy, it is important to refer Rule 13 (3) (v) of the Army Rules, the same is quoted hereinbelow: "Category Discharge Grounds of discharge Competent to authorise Manner Authority v) All other classes of discharge Brigade/Sub Area Commander The Brigade or Sub Area Commander before ordering the disharge shall if circumstances of the case permit give to the person whose discharge is contemplated an opportunity to show cause against the contemplate discharge." 6. Rule 13 of the Army Rules states that each of the authorities specified in column -3 of the table shall be competent to discharge from service, person subject to the Act specified in Column-1 thereof on the grounds specified in Column-2. The petitioner being a person under the Act enrolled under the Act, and having been attested, comes in category-5 of the said table as against item -3 of the grounds of discharge of such person. It has been provided that all other classes of discharge shall be the grounds. Rule-13 provides who can be discharged; when he can be discharged; who would discharge and the manner of discharge. It has been provided that all other classes of discharge shall be the grounds. Rule-13 provides who can be discharged; when he can be discharged; who would discharge and the manner of discharge. The first ground of discharge is fulfilment of the conditions of enrolment or having reached the stage, discharged may be enforced. The second ground is on completion of the period of army service only and there being no vacancy in the reserve. The third ground being if found medically unfit for further service and the fourth ground is discharge at the own request of the person seeking such discharge and the last one is all other classes of discharge. The petitioner would come in the last category, as his discharge has been ordered for having earned four red ink entries. 7. The respondents have vide Letter No. A/13219/159/AG/PS 2 ( c ) dated 28-12-1088 issued an order relating to procedure for removal of undesirable and inefficient JCOs, Wos and ORs. Before dealing with the matter of procedure, it is important to mention the object for effecting an order of discharge on a person, who has earned red ink entries. The object reveals that certain persons who have been defaulters and had past record of four red entries, were allowed to continue in the service. Such persons indulged in grave incidents such as forgeries, theft deserting with or without weapons were allowed to continue in service. It also took note of the fact that in case an individual with six red ink entries are involved in serious offences such as stealing an identity card of an officer and selling it cannot be retained. Selling of weapon by the officials was also noted. In order to curb this tendency, the commanding officers were given the power to discharge such personnel who are undesirable for retention in the Army especially after four red entries. The purpose of this is to prevent these personnel from committing bigger crimes which affect the image of the organisation as a whole. 8. Broadly speaking purpose of discharge of such persons who have earned four red entries, was to prevent them from committing bigger crimes in further which would under mine the discipline of the force. 9. Coming to the procedure as laid down under the Act, it will be interesting to note Para-4 and 5 of order dated 28-12-1988. 8. Broadly speaking purpose of discharge of such persons who have earned four red entries, was to prevent them from committing bigger crimes in further which would under mine the discipline of the force. 9. Coming to the procedure as laid down under the Act, it will be interesting to note Para-4 and 5 of order dated 28-12-1988. The same are quoted as under: "4. AR 13 and 17 provides that a JCO/WO/OR whose dismissal or discharge is contemplated will be given a show cause noticed . As an exception to this, services of such a person may be terminated without giving him a show cause notice provided the competent authority is satisfied that is not expedient or necessary practicable to serve such a notice . Such cases should be rare, eg where the interests of the security of the State so require. Where serving of a show cause notice is dispensed with, the reasons for doing so are required to be recorded. See provision to AR 17. 5. Subject to the foregoing , the procedure to be followed for dismissal or discharge of a person under AR 13 or AR 17, as the case may be, is set out below: a) Preliminary Enquiry: Before recommending discharge or dismissal of an individual the authority concerned will ensure: i) that an impartial enquiry( not necessarily a court of inquiry) has been made into the adequate opportunity of putting up his defence or explanation and of adducing evidence in his defence. ii) that the allegations have been substantiated and the extreme step of termination of an individuals service is warranted on the merits of the case. b) Forwarding of Recommendations: The recommendation for dismissal or discharge will be forwarded, through normal channels to the authority competent to authorise the dismissal or discharge, as the case may be , alongwith a copy of the proceedings of the enquiry referred to in (a) above. c) Action by Intermediate Authorities: Intermediate authorities through whom the recommendations pass will consider the case in the light of what is stated in (a) above and make their own recommendations as to the disposal of the case. d) Action by competent authorities: The authority competent to authorise the dismissal or discharge of the individual will consider the case in the light of what is stated in (a) above. d) Action by competent authorities: The authority competent to authorise the dismissal or discharge of the individual will consider the case in the light of what is stated in (a) above. If he is satisfied that the termination of the individuals service is warranted, he should direct that a show cause notice be issued to the individual in accordance with AR 13 and AR 17 as the case may be. No lower authority will direct the issue of a show cause notice. The show cause notice should cover the full particulars of the cause of action against an individual. The allegations must be specific and supported with sufficient details to enable the individual to clearly understand and reply to them. A copy of the proceedings of the enquiry held in the case will also be supplied to the individual and he will be afforded reasonable time to state in writing any reasons he may have to urge against the proposed dismissal or discharge. e) Action on receipt of the reply to the show cause notice: The individuals reply to the show cause notice will be forwarded through normal channels to the authority competent to authorise his dismissal/discharge together with a copy of each of the show cause notice and the proceedings of the enquiry held in the case and recommendations of each forwarding authority as to the disposal of the case. f) Final order 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 persons 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 requirement 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. 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 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. g) Carrying out dismissal/discharge : On receipt of the orders of the competent authority for dismissal/discharge, all action to effect dismissal/discharge will be taken by Regt. Centre/Record Office, or the unit, as the case may be." 10. The aforementioned procedure clearly provides that before recommending discharge/dismissal of an individual, the authority concerned will ensure that preliminary enquiry be conducted and adequate opportunity of putting up his defence or explanation and adducing evidence in his defence be given to the person. Note-2 reveals that discharge from service consequent to four red entries is not mandatory or legal requirement. In such cases, the Commanding Officer must consider the nature of the offence for which each red ink entry has been awarded and not to be harsh with the individual. 11. The import of the aforementioned objects and the procedure provides that it is necessary that a person who is charged with serious offence and has earned more than four red ink entries in his service book, can be considered for discharge. The note appended to this order also mentions that discharge from service consequent to four red ink entries is not mandatory or legal requirement. The Commanding Officer is required to consider the nature of the offence for which each red ink entry has been awarded. The expression nature of offence used would be an offence which is of grave nature as contemplated by the objects of order dated 28-12-1988. The Commanding Officer is required to consider the nature of the offence for which each red ink entry has been awarded. The expression nature of offence used would be an offence which is of grave nature as contemplated by the objects of order dated 28-12-1988. Grave incidents must co relate to an offence as contemplated by the Army Act, and civil offence under section 69 of the Army Act. 12. Applying these principles to the present case, it be seen that the petitioner has earned four red ink entries by overstaying the leave or remaining absent from duty. He is not alleged to have committed any offence of grave nature, which is contemplated by the Army Act or civil offence. Petitioner has already suffered on account of remaining absent from duty. It is also pertinent to mention that the petitioner on six occasions was found absent from duty or overstaying the leave for very shorter period of time. It will be also important to note that petitioner has put in more than 11 years of service and after completion of 15 years of service, he would be entitled to receive pension. While exercising power of discharge, the Commanding Officer is also required to ensure that the punishment should not be harsh especially when the person is about to complete pensionable service. The other aspect of the matter which is required to be seen is that preliminary enquiry must precede order of discharge. The preliminary enquiry as contemplated by the order requires that an adequate opportunity of putting up defence or explanation and for adducing evidence in defence by the personnel be given. The recommendation for discharge has to be forwarded to the competent authority alongwith copy of the proceedings of the enquiry as referred in Para-A above. 13. In view of the aforementioned facts, it is clear that the petitioner was not involved in an offence of a grave nature as defined under sections 52 to 62 of the Army Act. He was guilty of offence under section 39 of the Army Act. No preliminary enquiry is stated to have been conducted in the matter, as provided by the aforementioned order. No satisfaction has been recorded by the Commanding Officer in terms of Note-2 of the aforementioned procedure that the retention of petitioner was undesirable even though he had not committed any serious offence. No preliminary enquiry is stated to have been conducted in the matter, as provided by the aforementioned order. No satisfaction has been recorded by the Commanding Officer in terms of Note-2 of the aforementioned procedure that the retention of petitioner was undesirable even though he had not committed any serious offence. While ordering discharge of petitioner, harsh punishment has been imposed on him, despite the fact that he had completed 11 years of service and would have been entitled to pension after completion of 15 years of service. Reliance is placed upon the judgment dated 2-12-2008 passed by the Co-ordinate Bench of this Court in SWP No. 324/2003 entitled Nk Gulshan Singh Vs. Union of India. The operative portion of the aforesaid judgment is reproduced as under: ".. In the present case, for the misconduct of the petitioner, he stands awarded with four red ink entries and, therefore, has suffered the punishments awarded. On the basis of the said entries he could be considered for discharge from service, as being undesirable for retention in the army. While according such consideration the competent authority ought to have kept the factors indicated in Note-2 of instructions in view. From the perusal of the record and order impugned, it is not indicated that the said factors were kept in view and it appears that simply because the petitioner had earned more than four red ink entries his discharge from service has been ordered. The order of discharge impugned in the writ petition thus unsustainable in law for being arbitrary and unreasonable as after all the petitioner has suffered punishment on account of each offence of which each red ink entry was recorded. If he was to be declared undesirable for retention in service then consideration of the nature of the offences he committed besides his length of service and other relevant factors was necessary. It is only after consideration of such factors by a speaking order he could be validly declared desirable or undesirable for retention in the army" 14. Coming to the second question that full fledged enquiry is required to be conducted, the same is not correct. The enquiry is contemplated if a person is charged with misconduct. If a person is charged with mis conduct, then rules provide for investigation and in case he is found guilty, he may be discharged, dismissed or cashiered. Coming to the second question that full fledged enquiry is required to be conducted, the same is not correct. The enquiry is contemplated if a person is charged with misconduct. If a person is charged with mis conduct, then rules provide for investigation and in case he is found guilty, he may be discharged, dismissed or cashiered. In the present case, the petitioner has been discharged under Rules 13(3) Clause -5 and is not charged of any misconduct, for which full fledged enquiry is required. 15. From the discussion made hereinabove, I set aside the order of discharge and direct the respondents to re instate the petitioner with all consequential benefits. Disposed of.