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2010 DIGILAW 618 (JK)

Union Of India v. Naik Gulshan Singh

2010-12-13

Hasnain Massodi, Virender Singh

body2010
Per Massodi, J 1. "Whether an Army personnel (person subject to the Army Act, 1950) awarded four red ink entries during his service, is to be compulsorily discharge under Rule 13(3) Army Rules 1954?" is the question raised in these three Letters Patent Appeal. If stand taken by learned counsel for the appellants is sustained, the Authority competent to sanction discharge of an Army personnel has no option but to order discharge in the event, he has earned four red ink entries during his service. Before embarking on an exercise to find an answer to the question raised, it would be appropriate to summarize the facts. 2. Naik Gulshan Singh, respondent in LPASW No.35/2009 enrolled in Indian Army as Sepoy in the year 1990, was inducted into 5 JAK Light Infantry and promoted to the rank of Naik in April, 1999. The respondent in March, 2002, while performing his duties at Nandpur, Tehsil Samba, unauthorizedly left his Unit at about 6.am to visit his relatives at Arina and reported back to his duty at 8 am. His unauthorized absence from duty was viewed seriously and after show cause notice, the act of the respondent was found uncondonable as the respondent had already been awarded five red ink entries and two black ink entries during his service. After serving army for 12 years, the respondent was discharged vide order dated 22nd April, 2002 by the Commanding Officer in the exercise of powers under Rule 13 (3) III (v) Army Rules 1954. The respondent assailed the discharge order through medium of writ petition registered as SWP No.324/2003. The writ petition was allowed on 2nd December, 2008 and the discharge order quashed. 3. Rifleman Arvind Singh, respondent in LPASW No.71/2009 was enrolled in Indian Army on 27th February, 1988, posted to 20 Rajasthan Rifle on 20th March, 1989. The respondent earned four red ink entries during his service career spreading over a period of 12 years and was awarded punishment of denial of promotion, 14 days rigorous imprisonment and 28 days rigorous imprisonment on said counts of his misconduct. Having regard to repeated acts of indiscipline, a preliminary enquiry was ordered, show cause notice served on the respondent and finally the Competent Authority on due consideration of the matter, ordered discharge of the respondent in exercise of powers under Rule 13 (3) III (v) Army Rules, 1954 vide order dated 5th May, 2000. Having regard to repeated acts of indiscipline, a preliminary enquiry was ordered, show cause notice served on the respondent and finally the Competent Authority on due consideration of the matter, ordered discharge of the respondent in exercise of powers under Rule 13 (3) III (v) Army Rules, 1954 vide order dated 5th May, 2000. The respondent questioned the discharge order in the writ petition registered as SWP No. 1045/2001. The writ petition was allowed on 11th February, 2009 and the discharge order set aside. 4. Ex-Rifleman Tilak Raj Billa, respondent in LPASW No.120/2009 was enrolled in Indian Army on 10th October, 1984. The respondent during his service career absented himself from duty without leave or overstayed leave granted to him on seven different occasions. The respondent was punished for his unauthorized absence/overstay. The respondent in all earned four red ink entries and two black ink entries for his omissions, was served the show cause notice on 3rd December, 1993 and after reply to show cause notice was received, the Competent Authority considered the matter and discharged him after putting in service of about ten years in exercise of power under Army Rule 13 (3) III(v) with effect from 01-03-1994 vide order dated 28th December, 1993. The respondent aggrieved with the discharge order questioned it in writ petition registered as SWP No.1920/2001. The petition was allowed on 15th May, 2009 and the discharge order set aside. 5. The writ Court judgments in all the three writ petitions are questioned on the grounds that the judgments are contrary to the facts and law; that the judgments have been passed oblivious to mandate of Integrated Head Quarters of Ministry of Defence communication dated 28th December, 1988 and 7th April 2004, whereunder, any person subject to the Army Act awarded four red ink entries during his service, is to be discharged. It is next urged that the writ Court while rendering the judgments substituted its own opinion for the opinion of the Competent Authority inasmuch as the writ Court opined that four red ink entries do not make it mandatory for the Competent Authority to discharge an Army personnel. The appellant in each of the three appeals, emphasizing importance of discipline in Armed Forces, highlighting indiscipline and dereliction of the duty proved against each of the respondents, insists that the discharge was the only option left with the Competent Authority. The appellant in each of the three appeals, emphasizing importance of discipline in Armed Forces, highlighting indiscipline and dereliction of the duty proved against each of the respondents, insists that the discharge was the only option left with the Competent Authority. It is insisted that proportionality of the punishment awarded for indiscipline is to be left to the Competent Authority and the Court is not expected to opine whether punishment awarded in a particular case is proportional to the indiscipline proved against the delinquent. 6. We have gone through each of the memorandum of appeal in three Letters Patent Appeals as also the writ Court record have heard learned counsel for the parties. 7. Neither the Army Act 1950 nor the Army Rules 1954 spell out the grounds on which discharge of a person subject to the Army Act 1950 may be ordered. Section 22 Army Act, 1950 provides that any person, subject to the Act may be dismissed, released or discharged from the service by such authority and in such manner as may be prescribed. Chapter 3 Army Rules, 1954 prescribes mode and manner in which dismissal, discharge, termination, release and retirement of a person, subject to the Act may be effected. Rule 13 specifies the authorities competent to order discharge from service of a person enrolled under the Act. The rule classifies the Competent Authorities on the basis of rank of the officer/personnel against whom action is intended as also the ground on which such action is proposed. In case of an Army personnel of the rank of the respondents, the Commanding Officer may order discharge from service, where the person has reached the stage at which discharge may be enforced or on the completion of the period of service or having been found medically unfit for further service and where the discharge is made at request. However, where the discharge order is made for any reasons other than reasons/grounds detailed in Rule 13 (3) III (i) to (iv), in terms of Rule 13 (3) III (v), Brigade Commander/Sub Area Commander has the power to make such order. In all the three cases, action against the respondents admittedly has been taken under Rules 13 (3) III (v) and the reason for discharge is "undesirable for Army service/service no longer required." 8. In all the three cases, action against the respondents admittedly has been taken under Rules 13 (3) III (v) and the reason for discharge is "undesirable for Army service/service no longer required." 8. The Army Act 1950 and the Army Rules 1954, thus, give complete discretion to the Authority Competent to order discharge of an Army personnel having regard to the misconduct attributed to such person. The discretion given, however, unbridled and not to be exercised in a whimsical and arbitrary manner. The Army Headquarter vide A/13210/159/AG/PS 2(c) dated 28th December, 1988 lays down "Procedure for removal of undesirable and inefficient JCOs, WOs and ORs." In terms of the procedure, an individual who has proved himself undesirable and whose retention in the service is considered inadvisable is to be recommended for discharge/dismissal, however, as per the procedure dismissal is to be recommended only where the court martial, if held, would have awarded sentence of dismissal but trial by court martial is considered impracticable or inexpedient. In all other cases, recommendations for discharge is an option made available to the Competent Authority. It would be advantageous to reproduce hereunder the Procedure laid down vide Army Headquarter communication No.A/13210/159/AG/PS 2(c) dated 28th December, 1988 (hereinafter referred to as "Procedure of 28th December, 1988). PROCEDURE FOR THE REMOVAL OF UNDESIRABLE AND INEFFICIENT JCOs, WOS AND OR 1. The procedure outlined in the succeeding paragraphs will be followed for the disposal of undesirable and inefficient JCOs, WOs and OR. JCOs, WOs and OR Who Have Proved Undesirable 2. (a) An individual who has proved himself undesirable and whose retention in the service is considered inadvisable will be recommended for discharge/dismissal. Dismissal should only be recommended where a court martial, if held, would have awarded a sentence not less than dismissal, but trial by court martial is considered impracticable or inexpedient. In other cases, recommendations will be for discharge. (b) Should it be considered that a JCO’s discharge/dismissal is not warranted and that transfer will met the case, he will be transferred in his substantive rank and not recommended for further promotion and/or increment of pay until he proves his fitness for promotion and/or increment of pay in his new unit. (c) Should it be considered that a WO or an NCO’s discharge/dismissal is not warranted and the transfer will met the requirements of the case, he will be transferred. (c) Should it be considered that a WO or an NCO’s discharge/dismissal is not warranted and the transfer will met the requirements of the case, he will be transferred. If the merits of the case so warrant, he may be reduced to a lower grade or rank or the ranks under AA Sec 20 (4) by an officer having powers not less than a Bde or equivalent Comdr, before he is transferred. A WO reduced to the ranks shall not be required to service in the ranks. AA Sec 20 (5) refers. (d) Should it be considered that an acting NCO’s discharge/dismissal is not warranted and that transfer will meet the requirement of the case, he may be reverted by his CO to his substantive rank if he has not substantive NCO rank then he may be reverted to the ranks under AA Sec 20 (6) before he is transferred. (e) In cases where it is considered that all or part of JCO’s/WO’s/OR’s pension should be withheld, this fact will be noted on the recommendation for discharge. JCO’s, WO’s and OR Who Have Proved Inefficient (a) Before recommending or sanctioning discharge, the following points must be considered:- (i) If lack of training is the cause of his inefficient, arrangements will be made for his further training. (ii) If an individual has become unsuitable in his arm/service through no fault of his own, he will be recommended for suitable extra-regimental employment. (b) Should it be decided to transfer a JCO, he may be transferred in his acting/substantive rank accordingly to the merits of the case and will not be recommended for further promotion and/or increment of pay until he proves his fitness for promotion and/or increment of pay in his new unit. (c) Prior to transfer, if such a course is warranted, on the merits of the case, a WO or an NCO may be reduced to one rank lower than his substantive rank under Army Act Section 20 (4). Procedure for Dismissal/Discharge of Undesirable JCOs/WOs/OR 4. AR 13 and 17 provide that a JCO/WO/OR whose dismissal or discharge is contemplated will be given a show cause notice. 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 reasonably practicable to serve such a notice. AR 13 and 17 provide that a JCO/WO/OR whose dismissal or discharge is contemplated will be given a show cause notice. 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 reasonably practicable to serve such a notice. Such cases should be rare, e.g, where the interests of the security of the State so require. Where the 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 of 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 that the extreme step of termination of the individual’s 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 authorize 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 made their own recommendations as to the disposal of the case. (d) Action by Competent Authorities. The authority competent to authorize 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 individual’s service is warranted, he should direct that a show cause notice be issued to the individual in accordance with AR 13 or AR 17 is 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 the individual. 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 the individual. The allegations must be specific and supported by sufficient details to enable the individual or clearly understand and reply to them. A copy of the proceedings of the enquiry held in the case will also to be supplied to the individual and he will be afforded reasonable time to state in writing any reasons be may have to urge against the proposed dismissal or discharge. (e) Action on Receipt of the Reply to the Show Cause Notice. The individual’s reply to the show cause notice will be forwarded through normal channels to the authority competent to authorize 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 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 individual’s 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 individual’s 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. 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. 9. A bare look at the "Procedure of 28th December, 1988", reveals that before recommending discharge, an impartial enquiry (not necessarily a court of Inquiry) is to be made into the allegations leveled against the Army personnel proposed to be discharged and the delinquent is to be given adequate opportunity of putting up his defence or explanation and of adducing evidence in his defence. Once the allegations are substantiated, the Authority recommending discharge has to examine whether instead of extreme step of discharge, any other action like transfer would meet the requirements of the case. Note 2 Para 5 of the Procedure of 28th December, 1988, assumes significance in the facts and circumstances of the case. It needs no emphasis that note appended to a Rule or Administrative instruction is to be taken as part of the Rule/Administrative instruction. In terms of note 2, discharge from service consequent to four red ink entries is neither mandatory nor a legal requirement. The Authority Competent to order discharge is to consider the nature of offence(s) for which each red ink entry has been awarded. It follows that red ink entry by itself is not decisive but further consideration is required to be given by the Competent Authority to the background in which the allegations that led to each of the four or more red ink entries. Such consideration becomes necessary where the personnel has a long service career and is about to complete the pensionable service. The Authority is also required to give due consideration to the hard stations, difficult living conditions that a personnel has been exposed to during his service. Such consideration becomes necessary where the personnel has a long service career and is about to complete the pensionable service. The Authority is also required to give due consideration to the hard stations, difficult living conditions that a personnel has been exposed to during his service. The discharge in terms of the "Procedure of 28th December, 1988" is to be not the first but the last option and to be ordered only where it is absolutely necessary in the interest of service. The argument advanced by the learned counsel for appellants that in terms of Army Headquarter communication No.41776/48/AG/DV-1(P) dated 7th April, 2004, an Army personnel awarded four red ink entries during his service, irrespective of the Procedure of 28th December, 1988, is to be compulsorily discharge his bereft of any merit. The communication No.41776/48/AG/DV-1(P) dated 7th April, 2004 while pointing out, continued misconduct of the Army personnel in few cases, even after red ink entries were awarded, advised the Commanders at all levels to terminate the service of personnel found to be habitual offenders in order to curb tendency of repeated misconduct. The operative part of the communication reads as under; "(a) In order to curb this tendency, commanders at all levels be advised to terminate the services of such personnel who are habitual offenders and are undesirable for retention in service especially after four red ink entries. This will prevent these personnel from committing bigger crimes which affect the image of the organization as a whole. (b) Provisions as laid down vide letter No. A/13210/159/AG/PS 2 (c) be complied with." 10. From perusal of the aforementioned communication, it is clear that only a suggestion has been made to the Commanders at all levels to go for termination of service, where the Army personnel is proved to be a habitual offender and especially, where the personnel has earned four red ink entries. It does not make it compulsory for the Competent Authority to invariably order discharge where four red ink entries are awarded to an Army personnel. Learned counsel for appellants while making the arguments appears to loose cite of Para-(b) of the communication. In Para-(b) (supra), the Commanders at all levels are directed to comply with the "Procedure of 28th December, 1988", laid down Army Headquarter vide A/13210/159/AG/PS 2(c) dated 28th December, 1988 and reference to which is made at (i) of the communication. Learned counsel for appellants while making the arguments appears to loose cite of Para-(b) of the communication. In Para-(b) (supra), the Commanders at all levels are directed to comply with the "Procedure of 28th December, 1988", laid down Army Headquarter vide A/13210/159/AG/PS 2(c) dated 28th December, 1988 and reference to which is made at (i) of the communication. It follows that the communication No.41776/48/AG/DV-1(P) dated 7th April, 2004, does not in any manner dilute the "Procedure of 28th December, 1988" or ask for departure from the procedure. 11. What emerges from the above discussion is that, in all the three cases of discharge questioned before the Court, the Competent Authority before recommending discharge failed to adhere to the "Procedure of 28th December, 1988" and in particular, Note 2 Para 5 of the procedure. It is pertinent to point out that in all the three cases before the Court, the respondents had a long service career to their credit. This was an added reason for the Competent Authority in each of the three cases to accord due consideration to the factors identified in Note 2 before making recommendations for discharge of the respondents. 12. The Authority Competent to sanction the discharge even where a recommendation for discharge is in terms of the "Procedure of 28th December, 1988" made, is required to re-consider the case in the light of the reply received from the Army personnel and consider whether instead of discharge, any other action contemplated under Para 2 (b) to (d) may meet the requirements of the case. The record presented before the writ Court and also available on the record, reveals that neither the Authority recommending discharge nor the Authority Competent to sanction discharge in each of the three cases before us, followed the "Procedure of 28th December, 1988". There is nothing on the record to show that the Authority recommending discharge, considered the nature of offences for which each red ink entry was awarded, the length of service of the respondents, hard stations and difficult living conditions that each of the respondents was exposed to during the service. The Authority Competent to sanction discharge likewise, did not make an effort to even see whether any action against each of the respondents other than the discharge would serve the purpose. The Authority Competent to sanction discharge likewise, did not make an effort to even see whether any action against each of the respondents other than the discharge would serve the purpose. Both, the recommending authority and the sanctioning authority lost sight of the base line that the discharge in terms of the "Procedure of 28th December, 1988" is not the first but the last option and is to be ordered only when it is absolutely necessary in the interest of service. 13. A strenuous effort is made by Learned counsel for appellants to convince that discipline is hallmark of an organization like Armed Forces and that discipline and commitment towards duty, cannot be compromised at any cost. White there is no scope for any disagreement with learned counsel for appellants that indiscipline and dereliction of duty is unacceptable in Government service and much less acceptable in Armed Forces, yet concern for discipline must not prompt the Competent Authority to give the procedure a complete go by. If procedure laid down to guide discretion is allowed to be ignored or downplayed in the name of discipline, arbitrariness is bound to step in, making objectivity a casualty. Support sought to be drawn from law laid down in (1996) I SCC (302), 2008 (I) JKLJ 34 SC and M.I.L.J (2001) to canvass that indolence and indiscipline are not condonable and that disciplinary action, if any, taken by the Competent Authority under Rule 13 (3) III (v) Army Rules, 1954 must not to be interfered with, is not available to the appellants. The reason being that the question is not one of the indiscipline and indolence but of infringement of procedural rights of the respondents. The procedural safeguards are to be considered in the context and corresponding to the plentitude of the discretion given to the Authority and the severity of the consequence that are likely to visit the person against whom such discretion is exercised. The procedural safeguards are to be so interpreted as to make these commensurate with the sweep of the powers/discretion. The wider the power, the greater the need for its exercise and correspondingly, more liberal the construction of the procedural safeguards. In the present case, as has been discussed above, the Authority Competent to recommend discharge or to sanction discharge a wide discretion to make such recommendation. The wider the power, the greater the need for its exercise and correspondingly, more liberal the construction of the procedural safeguards. In the present case, as has been discussed above, the Authority Competent to recommend discharge or to sanction discharge a wide discretion to make such recommendation. It is, thus, necessary for the Authority to strictly follow the procedure laid down to guide the exercise of discretion. In the present case, it may be stated at cost of repetition, the procedure applicable has not been adhered to and followed. The writ Court in each of the three writ petitions has rightly accepted the respondent’s case and quashed the discharge orders. We find no merit in the appeals and accordingly, dismissed all the three appeals. The writ Court record be returned and the appeal record deposited, in accordance with rules.