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2013 DIGILAW 546 (JK)

Krishan Dutt v. Union Of India

2013-09-13

Hasnain Massodi

body2013
1. Petitioner was enrolled in Army on 07.12.1971, allotted No. 13734142 and after attestation deputed to 2 JAKLI on 25.04.1973. He was discharged from service on 12.06.1986. He questions the discharge order in writ petition-in-hand on the ground that order has been passed in contravention of rules and, suffers from non-application of mind. The petitioner, on the strength of grounds urged in the petition, seeks a writ of Certiorari, quashing discharge order dated 12.06.1986. He prays for a direction to respondents requiring them to treat petitioner in service from the date of discharge upto date of retirement, i.e., 31.12.1986 and to release unpaid salary in his favour. 2. The petition is resisted by respondents on the grounds detailed in their reply. It is pleaded that petitioner earned four red ink entries during his service career and left no option for the respondents, except to discharge him. It is denied that impugned order was passed in violation of the rules of natural justice or that the authority making order failed to apply its mind to the facts emerging from the petitioner's service record. The respondents have made a detailed reference to the lapses committed by petitioner and penalty imposed by competent authority from time to time. 3. I have gone through pleadings as also record available on file. I have also heard learned counsel for parties. 4. A closer look at the pleadings and the record placed on the file would reveal that petitioner was served a Show Cause Notice on 18.03.1986 requiring him to show cause as to why he should not be discharged from service under Army Rule 13(3) item (III) (v). Petitioner was to submit his reply by 25.03.1986 to Commanding Officer, 2 JAK LI C/O 56 APO. This was followed by a Show Cause Notice dated 25.03.1986. The second Show Cause Notice detailed the punishment imposed on petitioner during his 14 years and 6 months service career. The third Show Cause Notice with similar contents as that of second Show Cause Notice was served on petitioner on 18.04.1986. Third and the last Show Cause Notice was served by Officiating Commander through Commanding Officer, 2 JAK LI. 5. It would be appropriate to reproduce Show Cause Notices dated 18.03.1986, 25.03.1986 and 18.03.1986 hereunder:- "Show Cause Notice dated 18.03.1986. 1. You have been awarded four red ink entries during preceding 14 years. Third and the last Show Cause Notice was served by Officiating Commander through Commanding Officer, 2 JAK LI. 5. It would be appropriate to reproduce Show Cause Notices dated 18.03.1986, 25.03.1986 and 18.03.1986 hereunder:- "Show Cause Notice dated 18.03.1986. 1. You have been awarded four red ink entries during preceding 14 years. Since there is no likelihood of improvement in your discipline, your retention in Army is not desirable. You are hereby asked to `SHOW CAUSE' as to why you should not be discharged from service under Army Rule 13(3) item 111 (v). 2. Your reply should reach me by 25.03.1986. Show Cause Notice dated 25.03.1986. 1. During the entire service, you have committed four offences under Army Act for which you have been found guilty and punishment awarded to you are as under:- Punishment awarded Offence committed (a) 28 days Rl AA Sec 39 (a) (b) 14 days Rl AA Sec 48 (c) 28 days Rl AA Sec 39(b) (d) Having over stayed leave w.e.f. 17.11.1975 to 19.11.1975 vide erstwhile J&K Militia Trg. centre Pt II Order No. 248/38/75 and rejoined on 20.11.1975 vide Pt II Order No.248/41/75. In fact no punishment was awarded vide JAK LI Regt. Centre Pt II Order No.329/11/83, but in this case the entry has been treated as red ink vide Army Headquarters letter No. A/47767/Rtg 8(1 of R) (a) dated 28.03.1982. 2. From the above, it is seen from the performance that your retention in the Army is not desirable, as you have not shown any improvement in your overall discipline. You are therefore asked to `SHOW CAUSE' as to why your service should not be terminated in the interest of service under Army Rule 13(3) item III(v). 3. The above `Show Cause' notice has been served to No. 13734142 W L/NK (TS) Krishan Dutt in the language he understands in the presence of the following :- (a) IC-27393 Maj. R B Singh -OC Coy (b) JC-91945 Sub Maj Sarafrak Sheikh- Sub Major (c) JC-105837 Sub Abdul Razak- Senior JCO 4. Your reply should reach me by 31.03.1986. Show Cause Notice dated 18.04.1986. 1. R B Singh -OC Coy (b) JC-91945 Sub Maj Sarafrak Sheikh- Sub Major (c) JC-105837 Sub Abdul Razak- Senior JCO 4. Your reply should reach me by 31.03.1986. Show Cause Notice dated 18.04.1986. 1. During the entire service, you have committed four offences under Army Act for which you have been found guilty and punishment awarded to you are as under:- Punishment awarded Offence committed (a) 28 days Rl AA Sec 39 (a) (b) 14 days RI AA Sec 48 (c) 28 days Rl AA Sec 39(b) (d) Having over stayed leave w.e.f. 17.11.1975 to 19.11.1975 vide erstwhile J&K Militia trg centre Pt II Order No. 248/38/75 and rejoined on 20.11.1975 vide Pt II Order No.248/41/75. In fact no punishment was awarded vide JAK LI Regt. Centre Pt II Order No.329/11/83, but in this case the entry has been treated as red ink vide Army Headquarters letter No. A/47767/Rtg 8 (1 of R) (a) dated 28.03.1982. 2. Keeping in view your past record and your performance your retention in the Army is not considered desirable. You are, therefore, asked to `SHOW CAUSE' as to why your services should not be terminated in the interest of service under Army Rule 13(3) item III (v). 3. Please forward your reply so as to reach me by 30.04.1986 failing which I will assume that you have nothing to state in your defence." 6. The petitioner, in his reply to the Show Cause Notice dated 18.04.1986 explained that he after imposition of first punishment of 28 days Rigorous Imprisonment, made a request for his discharge and that the competent authority instead of acceding to his request decided to retain him in service. The petitioner insisted that after last and fourth lapse alleged against him, i.e., over stay of leave from 17.11.1975 to 19.11.1975, he admittedly had not committed any act of mis-conduct and, therefore, could not be discharged 11 years after last red ink entry in his service record. The petitioner, pleaded that it was not open to respondents to discharge the petitioner on the ground of four red ink entries in his service record after petitioner rendered 14 years and 6 months' service and thereby deprive him of his right to get pension on his retirement. Reply to the Show Cause Notice dated 18.04.1986, needs to be noticed:- "1. Ref. your letter No.821/Gewn/A dated 18.04.1986. 2. Reply to the Show Cause Notice dated 18.04.1986, needs to be noticed:- "1. Ref. your letter No.821/Gewn/A dated 18.04.1986. 2. In this connection, I submitted that at the time of my first punishment awarded to me. I requested for discharge from service but my request was turned down. Subsequently due to reasons beyond my control. I was punished third. Due to four red ink entries incurred by me. Records JAK LI asked the unit for my discharge/recommendation for retention. My Coy Cdr Maj R.K.Krishan recommended my case for retention. Since then I have not committed any offence. Now when I have completed 14 and 6 months service. I am being discharged from service without pension which could have been in 1983 too. 3. Records JAK LI has also suggested that I can get pension. If promoted to the rank of NK for which I am qualified too. I requested your goodself to kindly petty on me and I do hereby consent that I promoted to the rank of NK, I will apply for pension soon after completion of my non qualified service. 4. I, therefore, requested you for not to discharge me from service till I am eligible to get pension." 7. Brigade/Sub Area Commander in terms of Army Rule 13(3) Item (III) (v) has been given the power to discharge an army personnel, who is undesirable for retention in the Army because of lapse/misconduct proved against him on more than one occasions resulting in red ink entries in his service record. Once army personnel indulges in misconduct like overstayal of leave, dereliction of duties or misdemeanour, he is to be awarded punishment in accordance with provisions of the Army Act, 1950, and the Army Rules 1954. Punishment or penalty awarded also is indicated in his service record and results in red ink entry in such record. Cases may arise, where army personnel, notwithstanding penalty imposed, continues to indulge in misconduct and is visited with penalty again and again. In case he goes on repeating misconduct, the imposition of penalty may not be an answer to his misconduct and in tune with over all discipline of the Army. Such person does not deserve to be part of a disciplined force. Right course in such situation is to get rid-off of the habitually erring personnel and discharge him from Army. 8. Such person does not deserve to be part of a disciplined force. Right course in such situation is to get rid-off of the habitually erring personnel and discharge him from Army. 8. Power given to Brigade/Sub Area Commander to order discharge of an army personnel on the ground of red ink entry in the service record, is not to be exercised in capricious and arbitrary manner. Discharge from army is a step pregnant with adverse fall out on the life of army personnel and those who are dependent on him. The power, therefore, is to be exercised cautiously and with circumspection. Brigade/Sub Area Commander is required to have regard to nature of lapses or offence proved against army personnel that prompted his superior officer to award punishment and make red ink entry in the service record. Where lapses or offence alleged against the erring army personnel, are found to be minor in character, his discharge because of red ink entries is to be avoided. The competent authority is also required to consider the period such army personnel as served the army. More length of service, lesser use of power to order discharge on the ground of four red ink entries in the service record would be advised. The period between last red ink entry and order of discharge has also relevance and is to be kept in mind while ordering discharge. In case army personnel, after last lapse and resulted red ink entry, has maintained discipline for a reasonable time and has not earned any further penalty or red ink entry, discharge on the aforesaid ground is not to be resorted to. Brigade/Sub Area Commander is to be alive to the fact, that power to order discharge on the ground of four red ink entries is a tool to throw out army personnel, found to be persistent in misconduct and, therefore, incorrigible. In case army personnel after few lapses has realized his duty to maintain discipline and shown improvement in his conduct, power to discharge is not to be exercised. 9. In the present case, petitioner, on the date he was discharged, had more than 14 years service to his credit. Length of period the petitioner was on the rolls of army should have prompted Brigade/Sub Area Commander to be slow in exercise of power available to him under Rules 13(3) Item (III)(v). 9. In the present case, petitioner, on the date he was discharged, had more than 14 years service to his credit. Length of period the petitioner was on the rolls of army should have prompted Brigade/Sub Area Commander to be slow in exercise of power available to him under Rules 13(3) Item (III)(v). He was to realize that four lapses with red ink entries in the service record were committed during a long span of more than 14 years. Overall conduct of the petitioner during one and half decade, he served the army, was free from any serious blemish. The petitioner, having given best part of his life to the army, ought not to have been treated the way he has been dealt with by the respondents. This apart, last lapse was committed on 03.07.1983 when petitioner overstayed on leave w.e.f. 03.07.1983 to 04.07.1983. The petitioner was allowed to continue till 12.06.1986, i.e., three years after last red ink entry and discharged on 12.06.1986. His character, discharge roll would reveal, was `good'. 10. Having regard to all these aspects of the matter, discharge order impugned in the petition was unwarranted as petitioner's discharge without pension was not called for. The impugned order, for reasons discussed, cannot stand legal scrutiny inasmuch as author of impugned order does not appear to have considered all important aspects that he was required to keep in mind while resorting to extreme step of ordering petitioner's discharge without pension. The order is in conflict with spirit and mandate of provisions that clothed Brigade/Sub Area Commander with power to order such discharge. 11. So viewed, writ petition is allowed and order dated 12.06.1986 by virtue of which, petitioner has been discharged, is quashed. The petitioner has been prosecuting the matter for last 25 years. He has crossed age of active service and cannot be asked to be taken back in army service. Respondents are, therefore, directed to work out pension as would have been payable to the petitioner, had he not been discharged vide order dated 12.06.1986 and allowed to serve army till the date he was to retire in terms of Army Act and Army Rules. Arrears of pension, due to petitioner till date, shall be computed and petitioner paid the arrears, so worked out, along with monthly pension payable under rules. Arrears of pension, due to petitioner till date, shall be computed and petitioner paid the arrears, so worked out, along with monthly pension payable under rules. Respondents shall complete the whole exercise within eight weeks from the date of receipt of copy of judgment. 12. Disposed of along with connected CMA(s).