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2017 DIGILAW 180 (JK)

Devinder Kumar v. Union of India

2017-04-07

ANURAG GOPALAM THAPLIYAL, BANSI LAL BHAT

body2017
JUDGMENT : 1. Petitioner seeks quashment of order dated 14.3.2017 passed by respondent No. 2 by virtue whereof petitioner has been discharged from service in terms of Army Rule 13(3) for being unsuitable for further military service. It is asserted in the petition, initially filed as a writ petition under Art. 226 of the Constitution of India before the Hon'ble High Court of J & K and subsequently transferred to this Tribunal in terms of provisions of Section 34 of the Armed Forces Tribunal Act that the petitioner was enrolled as a Sepoy on 7.8.1998 and he served the army with full dedication until he was discharged in terms of the impugned order. The impugned order is assailed as being unsustainable on the ground that the same has been passed without serving any show cause notice, without conducting any enquiry and without affording an opportunity of being heard to the petitioner. Respondents contested the petition on the ground that there is no procedural irregularity warranting judicial review. It is pleaded that the petitioner, while posted at Babina Cantt. in January, 2001 lost his Pay-book and was awarded seven days rigorous imprisonment in military custody under Section 54(b) [54. Making away with equipment Any person subject to this Act who commits any of the following offences, that is to say, (a) makes away with, or is concerned in making away with, any arms, ammunition, equipment, instruments, tools, clothing or any other thing being the property of the Government issued to him for his use or entrusted to him; or (b) loses by neglect anything mentioned in clause (a); or (c) sells, pawns, destroys or defaces any medal or decoration granted to him; shall, on conviction by court martial, be liable to suffer imprisonment for a term which may extend in the case of the offences specified in clause (a) to ten years, and in the case of the offences specified in the other clauses to five years, or such less punishment as is in this Act mentioned.] of the Army Act. It is further pleaded that the petitioner was absent without leave w.e.f. 20.11.2001 to 14.1.2002 (56 days) and was awarded 28 days rigorous imprisonment in military custody and 14 days detention under Section 39(a) [Absents himself without leave] of the Army Act. It is further pleaded that the petitioner was absent without leave w.e.f. 20.11.2001 to 14.1.2002 (56 days) and was awarded 28 days rigorous imprisonment in military custody and 14 days detention under Section 39(a) [Absents himself without leave] of the Army Act. It is pleaded that the petitioner was posted to Headquarter Squadron 39 Armed Branch and given a chance to improve his discipline. However on 10.12.2004 at 0005 hrs the petitioner was found asleep while on Sentry Duty at the Flag Staff House Guard Post and awarded 7 days rigorous imprisonment under Section 63 of the Army Act. Subsequently on 10.7.2006 petitioner lost his Identity card and was awarded seven days rigorous imprisonment under Army Act Section 54(b). On 15.10.2006 petitioner was found intoxicated at 2000 hrs while on duty with QRT and awarded 14 days rigorous imprisonment under Army Act Section 48. On 12.1.2007 petitioner again absented himself without leave from unit lines since 17.30 hrs and when caught by Military Police at 2100 hrs was found intoxicated. Again on 17.1.2007 the petitioner was found intoxicated while admitted to 167 Military Hospital and given 21 days rigorous imprisonment under Army Act Section 39(a) and Army Act Section 48. It is further pleaded that the petitioner was a chronic discipline case un-willing to mend his ways and was a demotivating factor in the regiment. He was given three months time to show improvement after his fifth Red-ink entry. However, there was no change in his behavior. Hence he was found to be undesirable to be retained in the army. It is further pleaded that due procedure/process was followed in obtaining sanction of competent authority for the discharge of the petitioner. Full opportunity was provided to the petitioner and proper procedure was followed in allowing the petitioner to be heard and present his defence in writing also. Petitioner was also afforded sufficient opportunity to improve his discipline and behavior despite being convicted with four Red-ink entries. It is further pleaded that the petitioner's service of 8 years and 7 months was replete with acts of indiscipline which indicated a flagrant, persistent and contemptuous disregard for military discipline. Refuting the allegations; in the petition it is pleaded that a preliminary inquiry was convened, conducted, recorded and forwarded to competent authority empowered to sanction the discharge. It is further pleaded that the petitioner's service of 8 years and 7 months was replete with acts of indiscipline which indicated a flagrant, persistent and contemptuous disregard for military discipline. Refuting the allegations; in the petition it is pleaded that a preliminary inquiry was convened, conducted, recorded and forwarded to competent authority empowered to sanction the discharge. Order of Commander 16 (Independent) Armoured Brigade as competent authority to sanction discharge under Army Rule 13(3) was specifically recorded in the discharge roll. 2. In his rejoinder the petitioner has reiterated the allegations levelled in the petition. It is claimed that the procedure laid down for the exercise of power to discharge under Rule 13(3)(III)(v) [All other classes of discharge] of the Army Rules has not been followed in the case of the petitioner nor have the principles of natural justice been observed in the process. The petitioner already stands punished for the offences alleged to have been committed by him. It is stated that the discharge of an individual is to be avoided as far as possible more so when such a person has rendered fairly long service or is nearing retirement. The competent authority is required to explore options like transfer or further training of the individual before embarking upon his discharge. It is stated that the competent authority has not taken into consideration that the petitioner had completed more than 8-1/2 years service as on the date of discharge, nor shown regard for the circumstances in which the offences were committed. It is further stated that the offences alleged against the petitioner are neither grave offences nor do they involve moral turpitude. It is stated that the petitioner's Suit-case got exchanged with that of another soldier at Jammu Railway Station, resulting in loss of his Pay-book. It is further stated that father of the petitioner was on death bed in November, 2001 and the petitioner left the unit in a state of shock without informing any one. The petitioner's father died of cancer and this resulted in his absence from duty. It is further stated that the petitioner had lost his Identity card while loading & unloading his luggage and despite efforts he failed to trace out the same. These acts of petitioner are stated to have been committed without intention. The petitioner's father died of cancer and this resulted in his absence from duty. It is further stated that the petitioner had lost his Identity card while loading & unloading his luggage and despite efforts he failed to trace out the same. These acts of petitioner are stated to have been committed without intention. Admitting that the petitioner had been served with a show cause notice it is alleged that he was not provided sufficient time to produce documentary proof of having informed the authorities about the loss of Identity card. Petitioner has denied other charges including offence of intoxication while being admitted in military hospital on 17.1.2007. It is stated that the respondents merely completed an empty formality instead of truly following the procedure detailed in the Circular dated 28.12.1988. It is stated that no adequate opportunity of showing of cause against his discharge was granted to petitioner and principles of natural justice were observed in breach in discharge of the petitioner. The rejoinder is supported by a copy of Register entry in Daily Diary Report of 19.7.2006 of Police Station, R.S. Pura reporting loss of Identity card during loading & unloading of luggage. 3. Heard the learned counsel for the parties and perused the record. 4. The moot question for determination is whether procedure for removal of undesirable and inefficient JCOs, WOS and Ors. laid down in terms of Circular No. A/13210/159/AG/PS-2(c), dated 28.12.1988 of the Adjutant General's Branch, Army Headquarters has been followed in the case of petitioner. The procedure for discharge of an individual who has proved himself undesirable and whose retention in the service is considered unadvisable is laid down in para 4 of the Circular which envisages a show cause notice being given to the individual. Service of notice may be dispensed with if the competent authority is satisfied that it is not expedient or reasonably practicable to serve such a notice. However, such cases are very rare and generally limited to matters involving security of the state. Recording of reasons in such a case is imperative. The procedure to be followed for discharge of an individual contemplates holding of an impartial enquiry, not necessarily a Court Inquiry with adequate opportunity provided to individual to offer explanation, put up his defence and adduce evidence in defence. Recording of reasons in such a case is imperative. The procedure to be followed for discharge of an individual contemplates holding of an impartial enquiry, not necessarily a Court Inquiry with adequate opportunity provided to individual to offer explanation, put up his defence and adduce evidence in defence. It is further provided that the allegations against individual have to be substantiated and that the extreme step of discharge of individual shall be warranted on merits of the case. The circular makes it amply clear that the discharge from service consequent to four Red-ink entries is not a mandatory or legal requirement. Commanding Officer is required to consider the nature of offences for which each Red-ink entry has been awarded. He cannot be harsh to the individuals, more particularly when they are about to complete pensionable service. The Commanding Officer should have due regard to the long service, hard stations and difficult living conditions to which the individual has been exposed during his service. Discharge should be ordered only when it is absolutely necessary in the interest of justice. The circular incorporates the safeguards governing exercise of power of discharge vested in the competent authority and ensures that the discharge is ordered only as a last resort. The order of discharge dehors the nature of offence for which the individual has been convicted, circumstances in which such offence has been committed and the hardship faced, would not be justifiable. A duty is cast upon the competent authority to ensure that no harsh treatment is meted out to the individual and that the order of discharge is passed only when it is absolute necessary in the interest of service. A compassionate and humane view lies at the core of the circular and a blood thirsty approach emanating from mere four Red-ink entries against individual is discouraged. 5. Rule 13(3)(III)(v) of the Army rules empowers the competent authority to direct discharge of individual after giving to the individual whose discharge is contemplated an opportunity to show cause against same provided the circumstances of the case permit such a course to be adopted. The Hon'ble Apex Court had an opportunity to delve on the subject and interpret the aforesaid rule in [JKJ Soft JKJ/30515] Veerendra Kumar Dubey v. Chief of Army Staff & Ors., reported in (2016) 2 SCC 627 . The Hon'ble Apex Court had an opportunity to delve on the subject and interpret the aforesaid rule in [JKJ Soft JKJ/30515] Veerendra Kumar Dubey v. Chief of Army Staff & Ors., reported in (2016) 2 SCC 627 . It noticed that the government stipulated not only a show cause notice which is an indispensable part of the requirement of the rule but also an impartial enquiry into the allegations against him in which he is entitled to an adequate opportunity of putting up his defence and adducing evidence in support thereof. Mere award of four Red-ink entries to an individual does not make his discharge mandatory. Four Red-ink entries is not a Lakshman Rekha which, if crossed, would by itself render the individual concerned undesirable or unworthy of retention in the force. Award of four Red-ink entries simply pushes the individual concerned into a grey area where he can be considered for discharge. But just because he qualifies for such discharge does not mean that he must necessarily suffer that fate. It further held that it is axiomatic that the Commanding Officer is, even after the award of such entries, required to consider the nature of the offences for which such entries have been awarded and other aspects made relevant in the procedure prescribed. It would follow that before discharging an individual not only should there be a show cause notice but an inquiry into the allegations made against individual concerned in which he ought to be given an opportunity of putting up his defence and that the allegations must stand substantiated for a discharge to follow. The administrative instructions regulate the exercise of power by competent authority qua an individual who qualifies for consideration on any such administratively prescribed norm. The instructions are aimed at ensuring a non-discriminatory, fair and non-arbitrary application of the statutory rule. It further held that the circular dated 28.12.1988 provides safeguards against an unfair and improper use of power vested in the authority. 6. The instructions are aimed at ensuring a non-discriminatory, fair and non-arbitrary application of the statutory rule. It further held that the circular dated 28.12.1988 provides safeguards against an unfair and improper use of power vested in the authority. 6. Adverting to the facts of the instant case we find that a preliminary inquiry was conducted by the Commanding Officer in which petitioner has admitted being convicted and sentenced for loss of his Pay-book and absenting without leave for 56 days while declining to say anything in respect of the remaining four convictions which include the charges of being found asleep while on duty and being intoxicated on three different occasions. It further appears from the record that preliminary inquiry was followed by recording of finding that the petitioner was a perpetual offender of Military law and his behavior was likely to affect the morale and conduct of others. He was considered undesirable to be retained in military service on the basis of gravity of charges leading to his conviction and award of sentence. This was followed by a show cause notice served upon him on 3.3.2007 to which he replied by admitting that he had been convicted and having been awarded punishment on six occasions and he could not be further retained in service. It is abundantly clear that the petitioner has not only been apprised of the charge against him but also afforded opportunity of putting up his defence. Petitioner has admitted that he was convicted for several offences. His convictions related to grave charges of indiscipline including absenting from duty for about two months, being found asleep while on Sentry duty and having been found intoxicated on three occasions. Petitioner never offered to adduce evidence or documentary proof in defence. In fact he has not offered any explanation which could be taken in as a probable defense to offences proved against him or sentences awarded to him. On going through the record were are convinced that the Commanding Officer has considered the nature of offences proved against the petitioner and the impugned order of discharge has been passed, only when it was necessary in the interest of service. We are also convinced that the petitioner's service spanning eight years and 7 months is repeatedly replete with instances of gross indiscipline demonstrating utter disregard for military law. Admittedly the petitioner did not qualify for pensionable service. We are also convinced that the petitioner's service spanning eight years and 7 months is repeatedly replete with instances of gross indiscipline demonstrating utter disregard for military law. Admittedly the petitioner did not qualify for pensionable service. Retention of individual of his ilk in Defence forces was bound to impact the decorum and discipline of other troops. We are convinced that the case of petitioner was of an exceptional nature warranting his discharge as he turned out to be a chronic case of indiscipline. Being a perpetual defaulter, he proved to be incorrigible. Such a character could prove highly hazardous if retained in service. Petitioner has been discharged from service for valid reasons and in the face of material on record it can be safely stated that he has received a fair deal in so far as process of discharge is concerned. 7. There being no merit in the petition, the same is dismissed. File be consigned to records after its due completion.