No 1393884 Link Lalta Prasad Singh vs Union Of India & Others
2017 Latest Caselaw 7697 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							     A.F.R.
 
							     Reserved On: 31.10.2017
 
							    Delivered On: 06.12.2017
 

 
Case :- SPECIAL APPEAL No. - 517 of 2004
 

 
Appellant :- No 1393884 Link Lalta Prasad Singh
 
Respondent :- Union Of India & Others
 
Counsel for Appellant :- P.S. Baghel,S.K.Shukla
 
Counsel for Respondent :- S.S.C.,A.S.G.I.,Ashok Singh,B.N. Singh
 

 
Hon'ble Ran Vijai Singh,J.

Hon'ble Neeraj Tiwari,J.

(Delivered by Hon'ble Neeraj Tiwari, J.)

We have heard Sri S.K. Shukla, learned counsel for the appellant and Sri Ashok Singh, learned counsel appearing for Central Government.

This appeal has been filed against the judgement and order dated 23.3.2004 passed in Civil Misc. Writ Petition No. 23393 of 1989 (No 1393884 Link Lalta Prasad Singh Vs. Union of India and others), by which the writ petition has been dismissed. The writ petition was filed against the order of discharge from the service.

The facts of this case, in brief, are that the appellant/petitioner was initially enrolled in the Army Medical Corps on 1.4.1975. His first posting was at 55 Armed Forces Medical Stores Depot, Sri Nagar. In 1977, he was posted at Army Medical Corps Training Centre, Lucknow; in March 1978, he was posted at 81 Medical Battalion Hyderabad; thereafter, he was posted at 91 Medical Battalion Shri Ganga Nagar, Rajasthan; in April 1982, he was posted at 324 Field Ambulance, Bikaner - Indo-Pak Border in Rajasthan; thereafter at 308 Field Ambulance, Manipur- Tripura. In 1986, he was posted at 306 Field Ambulance, Bareilly and in 1987, he was posted at Military Hospital, Allahabad.

While working at Military Hospital, Allahabad, a show-cause notice dated 28.7.1989, issued by Lieutenant Colonel 'A' from Headquarter, Allahabad Sub Area, Allahabad, was served upon the appellant/petitioner, mentioning the details of four red ink entries, requiring the appellant/petitioner to show-cause as to why he be not discharged from service. Appellant/petitioner herein has filed his reply on 21.8.1989. A copy of the show-cause notice as well as the discharge order are on record of this appeal. The Competent Authority i.e. Commanding Officer has passed the order of discharge on 17.11.1989 (Annexure No. 3 of the Stay Application).

Aggrieved by the order of discharge, the appellant/petitioner herein has filed Writ Petition No. 23392 of 1989 (No 1393884 Link Lalta Prasad Singh Vs. Union of India and others), challenging the order of discharge on number of grounds, mainly that while passing the order of discharge, the Army Circular "Copy of Army HQ letter No. A/13210/AG/ RS-2(C) dated 11th March, 1985" in which mandates that the Commanding Officer must consider the nature of the offence for which each red ink entries has been awarded and not to harsh the individuals, especially when they are about to complete pensionable service has not been considered.

Here in the case of the appellant/petitioner, it is stated that only five months service was required to be completed for pensionable service, but that aspect of the matter has not been considered by the Commanding Officer, he also did not consider the nature of offence for which red ink entries were awarded. It is also contended that without there being any enquiry with regard to the charges levelled in the show-cause notice against the appellant/petitioner and without granting any adequate opportunity to put forward his defence, the order of discharge has been passed even without considering the reply of the applicant/petitioner to the show-cause notice.

The learned Single Judge, after going through the contents of the writ petition, counter affidavit and various pronouncements of the Apex Court including the case of Union of India & Others Vs. Corporal A.K. Bakshi & Another 1996 AIR 1368, 1996 SCC (3) 65, has dismissed the writ petition. The judgement of the learned Single Judge has been assailed almost on the same ground, stating that the learned Single Judge did not consider the relevant aspect of the matter, particularly the nature of the order of discharge, which does not contain any reason and even the reply, to the show-cause notice, given by the appellant/petitioner.

Sri S.K. Shukla, learned counsel for the petitioner/appellant placing reliance upon the judgement of the Apex Court (2016) 2 Supreme Court Cases page 267 Veerendra Kumar Dubey Vs. Chief of Army Staff and others has submitted that before passing the order of discharge, it was incumbent upon the Commanding Officer to make an inquiry regarding the charges levelled against the appellant/petitioner and an adequate opportunity to put forward his defence ought to have been given, but nothing has been done and straight away an order of discharge has been passed, which cannot be sustained in the eyes of law.

Refuting the submission of the learned counsel for the petitioner, Sri Ashok Singh, learned counsel for Central Government submitted that before awarding red ink entries to the appellant/petitioner, the petitioner was given full opportunity and after considering his reply the red ink entries were awarded. There was no need to provide further opportunity to rebut the charges as has been submitted by the learned counsel for the petitioner. In addition to that, he also submitted that under the Army Rule 13(III)(V), there was no requirement to hold an enquiry for proving the charges mentioned in the show-cause notice, therefore, there was no procedural lapse for which it can be said that the inquiry is vitiated. He has also submitted that there is no requirement to record the reasons in detail after considering the contents of the show-cause notice and reply to the show-cause notice, while passing the order of discharge.

We have heard learned counsel for the parties and perused the record of the Special Appeal. It is undisputed fact that the appellant/petitioner was awarded with four red ink entries on different occasions in the different years as mentioned in the show-cause notice.

The discharge order which is reproduced herein under does not contain any reasons:

"1- You have been discharged from service w.e.f. 18 November 1989 (FN) under the provisions of Army Rule 13 (3) III (V) duly sanctioned by Commander, Allahabad Sub Area as your services are no longer required.

2- Your final settlement of account will be carried out by PAO (OR) AMC, Lucknow in consultation with the RO AMC, Lucknow subject to your signing the various claims and the amount will be remitted to you by AMC record in due course."

Except the show-cause notice requiring the reply, no opportunity was offered to the petitioner/appellant to say something or produce something in evidence in rebuttal to the charges levelled in the show-cause notice. The Apex Court in the judgment of Veerendra Kumar Dubey (Supra) has observed as under:

"A careful reading of the above would show that the competent authority has made it abundantly clear to officers competent to direct discharge that before discharging an individual, not only should there be a show-cause notice but an enquiry into the allegations made against the 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."

Further, in paragraph no. 14 of the judgement of the Apex Court has observed as under:

"14. It is true that Rule 13 does not in specific terms envisage an enquiry nor does it provide for consideration of factors to which we have referred above. But it is equally true that Rule 13 does not in terms make it mandatory for the competent authority to discharge an individual just because he has been awarded four red ink entries. The threshold of four red ink entries as a ground for discharge has no statutory sanction. Its genesis lies in administrative instructions issued on the subject. That being so, administrative instructions could, while prescribing any such threshold as well, regulate the exercise of the power by the competent authority qua an individual who qualifies for consideration on any such administratively prescribed norm. Inasmuch as the competent authority has insisted upon an enquiry to be conducted in which an opportunity is given to the individual concerned before he is discharged from service, the instructions cannot be faulted on the ground that the instructions concede to the individual more than what is provided for by the rule. The instructions are aimed at ensuring a non-discriminatory, fair and non-arbitrary application of the statutory rule."

Learned counsel for Union of India could not establish from the perusal of the record that except requiring the appellant/petitioner reply to the show-cause notice at any point of time, no opportunity was offered to the petitioner/appellant to adduce some evidence in order to defend the charges levelled against him, it could also not be disputed that the order of discharge contains no reasons, it is simply an order of discharge without discussing even the contents of the show-cause notice and the reply of the appellant-petitioner.

The order of discharge did not follow the spirit of the circular dated 28.12.1988 which mandates that before passing the order of discharge, the authority concerned must look into the gravity of the charges and consider other facts. The appellant/petitioner was going to complete pensionable service within five months. Further more this is not mandatory that when a person has been awarded four red ink entries, he must be terminated/discharged from the service.

In view of the facts that no reason is recorded to discharge the petitioner/appellant from the service and he has been discharged only for the reasons that four red ink entries have been awarded to the petitioner/appellant, in our view, it is in violation of the circular dated 11.03.1985. Therefore, in the light of discussions made, herein above, and the law laid down by the Apex Court in the case of Veerendra Kumar Dubey (supra), we are of the considered opinion that the order passed by the commanding officer to discharge the petitioner/appellant from the service is petantly illegal unsustainable in the eye of law. Therefore, we set aside the order of writ Court dated 23.03.2004 and discharge order dated dated 17.11.1989 passed by Colonel/Commanding Officer.

Considering the fact that the petitioner/appellant, who has filed the appeal, has passed away long back, it is directed that the appellant be treated in service till 31.3.1990 i.e. up to completion of 15 years to complete the qualifying service for grant of pension. The heirs and legal representatives, who are now pursuing the appeal will be entitled to receive all amount which they are legally entitled to receive on account of pensionable service of the deceased employee. However, petitioner will not be entitled for back wages.

The appeal is allowed to the extent mentioned hereinabove.

Order Date :- 06.12.2017/sartaj