Gunner Mamraj vs The Chief Of The Army Staff And Ors.
2001 Latest Caselaw 617 Del

ORDER

Khan, J.

1. The primary question involved in this Appeal is whether order discharging Appellant from service was invalid for having been passed by an incompetent Authority.

2. Appellant was convicted and sentenced by the Court Martial four times and had earned four "red ink" entries. He was put on show cause notice dated 15.9.1994 informing him that his retention is service was undesirable under para 590 of Artillery Records Instructions, 1990 and Army Headquarter Letter No. A/13210/159/AG/PS 2(c) dated 28.12.1988 and to show cause why his services be not terminated under Army Rule 13(3)(v). He replied to this, but was discharged all the same vide discharge certificate dated 1.10.1994 communicated and signed by his Commanding Officer.

3. Appellant filed CW 2674/95 to challenge this on a variety of grounds also questioning the court martial proceedings and the charges levelled against him etc. Though his general grievance was that respondents had not replied to the objections taken by him to the show cause notice and had discriminated against him by allowing some other personnel to continue in service even though they had earned five such entries, him main thrust was that his order of discharge was not passed by the competent authority, i.e., Brigade or Sub-Area Commander under Rule 13(3)(V).

4. Respondents denied this to oppose Appellants petition and submitted that action against him was taken in conformity with the relevant rules and Army Instructions/Letters and that his order of discharge was authorised by Commander, 27 Mountain Artillery Brigade, which was communicated to him by his Commanding Officer under Section 23 of the Army Act.

5. Appellant's writ petition was dismissed by impugned order dated 21.5.1998 though without dealing with his star contention that his order of discharge was allegedly passed by an incompetent authority. He feels aggrieved of this and has filed this Appeal to assail the order for side-tracking the main issue.

6. L/C for appellant Capt.Virender Kumar focused more on this than anything else. He reiterated that he order of discharge was passed by the Commanding Officer who was not competent to do so. He pointed out that under Army Rule 13(3)(v) only Brigade or Sub-Area Commander could pass this order after giving show cause notice to Appellant. He had issued the show cause notice alright but had failed to pass the order himself as mandated by the Rule.

7. He also complained that this order was vitiated because of Respondents failure to reply to his objections and charges against appellant were not supported by facts. No other plea was taken and argued by the L/C.

8. Mr.Sachdeva, L/C for respondents, however, asserted that both show cause notices and the order of discharge was passed in conformity with the provisions of the Army Act/Rules and Army Regulations/Instructions. He explained that para 590 of ARI and Army HQ letter dated 28.12.1988 authorised discharge of appellant on account of being undesirable for retention in service and that such order of discharge was to be passed in accordance with Army Rule 13(3)(V) and communicated in terms of Section 23 of Army Act. He also submitted that appellant could not challenge the factum of charges levelled against him or for that matter court martial proceedings at this stage and rake up disputed questions of fact.

9. All that remained to be seen in this background was whether order of discharge was validly passed and communicated by the competent authority. For this it becomes necessary to reproduce Rule 13(3)(V) and Section 23 of the Army Act for proper appreciation.

10. Rule 13(3)(v):

Ground of Competent authority Manner of discharge discharge to authorise discharge

All other Brigade/Sub-Area Commander The Brigade or Sub-

classes of       Area Commander be-
discharge       fore ordering the
       discharge shall, if 
       the circumstances
       of the case permit
       give to the person
       whose discharge is
       contemplated an
       opportunity to show
       cause against the 
       contemplated
       discharge.
 


 Section 23 of the Army Act:
 

"Certificate of termination of service--Every junior commissioned officer, warrant officer, or enrolled person who is dismissed, removed, discharged, retired or released from the service shall be furnished by his commanding officer with a certificate, in the language which is the mother tongue of such person and also in the English language setting forth-

11. A conjoint reading of these provision with relevant Army Instructions/letters leaves no scope for doubt that appellant was liable to be discharged for being undesirable for retention in service and that it was for the competent authority to adjudge his such desirability on the basis of his service record. It is not in dispute that appellant had suffered four "red ink" entries which clouded his retention in service and could be discharged in the process. His discharge could not be said to be lacking in basis or material. But his order of discharge was still required to be passed by the competent Authority.

12. Army Rule 13(3)(V) only empowers Brigade/Sub-Area Commander to pass the order of discharge but for this requires him to give show cause notice to the person concerned proposed to be discharged whether circumstances permit.

13. In the present case there is no dispute that Brigade/Sub-Area Commander had issued notice of discharge. The only dispute is that he had not passed the order of discharge. Though this is denied by Respondents and certificate of discharge also show that the order was passed by Commander, 27, Mountain Antillery Brigade, but Appellant and his counsel still persist in their charge. It appears to us that Appellant was mixing up the issue and treating discharge certificate as order of discharge. The order passed by the Brigade Commander is borne by records and it is only discharge certificate which was signed by Commanding Officer and communicated to Appellant which he perhaps mistakes for the order and believes it to be signed by Commanding Officer and not the Brigade Commander. Appellant's allegation in this regard is not supported by any proof whatever and there is no scope to ignore the official version/record to uphold his claim. The order of discharge is accordingly held to be validly passed by the competent authority and communicated by the Commanding Officer under Section 23 who required him to furnish appellant with a certificate containing particulars prescribed therein.

14. Appellant's other grievance that charges against him were not supported by facts and the court martial proceedings were vitiated for some reason, is his mere ipse dixie. It is too late in the day for him to raise such ancillary issue when he had admittedly failed to challenge all this at the relevant time. This Appeal accordingly fails and is dismissed.