Delhi High Court
Signalman Tejpal vs Union Of India (Uoi) And Ors. on 16 November, 2006
Author: S Kumar
Bench: S Kumar, G Sistani
JUDGMENT
Swatanter Kumar, J.
1. The petitioner was enrolled in Corps of Signals as Clerk (GD) on 7th March, 1991. In March, 1999, the petitioner was placed in low medical category CEE (Temporary) for Alcoholic Dependence Syndrome. He did not improve much and in March, 2001 he was placed in low medical category BEE (Temporary) for the same disease and was posted to 2 Corps Signal Regiment (AREN) where he was tried summarily and punished on four occasions in relation to alcoholic related offences by respondent No. 5. Show cause notice was issued to him on 3rd November, 2000 by respondent No. 5. In furtherance to said show cause notice, vide order dated 12th December, 2000 the respondent No. 5 recommended discharge of the petitioner. The petitioner was interviewed by Chief Signal Officer HQ 2 Corps. Another show cause notice was issued on 7th March, 2001 on behalf of respondent No. 4. The petitioner submitted his reply on 28th March, 2001.
However, the petitioner was discharged from service on disciplinary grounds and not on medical grounds on 21st September, 2001. Aggrieved from this action of the respondents, the petitioner served a legal notice dated 4th December, 2001 upon the respondents. However, no relief was granted to the petitioner. The petitioner filed a writ petition bearing No. 5292/2002, which was withdrawn by him on 23rd August, 2002 with liberty to file fresh writ petition as challenge to order dated 27th February, 2002 was not included by oversight. On these averments the petitioner prays in the present writ petition under Article 226- 227 of the Constitution of India that his discharge/termination from service is illegal and is not in compliance with Rule 13(3) Item III(V). He prays that discharge certificate dated 21st September, 2001 along with order dated 27th February, 2002 passed by Signal Officer-in-Chief on behalf of respondent No. 2 be quashed and in terms of policy on Management of Medical Examination of JCOs/ORs, annexure P-1 to the petition, the petitioner should be granted benefit of invaliding pension and status of Ex-serviceman.
According to respondents, the petitioner was Regular Offender of alcoholic related offences and his behavior was abnormal. He was even subjected to psychiatric treatment but there was no improvement. The petitioner was given each and every possible advice and assistance, and all possible restrictions were imposed on him, which would be helpful to protect his life, health as well as his military career, however none of them yielded any fruitful results. Imprisonments were also imposed on the petitioner but of no consequence. During the medical examination, the Re-categorisation Board had recommended that he be invalided out of service. However, the medical authorities continued the individual in medical category BEE (Temporary) for another 6 month. Finally in accordance with provisions of Army Act 20(3) read with Army Rule 13 and 17, the petitioner was ordered to be discharged from service being undesirable to the organisation. It will be appropriate to refer to the stand taken by the respondents in the very opening of their counter affidavit, which reads as under:
1. That the petitioner Ex Signalman Tejpal was enrolled in the Army on 7th March, 1991 and discharged under Army Rule 13(3) Item III (v) from service locally on 21st September 2001, by the order of General Officer Commanding 2 Corps vide their letter dated 29th August 2001 as 'Services no longer required being an undesirable soldier.'
2. That the petitioner was a habitual drinker probably prior to joining the Army. It is submitted that the petitioner was committing offences very frequently under Army Act 48(i) of Intoxication right from joining his first active unit on completion of basic as well as technical trade training. Details of such offences and punishment awarded are given as under:
S. Army Act Offence Punishment Date of Award Awarded by
No. Awarded
(A) Section 48(i) Intoxication 7 days RI 13.9.93 Col. S.K.
Srivastava
CO North.
Commd. Signal
Regiment.
(B) Section 48(i) - do - 14 days RI 11.12.95 - do -
(C) Section 48 - do - 28 days RI 02.06.97 Col. SK Tarnach
CO, 54 Infantry
Divisional
Signal Regiment
(D) Section 48 -do- -do- 27.9.98 Col. U.K.
Chopra CO, 54
Infantry
Divisional
Signal Regiment.
(E) Section 39(b) Over Staying 14 days CL 6.7.99 Leave
Col. PPA
Nair CO
Signals Recor
(F) Section 48 Intoxication 14 days RI 2.11.00 Col. N.P.
Murlidharan
CO, 2 Corps
Grid Signals
Regiment
(AREN)
(G) Section 39(d) Absent from - do- 25.11.00 Duty Col. N.P.
Murlidharan
CO, 2 Corps
Grid Signals
Regiment
(h) Section 63 An act Prejudicial - do - 19.12.00 - do -
to good order and
military Discipline
(i) Section 63 - do - 7 days RI 9.3.01 - do -
3. It is pertinent to mention here that the authorities in the Army are not basically meant for awarding punishment to their men serving under them. Though the punishment is not an only ultimate means to maintain a high standard of Military discipline but is often helpful in doing so. It is further submitted that it is not the case that the petitioner was straight away awarded punishment, he was in fact advised/Counselled for avoiding excessive use of alcohal before exercising the powers conferred on the Army authorities.
4. It is submitted that keeping his four consective punishments for the same offence i.e. under Section 48(i) of the Army Act, i.e., intoxication and his frequent involvement therein, it was necessary for the unit where he was serving i.e. 54 Infantry Divisional Signals Regiment to observe his habits and trends. On observation, his personal behavior was noted to be abnormal and therefore, his Psychiatric examination was considered necessary.
5. The petitioner was made to report to the Military hospital Secunderabad for the treatment and was treated in the best manner. At the Military Hospital in Secunderabad, he was diagnosed as a patient of 'Alcohal Dependence Syndrome- 303'. Following that he was first downgraded to medical category CEE (Temporary) for 6 months with effect from 15.3.99 for the disease by medical board held at Military Hospital Secunderabad ANNEXURE of AFMSF-15 (?) dated 15.3.99 as ANN R-1). Subsequently also the petitioner was placed in the various medical categories for the above disease by the subsequent medical boards held at the Military Hospitals, the details of which are shown as herein below:
S. No. Period/Medical Category Duration Military Hospital
(a) 15.9.99 14.3.2000 CEE (Temporary) 06 months Jabalpur
(b) 15.9.99 14.9.2000 BEE (Temporary) - do - - do -
(c) 15.9.200 14.3.2001 - do - - do - Ambala Cantt
(d) 15.3.2001 S2 (Permanent) 2 years - do -
H1A1P1E1
The Medical Board Proceedings AFMSF-15A are being filed herewith as Annexures R-1, R-2, R-3 and R-4 respectively.
6. It is submitted again that the petitioner was given each and every possible advice and assistance, all possible restrictions were imposed on him which would be helpful to protect his life, health as well as his Military career, however, none yielded any fruitful results. The petitioner not only defied all the advice/counselling given to him and continued to consume alcohal by getting it from unauthorised sources in clear breach of medical advise and administrative and unsoldierly and also a bad influence on the fellow soldiers. Keeping all these aspects in view, his discharge from service or locally discharged as his services were not longer required being an undesirable soldier, became imminent....
Learned Counsel appearing for the petitioner contended that in terms of policy, annexure P-1 to the writ petition, the respondents were obliged to rehabilitate the petitioner in terms of scheme and alcohal dependence and drug abuse being incompatible with the military service. The petitioner should have been invalided out of service with all the benefits. He also stated that the respondents failed to take care of petitioner in accordance with spirit of the scheme and the rules framed there under.
We may notice that the petitioner had been granted liberty by the Bench, which heard CWP No. 5292/2002, to file fresh writ petition. As such, the objection of the respondents that present writ petition is not maintainable is without merit.
The policy, annexure P-1, framed by the respondents vests no indefeasible right much less accountability right in the petitioner to claim that he ought to have been invalided out of military service if he was incompatible to the military service. According to the petitioner, he could not be discharged and authorities could only invalidate him out of military service. We are unable to find any merit in this contention. It cannot be disputed that in terms of Section 23 read with Rule 13 and 17 of the Army Rules, the petitioner could be discharged by following the due process. In the present case, the petitioner was served with show cause notice, which was not taken to its logical end and was again given a show cause notice after a lapse of about 4 months on 7th March, 2001. In the show cause notice, every possible detail was given and various punishments referred to in the counter affidavit were also stated. In reply to this show cause notice, the petitioner did not dispute awarding of punishment but claim that the said punishments were wrongly awarded. Despite every chance given to him by the respondents to improve, he persisted with committing further alcohol related offences. When he was subjected to Medical Board, the medical authorities had noted that 26 year old Signalman with 8 years of service is a case of Alcohol Dependence Syndrome. He had been admitted to hospitals with prolonged history of alcohal abuse and abnormal behavior. He had manifested withdrawal features including paranoid thinking and fleeting hallucinations. Alcohol abuse habits of 5-6 pegs/day disburbed his health as well as occupational performance as reflected in AFMSF-10 report. He was reportedly punished four times for alcohol related offences and was counselled several times to abstain from alcohol but the counselling was really not of much consequence.
In law, the respondents are vested with jurisdiction and authority under the provisions of law and it is for the competent authority to decide as to what action should and ought to be taken against the offender and in the event he is found to be unfit for military service, what procedure is to be adopted. Once the authorities complied with the requirements of law and followed the laid down procedure, the Court can hardly sit over the discretion exercised by the authorities.
Learned Counsel appearing for the petitioner has not been able to show as to which provision of the Army Act or the Rules has been violated while passing the order of the discharge. The mere fact that respondents attempted their best to retain the petitioner in service and granted him chances to improve himself cannot be taken so as to be adverse to the interest of the respondents. The petitioner persisted with his offences particularly relatable to alcohol and caused embarrassment to the Force. In these circumstances, the respondents in compliance with the provisions of Section 20 served a show cause notice and after providing due opportunity to the petitioner discharged him from service in accordance with law. This action of the respondent is in consonance with the judgment of this Court in the case of Ex. Const. Bijender Singh v. Union of India and Ors. (WP(C) No. 5297/2003 decided on 31st August, 2006) wherein it has been held that respondents have the power but they must comply with the prescribed procedure by serving a show cause notice and granting due opportunity to the delinquent. The ingredients of those sections are fully satisfied and we find no error in the order passed by the respondents discharging the petitioner from service.
Resultantly, this writ petition is dismissed by leaving the parties to bear their own costs.
