Delhi High Court
Ex.L/Nk Gambhir Singh vs The Chief Of Army Staff And Ors. on 19 October, 2006
Author: G Sistani
Bench: S Kumar, G Sistani
JUDGMENT
G.S. Sistani, J.
1. Brief facts of the case as set out in the petition are that the petitioner was enrolled in the Army on 24.6.1980. In August 1994 the petitioner was discharged from the Army by the Commanding Officer of 17 Garhwal Rifles. Oral orders were issued to the petitioner in connection with his discharge from service. The petitioner was told that the reasons for discharge were of several red ink entries in his record of service. No written order in connection with his discharge was served upon him. He was not given any opportunity to show cause as to why his services may not be terminated. At the time of the discharge of the petitioner from the Army, he had completed the service of 14 years 3 months and 17 days in the army. The petitioner thus having not completed 15 years of service in the Army was deprived of opportunity of earning pensionery benefits. It is pleaded that in February 1995 the petitioner received a discharge certificate in which it was shown that his discharge has been ordered w.e.f. 11.8.1994 under the provisions of Rule 13(3)(iii)(v) of Army Rules. After the order of discharge, the petitioner had fallen ill and he had asked his wife to approach the respondents for grant of pension and pensionary benefits to the petitioner and also for relevant documents. The wife of the petitioner had addressed a letter dated 24.6.1996 and subsequent letters as well to the respondents for grant of pension. The respondents had replied that since the petitioner had service of only 14 years and 42 days and has not completed 15 years of service, he is not entitled for the pension, as per Service rules. The petitioner kept on writing letters and finally a legal notice dated 12.4.1999 was issued to the respondents and thereafter the present petition was filed.
2. It is submitted by the learned Counsel for the petitioner that the respondents have acted in a highly arbitrary and illegal manner and have not followed the due process of law and in an extremely high headed manner they have discharged the petitioner without following the procedure. It was submitted that the respondents failed to supply copies of various documents to the petitioner. No show cause notice was issued to the petitioner. As the order of discharge was illegal, the petitioner had been wrongly deprived of his right to pension and other pensionary benefits. Learned Counsel for the petitioner has also made a grievance that the respondents have failed to supply documents relating to the offences committed by the petitioner during the course of his service and in the absence of those documents the petitioner was unable to seek legal remedy in accordance with law. During the course of hearing the learned Counsel for the petitioner has laid strong stress upon the fact that at the time of discharge the petitioner had put in 14 years, 3 months and 17 days of service and the action of the respondent is highly arbitrary, illegal and above all harsh on the petitioner. It is submitted that even if the petitioner was to be discharged the respondents should have waited till the time the petitioner would be entitled to his pension.
3. Learned Counsel for the respondent has submitted that the present writ petition is a gross abuse of the process of the court as the petitioner had approached this Court with uncleaned hands and suppressed/withheld material facts. Though the petitioner was discharged from service on 11.8.1994, he approached this Court only in January, 1999, after a lapse of 5 years. The petition is barred by delay and laches. It was submitted that the petitioner was a habitual offender and had incurred 5 red ink entries for various offences committed by him under the Army Act 1950. She submitted that the provisions of Section 22 of the Army Act were complied with in each case by the Commanding Officer prior to the summary disposal under Section 80 of the Army Act. The case for discharge of the petitioner after incurring 4 red ink entries as per Army HQ letter No. A/13210/159/AG/PS-2(c) dated 28.12.1988 was deferred to provide adequate opportunity to the petitioner to improve his conduct but in vein. The petitioner not only failed to improve his conduct but also committed the 5th offence which again caused a red ink entry in his conduct sheet. After incurring 5 red ink entries for offences committed under the Army Act, the petitioner was discharged from the Army under Rule 13(iii)(v) of the Army Rules as per the procedure laid down in the Army Head Quarter letter No. A/13210/159/AG/PS-2(c) dated 28.12.1988. The counsel submitted that the retention of the petitioner after incurring 5 red ink entries would have been a serious detriment to the morale and discipline of the Army and hence the respondents were left with no alternative, but to discharge the petitioner. It was pointed out by the learned Counsel for the respondents that the first red ink entry was incurred by the petitioner on 31.5.1984 and thereafter on 20.9.1986, 20.11.1993, 4.4.1994 and 6.5.1994. The punishment ranged from 7 days detention to 28 days R.I., which the petitioner underwent from time to time. At no point of time, the petitioner had challenged the red ink entries or the action of the respondent in any departmental proceedings or otherwise. After the order of discharge having been passed, at this stage, it is not open to the petitioner to challenge the aforesaid punishments and red ink entries, which were given to him from time to time. She submitted all the relevant documents pertaining to the case were supplied to the petitioner. Even otherwise the documents pertained to the issues and charges which have become final in respect of the petitioner, who has already undergone the punishment and has not challenged the same, have been given to the petitioner. Not only the petitioner has not challenged the punishments he has failed to improve his conduct and retention of such a person would have served a detriment to the morale and discipline of the force. It is submitted that although the case of the petitioner was fit for dismissal from service, but the drastic action was not taken on compassionate ground and only an order of discharge was made. The petitioner has misled this Court by stating that no show cause notice was served on him. The petitioner was served with a show cause notice dated 27.5.1994. The said show cause notice has been filed by the respondents. Perusal of the same reveal that the same has been received by the petitioner. The petitioner had in fact even filed a reply to the show cause notice. The counsel submits that on this ground alone the present writ petition is liable to be dismissed.
4. During the course of proceedings the respondents have also filed copies of the offence reports which show the place and nature of offence, the name of the witness, the punishment awarded and the signature and designation of the officer who awarded the same. It also indicates the date of entry in the conduct sheet. Learned Counsel for the respondents has also submitted that the petitioner cannot be granted pension, vide Regulation 125 of the Pension Regulation for the Army only a maximum shortfall of 6 months in service can be waived off but here in this case there is a shortfall of 10 1/2 months.
5. We have heard the counsel for the parties and given our thoughtful consideration to the matter. The first contention of the learned Counsel for the petitioner has no merit in as much that the petitioner was served with a show cause notice dated 27.5.1994, a copy of which has been filed by the respondents along with counter affidavit. In fact the said show cause notice has been duly received by the petitioner and his signatures are appended on the said show cause notice. The petitioner has suppressed and withheld this material fact from this Court. A person who approaches the court under Article 226 of the Constitution of India is duty bound to give the complete, correct and true facts. The petitioner has not only received the show cause notice, but has also replied to the show cause notice. The reply as well as the translation of the reply has also been filed by the respondents. The show cause notice and the reply of the petitioner are extracted below:
SHOW CAUSE NOTICE UNDER ARMY RULE
No4062283N Rank Rfn Name Gambhir Singh Unit 17 Garh RIF
Your conduct sheet has been scrutinized and it is found that you have got following red ink entries.
(a) AA Section 40(e) -07 days detention on 26 May 84.
(b) AA Section 39(b) -28 days RI on 20 Sep 86.
(c) AA Section 38(b) - deprived the rank of Acting NK on 03 Dec 91
(d) AA Section 42(e) -28 days RI and 14 days CL on 14 Nov 93.
(e) AA Section 48 -28 days RI and 14 days CL on 04 Apr 94
2. It is considered that your further retention in service is not conducive to good order and efficiency to the service.
3. has therefore, directed that you should be called up to "Show Cause" as to why you should not be discharged from service on the grounds "Service no longer required" under item III(v)(States Rule applicable) to the table annexed to Army Rule 13. Therefore, if you have any reason to urge against your contemplated discharge, you may do so within 7 days from the receipt of this notice. If no representation is received from you by that date, it will be assumed that you have no cause to show and do not want to make any representation.
4. Please acknowledge.
Station: C/o 99 APO Sd/-
(Signature of competent Authority)
Dated: 27 May 94.
Receipt of above Show Cause Notice is hereby acknowledged.
Station: C/o 99 APO Sd/-
(Signature of the individual
with Army No. and Rank)
Dated: 02 June 94
Reply of the show cause notice:-
No. 4062283
Refleman Gambhir Singh
Commanding Officer,
17, Garhwal Rifle,
By-99 Army
Sub: Request for Military Service
Sir,
According to your show cause notice dated 29th May 1998, myself (Gambhir Singh) Rifleman No. ,4062283 want to say that I am working for Army since 18 years. Sir, my family situation is not normal and for that reasons I am mentally disturbed due to family problems, I have done some wrongs from time to time and for that reason I am being declared unfit for the service. Sir, I have small children and If I lose my job I will be on the roads. Their future will be in dark. So, I sincerely request you to give one more opportunity to serve in military for one year and I assure you that in future I won't be doing anything wrong which would affect my Army life and my character. Seeing my condition and my small kids' future, please give me one more opportunity. For that I will be always obliged.
Gambhir Singh.
6. In this reply to the show cause notice while requesting for one more opportunity to serve the force the petitioner has admitted that he had committed some wrongs. During the period of May, 1984 to April 1994 the petitioner had incurred 5 red ink entries as detailed below:
S. No. AA Section Offence and date of offence Punishment with date
a) Section 42(a) Neglecting to obey a local order To suffer seven days
in that he, while on 28.5.1984 detention without loss
at 1800 hr visited an out bound of pay on 31.5.1985.
area in contravention to Bn Part
I Order No. 413/83.
b) Section 39(b) Absenting himself without leave in 28 days RI in Military
that he, while on active service Custody on 20. Sep. 86
on 02. Sep. 86 at 1900h absent
without leave from unit lines and
remained absent till 03 Sep. 86
at 0700hr Total period of
absence-12 hr.
c) Section 42(e) Neglecting to obey a Local order 28 days RI and 14 days
in that he at 1930h on 14 Nov 1993 confinement to Line on
neglected to obey Bat. Daily Order 20 Nov 93
Prt I Order No. 106/93 dated 11 Apr
93 and @ 03/93 dated 11 Jul 93 by
entering had been placed out of bounds
by the said order.
d) Section 48 Intoxication in that he at 1930h on 28 days RI and 14 days
24 Mar 94 was found in a state of confinement to Lines
intoxication in the unit lines. on 04 Apr 94
e) Section 42(e) Neglecting to obey a Local Order in 28 days RI and 14 days
that at 2300 h on 04 May 94 neglected confinement to Lines on
to obey to Bn Daily Order Part 1 No. 06 May 94.
106/93 dated 11 Apr 93 by entering
Khalasi Patti which had been placed
out of bounds by the said order.
7. The petitioner has already undergone the punishment arising out of the red ink entries. At no stage, the petitioner has challenged the punishments departmentally or otherwise and thus at this stage it is not open to the petitioner to challenge the punishments which he incurred from time to time. Even otherwise from copies of the correspondence, which have been filed on record by the petitioner including communication dated 24.1.1996, 6.9.1996, 13.11.1996, 16.4.1998, 9.6.1998, the petitioner himself or through his wife have only requested for pension and has not challenged the order of discharge. However, in legal notice dated 12.4.1999 counsel on behalf of the petitioner requested for documents and submitted that in the absence of those documents he could not take recourse of legal remedies. The petitioner has been discharged on the basis of a policy dated 28.12.1988, a copy of which has been placed on record. The aforesaid policy outlines the procedure for the removal of undesirable and inefficient members in the force.
8. From the record it is apparent that the petitioner was a habitual offender and would have an adverse effect on the general discipline and administration in the force. Perusal of the record clearly shows that the petitioner was a completely indisciplined soldier and in spite of the show cause notice, he did not make any amends. The acts of indiscipline of the petitioner are totally unbecoming of a member of the Armed Force. The respondents have truly followed the procedure by issuing a show cause notice and thereafter the petitioner was discharged from service.
9. The policy dated 28.12.1998 brings out various possibilities available before dealing with an individual, who is undesirable and inefficient including that in case discharge/dismissal is not warranted and that transfer will meet the case, the said individual may be transferred in his substantive rank, not recommended for further promotion and/or increments of pay until he proves his fitness for promotion or an increment of pay in his new unit. In fact it has also been recommended in the said policy that discharge from service consequent to 4 red ink entries is not a mandatory or legal requirement. The Commanding Officer was to consider the nature of offences for which red ink entries were awarded and not be harsh with the individual especially when they are about to complete the pensionable service and due consideration should be given to the length of service. The petitioner has put in 14 years 1 month and 18 days of service and there is a shortfall of about 10 1/2 months only.
10. During the course of hearing it has been brought to our notice that the condensation of shortfall in service by the respondents for the purposes of grant of service pension which was earlier up to 6 months has now be enhanced to 12 months.
11. Keeping in view the facts that the petitioner has put 14 years one month and 18 days in service, the nature of offences committed by the petitioner and also the fact that the respondents did not consider it appropriate to pass an order of dismissal, this is a fit case where the respondents should consider the representation of the petitioner for condensation in the shortfall of service for grant of pension. Liberty is granted to the petitioner to move an appropriate representation before the respondents within one month from today. The respondents shall dispose of the representation within a period of two months, thereafter.
12. The petition stands disposed with the above directions, while leaving the parties to bear their own costs.
