Ex. Sepoy Sube Singh vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 773 Del

JUDGMENT

T.S. Thakur, J.

1. In this petition for a writ of certiorari, the petitioner calls in question an order of discharge of the petitioner from service and a mandamus directing the respondents to reinstate him with all consequential benefits.

2. The petitioner was enrolled in the Indian Army as Sepoy on 25th August, 1987. By an order passed in December 2000, impugned in this petition, he was discharged on the ground that his services were no longer required. On the date of his discharge, the petitioner had rendered 13 years of service and served for more than 12 years on the national borders, counter insurgency area and as a member of the Indian Peace Keeping force in Srilanka apart from having served on the high altitude Siachen Glacier. The petitioner's case as set out in the writ petition is that in December 2000, he had an altercation with his Commanding Officer in connection with the refusal of annual leave to him despite the fact that his wife was seriously ill on account of having undergone an open heart surgery. The petitioner alleges that the Commanding Officer had, in the heat of the moment, ordered that if the petitioner's wife was so important he could go on discharge and in rage directed that the petitioner be sent on discharge with the remarks "Services no longer required". The petitioner's further case is that although the authority competent to discharge him was the Brigade Commander or the Sub Area Commander, the matter was not referred to him nor was any notice issued to the petitioner to show cause why he should not be so discharged. The order of discharge has in that backdrop been assailed on the ground of being legally incompetent apart from the ground that the same is in violation of Army Rule 13(3)(v) which envisages issue of a show cause notice to the person being discharged. The petitioner's case is that he had served the Army with utmost dedication for nearly 13 years out of which 12 years were spent in the border areas. He alleges that despite the fact that he had furnished medical documents showing about his wife's illness and surgery, sanction of leave was unfairly denied to him. The Commanding Officer's anger and the consequent order of discharge passed by him were both unjustified argued the petitioner.

3. The respondents have filed a counter affidavit in which it is inter alia pointed out that the petitioner's discharge was on account of red ink entries in the service record of the petitioner. The counter affidavit alleges that the petitioner had been, on six different occasions, found guilty of offences punishable under Section 39(b) and 48 of the Army Act for overstaying leave and for intoxication and sentenced to undergo imprisonment ranging from 7 to 28 days. It is also alleged that the petitioner had failed to show any improvement in his conduct and that a show cause notice was issued to him to which he had submitted a reply which was upon consideration found to be unsatisfactory. Since the petitioner did not have the requisite 15 years of service necessary for payment of service pension, the question of granting him any service pension or pension pro-rata did not arise.

4. We have heard the learned Counsel for the parties and perused the record. Section 22 of the Army Act empowers the competent authority to retire, release or discharge from service any person subject to the provisions of the said Act. Army Rule 13 numerates the authorities competent to do so. In response to notice dated 21.10.2000 issued to the petitioner to show cause why he should not be discharged from service as he had become unsuitable for retention in the same, the petitioner had submitted a reply explaining the reasons leading to the imposition of the punishments upon him. A reading of the said reply would show that the primary reason for the petitioner suffering punishments one after the other was the illness of his wife who it appears had multiple medical problems including a heart ailment for which she had to undergo open heart surgery. It is also evident from the reply that the petitioner had made a specific request for being allowed to continue in service so that his service became pensionable. This is evident from the following passage appearing in the reply submitted by the petitioner to the show cause notice.

As such, keeping in view my aforestated problems and taking pity on me a soldier, your honour is requested to provide me an opportunity to do service till my becoming eligible for pension. I assure you that I shall not commit any mistake in future and if found guilty, I may be removed from the service.

5. The reply filed by the petitioner notwithstanding the petitioner's discharge was sanctioned by the Brigade Commander concerned in terms of an order signed by him on 30.10.2000. There was no violation of the principle of natural justice in the process as the discharge was admittedly preceeded by the issue of a show cause notice to the petitioner. That being so, the only question that remains to be examined is whether the authority who discharged the petitioner had acted fairly and objectively and after due and proper application of mind.

6. The Army Headquarters have laid down the procedure for removal of undesirable and inefficient JCOs, WOs and ORs under Section 22 read with Rule 13 of the Army Rules referred to earlier. A copy of the policy circular dated 18.12.1988 has been placed on record as Annexure R-1 to the counter affidavit filed by the respondents, a reading whereof shows that the reply of the individual to the show cause notice served upon him had to be forwarded to the authority competent for consideration and for passing appropriate orders on the same. The competent authority has, on receipt of the said reply and relied upon documents, to pass an appropriate order keeping the following procedure and priorities in view:

(f) Final orders by the Competent Authority. The authority competent to sanction the dismissal/discharge of the individual will before passing orders reconsider the case in the light of the individual's reply to the show cause notice. A person who has been served with a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the requirements of the case. If the competent authority considers that termination of the individual's service is not warranted but any of the actions referred to in (b) to (d) of Para 2 above would meet the requirements of the case, he may pass orders accordingly. On the other hand, if the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactory, he will pass orders accordingly.

Note :- 1. As far as possible, JCO, WO and OR awaiting dismissal orders will not be allowed to mix with other personnel.

2. Discharge from service consequent to four red ink entries is not a mandatory or legal requirement. In such cases, Commanding Officer must consider the nature of offences for which each red ink entry has been awarded and not be harsh with the individuals, especially when they are about to complete the pensionable service. Due consideration should be given to the long service, hard stations and difficult living conditions that the OR has been exposed to during his service, and the discharge should be ordered only when it is absolutely necessary in the interest of service. Such discharge should be approved by the next higher Commander."

7. It is evident that while taking a final decision on the recommendations made to him and the reply received from the person concerned, the competent authority has to keep in mind, the following:

(a) Discharge from service consequent to the red ink entries is not a mandatory or legal requirement;

(b) The nature of the offences for which each of the red ink entries has been awarded;

(c) The Commanding Officer has not to be harsh with the individual specially when he is about to complete pensionable service;

(d) The Commanding Officer has to give due consideration to the long service, hard situations and difficulty in communication which the ORs have been exposed to during the service and order discharge only when it is absolutely necessary in the interest of service. In which event the discharge shall have to be approved by the next higher authority; and

(e) whether instead of terminating the individuals service, any one of the options referred to in para 2(b) to (d) of the policy circular would meet the requirements of the case.

8. Para 2(b) of the Policy Circular referred to above deals with a case where the JCOs transfer would meet the requirements, in which event he could be transferred in his substantive rank and not recommended for further promotion and/or increment of pay until he proves his fitness for promotion and/or increment of pay in his new unit. Para 2 (c) of the Circular deals with cases where the competent authority considers that WOs or NCOs discharge/dismissal is not warranted and that transfer would meet the requirement of the case. In such a situation the competent authority may transfer him and even reduce him to a lower grade or rank. Para 2 (d) deals with situations where the Commanding Officer reverts the NCO to a substantive rank in stead of dismissing or discharging him and if he has no substantive NCO rank then he may be reverted to the ranks under Army Act 20(6) before he is transferred. Suffice it to say that paras 2(b) to 2(e) referred to in para (f) of the policy circular extracted above clearly provide transfer and reversion as alternatives to discharge or dismissal in appropriate cases. What is important is that while considering the question as to what order should be passed, the competent authority has to keep in mind the different aspects indicated in Para (f) (supra) of the Policy Circular.

9. In the case of discharge proposed on the basis of red ink entries, the competent authority has also to bear in mind that such discharge does not become mandatory merely because of such entries having been made. Nature of the offences for which such entries have been awarded has also to be considered by the competent authority. More importantly, the authority has to keep in mind that in the case of individuals who are about to complete their pensionable service, there is no injustice or harshness caused because of discharge. It is obvious that injustice would be more in cases where the person being discharged was about to complete pensionable service than those who have yet to put in the requisite number of years. All told, the competent authority has an onerous duty to perform while deciding whether or not to discharge an individual from service. The least that he must, therefore, do is to ensure that he applies his mind to each one of the factors that are made relevant by the circular and which even independent of the circular appear to be relevant to a proper exercise of power vested under Section 22 Rule 13 of the Army Act and the Rules

10. There is in the instant case nothing on record before us to show that the officer discharging the petitioner was alive to the factors made relevant by the policy circular which ought to operate as guiding principles for a fair and proper exercise of the power vested in him. The Brigade Commander, 52 Infantory Brigade has simply signed on the dotted lines without adding a single word to what is already printed in the form. It is difficult to infer a proper application of mind in such circumstances on his part. Learned Counsel for the respondent however argued that there may be a separate order elsewhere in the official record disclosing due and proper application of the mind on the part of Brigade Commander. That was indeed a distinct possibility which we did not wish to exclude from consideration. We, therefore, directed the respondents to procure the relevant record from the concerned quarters for perusal of the court. The respondents have not been able to do so nor is any other material produced before us to show that the Brigade Commander had indeed applied his mind to what was relevant for purposes of ordering discharge. Simply sanctioning the discharge would not, therefore, meet the requirements of law. We are conscious of the fact that in matters relating to Armed forces, courts adopt a liberal approach in accepting as valid orders even when they are not reasoned. Some amount of latitude is in the very nature of military customs, disciplines and heirarchy due to the armed forces. That latitude cannot however extend to upholding an order which does not on the face of it show due and proper application of mind by the authority passing the same. If the Army Headquarter has itself issued instructions setting out the procedure which the decision making process must go through, we see no reason why the authority should ignore the said instructions and pass orders that are non-speaking and cryptic. Keeping in view the nature of the order, the implications the same has for the individual and the need for fairplay and justice even in matters relating to service in Armed forces, we have no hesitation in holding that an order passed without application of mind would fall short of the legal standards.

11. The next question then is as to what relief should be granted to the petitioner. Major Ramesh, learned Counsel for the petitioner did not dispute the fact that in the light of the service record of the petitioner and the fact that the petitioner has been out of service for the past seven years or so, his reinstatement in the army is not feasible at this distant point of time. He submitted and, in our view rightly so, that the interest of justice would be sufficiently served, if this Court moulds the relief appropriately to suit the changed situation in which the petitioner is now placed. He urged that the petitioner having rendered twelve years of active service would have completed his pensionable service by 31th October, 2002 had he not been discharged in terms of the impugned order. This Court could, therefore, mould the relief in such a manner that the petitioner gets his service pension without even directing the petitioner's reinstatement in service or granting any other pensionary benefit to him. We see no reason to decline that limited prayer. We are of the view that the minimum which the petitioner must be held entitled to, is the service pension and other benefits due upon completion of the 15 years of service in the Indian Army. This can be achieved by directing that instead of the petitioner's discharge taking effect on the date mentioned in the impugned order, the same shall take effect on the date he would have completed 15 years of pensionable service. Consequently, the petitioner's discharge pursuant to the impugned order of discharge shall be deemed to have taken effect from 21st October, 2002. The extended period of service will not however entitle the petitioner to any arrears of salary, but for purposes of all retiral/pensionary benefits, the petitioner shall be deemed to have completed his pensionable service as on the date of his discharge. The respondents shall in consequence of the above, process the petitioner's case for payment of pension and ensure that the same is released to the petitioner expeditiously but not later than six months from the date of the pronouncement of this order.

12. The writ petition is with the above directions disposed of leaving the parties to bear their own costs.