Ex. Rfn. Devi Singh vs Union Of India & Ors.
2008 Latest Caselaw 1685 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                               WP (C) No.12928 of 2006


%                                              Date of decision: 19.09.2008


EX. RFN. DEVI SINGH                                    ...PETITIONER
                                Through:   Mr. S.M. Dalal, Advocate.


                                      Versus


UNION OF INDIA & ORS.                                 ...RESPONDENTS
                                Through:   Ms. Barkha Babbar, Advocate
                                           with Major S.S. Pandey for the
                                           Respondents.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                No

2.        To be referred to Reporter or not?                 No

3.        Whether the judgment should be
          reported in the Digest?                            No

SANJAY KISHAN KAUL, J. (Oral)

1. Rule DB.

2. The petitioner was enrolled in the Army as a Sepoy

Musician on 24.4.1996. On completion of his basic military

training, the petitioner was transferred to the

Administrative Battalion of Rajputana Rifles Centre in

November 1996. It is the case of the petitioner that he was

not given any formal training of his trade but was detailed

to perform duties of general nature, not connected with the

trade of a musician.

3. The petitioner was sent in September 2001 to attend a

Young Bandsman Course at AEC Training College and

Centre Panchmarhi. The course was scheduled for a period

of nine (9) months but the same had to be prematurely

terminated after about three (3) months due to Operation

Parakaram. The petitioner has also pleaded that from

December 2002 to April 2003 he was detailed for Young

Bandsman Course but was found lacking in training

because he had not been given sufficient pre-course

training at the Rajputana Rifles Centre prior to his being

detailed for the course.

4. A show cause notice was issued to the petitioner on

29.7.2003 in the following terms:

"SHOW CAUSE NOTICE

1. You are informed that you are in the Brass Band of Regimental Centre for the last 7 years. And your tests were taken on the following dates results of which is given against each:

S.No. Date By whom the test was held Result A 05 Nov 99 Inspector of Army Band, Unfit Western Command B 17 May -do- Absent

C 27 Aug 2002 Major Nasir Hussain Advisor Unfit Army Music Army HQ D 10 Feb 2003 Inspector of Army Band, Unfit Western Command Capt R.K.

                           Gurang
    E          13 Apr 2003 Commandant                        Unfit
    F          19 Jul 2003 Commandant                        Unfit
    G          08 Aug 2003 Course Young Band Man-23          Sent    back
                           AEC    College  &    Center       from     the
                           Panchmarhi                        Course.

2. From the above result it appears that you do not take any interest to attain proficiency in your work. Keeping in view all these matters, why disciplinary proceedings be not initiated against you under Army HQ Letter No.1/13210/159/-- dated 28

December 1999. Your reply should reach this office by 01 August 2003.

Sd/- Mandna (M.K. Mandna) Col.

Dy Commandant."

5. The petition sent a reply in the following terms:

"(a) Test was held on 5 November 99. At that time I was in Duty Company and was not present here because I was posted in the Duty Company.

(b) Test was held on 17 May 2002. At that I was posted as runner in the office of the Commandant. On receiving the information I gave the test but in which I was stated to be absent.

(c) On 27 August 2002 test was taken by Major Nasir Hussain in which I was stated to be absent. I had gone on GCM duty and I was not told about the test.

(d) On 10 Feb 2003 Capt R K Gurang, Inspector of Army Band Western Command took the test. At that time I had gone to Panchmarhi for attending the course.

(e) On 13 April no test was held by the Commandant.

(f) On 19th Jul 2003 the test was taken by the Commandant and at that time I was present. Nb Sub A.K. Barua Sahad told that this boy has not done the course therefore the Commandant did not listen any music from me.

(g) The test which is written on 8 Aug 2003, is totally wrong. I had come back on 1 April 2003 because I was out of the band for one year, therefore I went to the Course and the D.M. Sir took my test. I was week therefore I was sent back. I therefore request that I will not repeat such mistake again and will take full interest in my work."

6. A reading of the aforesaid shows that the petitioner, in fact,

disputed the very basis of the show cause notice as it was

his plea that exams were not held or he was not asked to

attend the exams while he has been shown as having

failed. This resulted in an inquiry being held which found

merit in the plea of the petitioner and the proceedings

against the petitioner were dropped in pursuance to the

show cause notice. We must observe at this stage that it is

strange that no action was taken against the persons who

had issued a show cause notice based on false averments

though they had knowledge to the contrary.

7. The travails of the petitioner did not end at this since the

petitioner was sent to attend Young Bandsman Course at

Panchmarhi from 6.9.2004 to 9.7.2005 when no progress

was shown and the petitioner was shown as having failed in

the course.

8. It may be noticed that a show cause notice dated

24.11.2003 had been issued to the petitioner after he had

attended the course at Panchmarhi from December 2002 to

April 2003. The said show cause notice is as under:

"1. I have observed the following lapses on your part on perusal of proceedings of the court of Inquiry:-

(a) You were RTU from YB-23 Course in Apr 2003, due lack of musical aptitude and as you did not show any interest in the course.

(b) You have no acquired basic skills, even after having been afforded ample opportunity and time, having served in the Band pl for seven long yrs now you have poor performance is the result of your lack of interest in your trade and your negative attitude towards it.

2. It appears to me, from the available evidence, that you have proved yourself undesirable for retention in service. I afford you an opportunity to explain your conduct as to why you should not be discharged from service under the provisions of para 2 (a) of Army Headquarters letter no.A/13210/152/AG/PS2 (c) dt 28 Dec 88 and 13 (3) III (v) of Army Rules 1954.

3. You should submit your reply to this show cause noticed by 30 Nov 2003 failing which it shall be assumed that you have no grounds to urge against the proposed action and the said action shall be proceeded with.

4. Relevant extracts from the proceedings of the court of Inquiry are enclosed for your perusal please."

9. A perusal of the aforesaid show cause notice shows that the

subject matter of the same is the performance of the

petitioner prior to the issuance of the show cause notice

dated 29.7.2003 which contains false allegations against

the petitioner and thus, the same could not have formed

the basis of any disciplinary proceedings. The petitioner

having failed in the examination as per the result declared

on 6.10.2005 was never issued a show cause notice. The

respondents without issuing a show cause notice and

relying on the earlier show cause notice of 24.11.2003

passed the impugned dismissal order of 17.11.2005 in the

following terms:

"1. I have considered the reply to the show cause notice submitted by Number 2891533F Lance Naik (Musician) Devi Singh of the Rajputana Rifles Regimental Centre.

2. I have concluded on the basis of previous enquiries that even after nine years in the Band Platoon you have not acquired the skills required of a musician and have twice not made the grade in the Young Bandsmen Course at Army Education College & Centre, Panchmarhi (MP) in April 2003 and July 2005, thus you have proved himself undesirable for retention in service.

3. I, therefore, direct that under the provisions of Army Rule 13 (3) III (v) of 1954 and Army Headquarters letter Number A 1321/159/AG/PS2 (c) dated 28 December 1988, Number 2891533F Lance Naik (Musician) Devi Singh of The Rajputana Rifles

Regimental Centre be discharged from service this 17th day of November, 2005."

10. It is the aforesaid decision which is sought to be challenged

by the petitioner.

11. Learned counsel for the petitioner inter alia has raised the

plea that the petitioner was being detailed for jobs other

than for the trade for which he was recruited and thereafter

being penalized for not performing up to the mark. A

further plea raised by learned counsel for the petitioner is

that there was no show cause notice issued prior to the

discharge of the petitioner. Learned counsel has also

emphasized that the own policy of the respondents dated

28.12.1988 deals with the procedure for the removal of

undesirable and inefficient JCOs, WOs and ORs, which

contains the following stipulation in para 3:

"JCO's, WOs and OR WHO HAVE PROVED INEFFICIENT

3 (a) Before recommending or sanctioning discharge, the following points must be considered:-

(i) If lack of training is the cause of his inefficiency, arrangements will be made for his further training.

(ii) If an individual has become unsuitable in his arm/services through no fault of his own, he will be recommended for suitable extra-regimental employment."

12. We have heard learned counsels for the parties and

perused the record.

13. It is quite apparent that the show cause notice dated

29.7.2003 was a mindless exercise by the concerned

officer. The petitioner was shown as unfit, absent, failed

when he had actually never appeared for the examination

on the said dates. The inquiries held by the respondents

found force in the plea of the petitioner. The respondents,

thus, dropped the proceedings in pursuance to the said

show cause notice without taking any action against the

persons responsible for such mindless show cause notice

having been sent.

14. The second show cause notice sent by the respondents

dated 24.11.2003 refers to the conduct of the petitioner in

sub-para 1 (b) which actually is the subject matter of show

cause notice dated 29.7.2003 and has been found to be

false. Not only that even the facts of sub-para 1 (a) existed

prior to the show cause notice dated 29.7.2003. The show

cause notice dated 24.11.2003 thus could not have been

relied upon. Despite this fact the impugned order has been

passed relying on the said show cause notice. No show

cause notice was sent to the petitioner after the petitioner

is alleged to have failed in the examination for which

results were declared on 6.10.2005 and the action under

Rule 13 of the Army Rules could not have been so taken

without a show cause notice which is an undisputed fact.

This is a clear stipulation of Army Rule 13 (3) III (v). Not

only that there has been no examination of the case of the

petitioner in terms of the own policy of the respondents

dated 28.12.1988 for detailing the petitioner for some other

trade.

15. We are, thus, of the considered view that the impugned

order of dismissal dated 17.11.2005 cannot be sustained

and consequently a writ of mandamus is issued quashing

the said order and restoring the petitioner to service with

all consequential benefits including of pay and allowances

and continuity of service.

16. The respondents are at liberty to hold a fresh examination

to determine the suitability of the petitioner for the trade of

a musician and in case the petitioner does not succeed, his

case can be examined for a remustered trade.

17. The petition is allowed in the aforesaid terms leaving the

parties to bear their own costs.

SANJAY KISHAN KAUL, J.

SEPTEMBER 19, 2008 MOOL CHAND GARG, J. b'nesh