1. Petitioner vide this petition has prayed that impugned orders dated 19.07.2010, 03.06.2009 and 20.04.2010 be quashed and respondents be directed to reinstate him with all consequential benefits.
2. Petitioner was enrolled in the Regiment of Artillery on 10.06.1997 and allotted the trade of Technical Assistant. After successful completion of training, he was posted to 197 Field Regiment (now 197 Medium Regiment) in October 1998. During his service of 12 years, he worked with complete dedication and unflinching loyalty to the organization.
3. On 02.02.2008, petitioner was given a Show Cause Notice by his Commanding Officer (CO) Col Pankaj Dimri. Petitioner gave reply to the same on 09.02.2008 giving justification of each alleged misconduct. No further action in the matter was initiated by his CO, therefore, it was presumed that reply of the petitioner was accepted and the alleged misconduct was condoned by the CO. After 13 months of the above said incident, petitioner was issued another Show Cause Notice by the CO on 02.03.2009. Petitioner forwarded his reply to the said Show Cause Notice and stated the same reasons as he had stated in his earlier reply dated 09.02.2008. The reply was not found satisfactory and ultimately a discharge order dated 03.06.2009 was issued. Thereafter petitioner made necessary representations and ultimately filed the present petition before this Tribunal seeking aforesaid reliefs.
4. A reply has been filed by the respondents and they have pointed out in their reply that petitioner had incurred six red ink entries. He has been awarded various punishments during his entire service which read as under;
| S. No. | Date of Offence | AA Sec | Punishment awarded with date |
| (a) | 23 Nov 2001 | 39(a) | Seven days RI on 08 Dec 2001 |
| (b) | 18 Feb 2003 | 39(a) | 14 days RI on 21 Mar 2003 |
| (c) | 28 Mar 2005 | 39(b) | Seven days pay fine on 08 Apr 2005 |
| (d) | 14 Apr 2005 | 39(a)and 54 (b) | 28 days RI on 16 Jul 05 |
| (e) | 27 Feb 2007 | 48 | Severe Reprimand on 07 Apr 2007 |
| (f) | 01 Jul 2007 | 39(b) | Severe Reprimand on 22 Aug 2007 |
| (g) | 13 Nov 2008 15 Nov 2008 | 39(a) 48 | Severe Reprimand and Seven days pay fine on 24 Nov 2008 |
| (h) | 11 Feb 2009 | 48 | Severe Reprimand and 14 days pay fine on 12 Feb 2009 |
| (j) | 29 Mar 2009 | 39(a) | Severe Reprimand on 14 May 2009 |
6. Thereafter, petitioner earned two more red ink entries. The CO issued another show cause notice to the petitioner on 02.03.2009 on the direction of the Cdr 12 Corps Arty Bde vide his direction dated 18.02.2009. Again, the reply of the petitioner of the show cause notice dated 02.03.2009 was forwarded to HQ 12 Corps Arty Bde for direction of the Cdr. Brig JCG Bagool, Cdr 12 Corps Arty Bde had directed on 16.05.2009 that âinspite of repeated counselling and warnings, the applicant had failed to improve his conduct, hence his service is no longer requiredâ. On receipt of the direction from Cdr., unit approached the petitioner to get his discharge documents but till 03.06.2009, he had not produced his bank details even after he had sent on leave to obtain the necessary documents from his home town. In this background, order of discharge dated 03.06.2009 was passed by the Cdr.
7. We have heard both the parties and gone through the record.
8. Learned counsel for the petitioner argued that as per Army Rule 13 (III) (V), the show cause notice should have been issued by the Brig Cdr but in the present case it has been issued by the CO who has no jurisdiction to issue the same and it is only the Brig Cdr. who can issue the show cause notice.Therefore, issuance of show cause notice is prima facie illegal and in violation of Army Rule 13 (III) (V). Learned counsel for the petitioner in this respect relied on a decision of the Honble Supreme Court given in the case of Dhanajaya reddy Vs. State of Karnataka (2001) 4 SCC 9.
9. It is true that when a Statute requires that a thing has to be done in a particular manner then it has to be done in that particular manner alone. So far as this legal preposition is concerned, it is beyond doubt. But in the present case, we have perused the communication sent by the Brig. JCG Bagool, Cdr., 12 Corps Arty Bde dated 18.02.2009 wherein he has sanctioned the issuance of show cause notice to the petitioner. We have also perused the communication dated 16.05.2009 of the Brig. Cdr sanctioning the discharge of the petitioner wherein he has mentioned that âon scrutiny of discipline profile of No. 15132749Y Naik (Technical Assistant) Sita Ram of 197 Medium Regiment, it is evident that he has failed to improve his conduct inspite of repeated counselling and warnings, hence his services are no longer required by the organization. In view of above, sanction is hereby accorded to discharge No. 15132749Y Naik (Technical Assistant) Sita Ram of 197 Medium Regiment from the service under the provision of Army Rule 13 III (V) as his services are no longer required â . A copy of the said sanction letter dated 16.05.2009 issued by the Brig. Cdr. has been placed by the respondents on record as Annexure R-6.
10. In view of above, we are of the opinion that it was the Brig Cdr who sanctioned the issuance of show cause notice to the petitioner. He also issued the discharge order dated 16.05.2009 discharging the services of the petitioner under the provision of Army Rule 13 III (V). The CO in the present case only did the ministerial act in issuing of show cause notice to the petitioner which was duly sanctioned by the Brig. Cdr. The CO forwarded the reply of the show cause notice to the Brig. Cdr and Brig. Cdr. after scrutiny of discipline profile of the petitioner, issued the discharge order dated 16.05.2009 under the provision of Army Rule 13 (III) (V). Therefore, we are satisfied that it was Brig Cdr who sanctioned issuance of show cause notice to the petitioner and it was only communicated by the CO which was a ministerial act and finally the discharge order was passed by the Brig Cdr. on 16.05.2009.
11. In these circumstances, we do not find any merit in the petition. The same is accordingly dismissed. No order as to cost.