1. This case was originally filed before the Honble High Court of Delhi as WP(C) No.5337 of 1999. The Delhi High Court has dismissed the same case on 18.03.2008 for lack of jurisdiction with liberty to the applicant to file the petition in a court having jurisdiction over the matter. Aggrieved by the said order, the applicant filed a SLP No.4858/2009 before the Honble Supreme Court. The Honble Apex Court disposed off the SLP on 13.07.2010 and remanded the case to this Tribunal for further adjudication on merits.
2. Vide this petition, the applicant has prayed for quashing of the discharge order dated 31.05.1996 alleging that it has been passed before fulfilling the conditions for minimum period of service for pension. He has further prayed that he be re-instated immediately with all consequential benefits which include back-wages, seniority, promotion, increments etc.
3. Brief facts of the case are that the applicant was enrolled in the Army as a Sepoy in the Corps of EME on 15.07.1983 and in due course promoted to the rank of paid acting Naik in 1988. He was discharged from the Army on 01.06.1996 under Army Rule 13(3)(III)(v) being âservice no longer requiredâ after having completed about 13 years of service. The applicant is alleged to have been discharged in absentia as he was admitted in the Hospital on 31.05.1996. This discharge was ordered prematurely as the applicant had not completed 15 years of service which is minimum qualifying service for earning pension and which is alleged to be against the policy instructions contained AHQ Policy letter of 28.12.1988 (Annexure P-1).
4. It is contended that the applicant had made several representations to the concerned authorities to reconsider the matter but all these were rejected (Annexure P-2).
5. It is alleged that the applicant awarded four red ink entries during his service as became evident in the show cause notice that was issued to him by the respondents. However, it is contended that the details of the said red ink entries were not given. The show cause notice dated 20.11.1991 (Annexure P-3) said that he had committed an offence on 18.10.1990 under Section 39(b) of the Army Act and he was awarded 28 days of RI. At the same time, in another show cause notice of 24/25.03.1994 (Annexure P-4) for the same offence it was shown that he has got 14 days RI and 14 days detention. Whereas in the show cause notice dated 15.04.1996 (Annexure P-5) for the same charge, the punishment awarded to is shown as 28 days RI and 14 days detention in military custody. It is, therefore, not understandable as to which punishment is in order nor is it possible to find out the correctness in the absence of details of the report which are only in the possession of the respondents.
6. It is alleged that while the applicant was posted at Ambala, he earned four red ink entries. Consequently, he was served with a notice on 20.11.1991 (Annexure P-3). This show cause notice was replied to by the applicant and vide reply he had also explained to the circumstances to the Officiating CO regarding the personal problems being faced by the applicant.
7. While the applicant was posted at 7003, Combined Workshop EME, during March 1994, due to unforeseen circumstances beyond his control, the applicant remained on leave but was charged under Section 39(d) of the Army Act of being absent without leave for which the applicant was awarded 7 days RI on 25.3.1994. Consequently, another show cause notice was issued. The applicant apprehends that thereafter the respondent No.5 started disliking the applicant and he became biased and he initiated a case for discharge under Army Rule 13(3)(III)(v) for which a show cause notice was served on 15.4.1996 (Annexure P-5) signed by the Officiating Brig. on the same grounds as given in the show cause notice of 24/25.3.1994 (Annexure P-4). The applicant submitted a detailed explanation vide his reply dated 28.4.1996 (Annexure P-5).
8. On 28.5.1996 the applicant suffered a head injury during the physical training parade in unit. He was evacuated to Military Hospital, Ranga Pahar, Nagaland in an unconscious state and was diagnosed a case of CNS (INV) Solitary Seizure. The applicant remained in Hospital from 28.5.1996 to 31.5.1996 and was referred to the Command Hospital, Calcutta for further investigation and opinion of the Neuro Physician. The applicant was admitted in Calcutta Command Hospital on 04.06.1996 and remained there upto 10.06.1996, thereafter, he was discharged from Hospital and transferred back to 165 MH for further disposal. The applicant was finally discharged from 165 MH on 20.6.1996 to report back to the unit after being placed in LMC âCEE temporary for 6 months w.e.f. 19.6.1996 (Annexure P-6).
9. It is further alleged that when the applicant was admitted in the Hospital and undergoing treatment, Respondent No.5 visited the applicant in the Hospital i.e. before he was transferred to Command Hospital and consoled him and also gave him an assurance that he would ensure that the applicant would complete his minimum pensionable service and he obtained the signatures of the applicant on some printed forms which he said was necessary for enabling him to continue in service. The applicant was diagnosed as a case of âtonic clinic seizureâ and was under lot of mental tension and pressure and thus the applicant signed all the forms as advised by respondent No.5.
10. On discharge from the MH, when the applicant reported to the unit on 20.6.1996, the applicant was not allowed to join the unit on the plea that the applicant was locally discharged from service on 31.5.1996 in absentia and was struck off the strength of his unit. Several attempts made by the applicant to meet the superior officers including the respondent No.5 were of no avail. The applicant was able to contact the respondent No.4 at Secundarabad and find out the details about his discharge and reasons for discharge. He was not given any papers for his discharge. The applicant made a representation to respondent No.3 which was rejected vide their letter of 27.6.1996 (Annexure P-2). The applicant alleged that several other personnel in the same unit have more than four red ink entries were not given show cause notice nor were they discharged.
11. Learned counsel for the applicant stated that on his behalf the case was first filed before the Andhra High Court where it was dismissed on 10.12.1996 for lack of jurisdiction (Annexure P-7). Subsequently, the applicant filed the WPC in Delhi High Court on 31.08.1999 which was again dismissed for want of jurisdiction on 18.03.2008. The SLP filed by the applicant in the Honble Supreme Court was accepted vide order dated 13.07.2010 and the case was transferred to this Tribunal for hearing on 02.08.2010.
12. Learned counsel for the applicant argued that the applicant was given several show cause notices as enumerated above. The show cause notices were not given by the competent authority. In all the cases, the CO or the Officiating CO had given the show cause notices among them one was issued in 1996 which was signed by Officiating Brig. Adm. Since no action was taken on the earlier show cause notices which were also replied to by the applicant, the applicant always considered that he has been exonerated of the misdemeanour. As such, the show cause notice of 1996 came as a shock to him.
13. Learned counsel for the applicant also argued that he could not have been discharged on 31.5.1996 since he was in the hospital and was in fact transferred to the Command Hospital where he reported on 04.06.1996. He also argued that respondent No.5 was biased and the punishment awarded to him on 25.3.1994 based on which the last show cause notice was issued, in that event the allegation was that he was late by 30 minutes.
14. Learned counsel for the applicant further argued that the applicant had completed about 13 years and 09 days of qualifying service. As such, it was only a matter of couple of months in which he would have been entitled to pension. Respondent No.5 who was biased against him did not permit him to complete his pensionable service. Under the said policy of 28.12.1988, the fact of long service was to be considered before passing impugned order, but that was not taken into account.
15. Learned counsel for the applicant also argued that as per policy letter of 28.12.1988, it is mandated that a preliminary inquiry before recommending the discharge of dismissal of an individual should be conducted. The inquiry should be impartial (not necessarily a COI) has to be made into the allegations against him and that he has had adequate opportunity of putting up his defense or explanation. This was not done in the present case. Though, it was evident that the applicant was about to complete his pensionable service. Thus, it was alleged that the impugned order was bad in law and was liable to be quashed.
16. In support of his contentions, ld. Counsel for the applicant cited 100 (2002) DLT 705(DB) Surinder Singh Sihag Vs UOI and Ors., wherein the Honble Court has held that âDischarge without following procedure prescribed therefor, cannot be sustained. 14 years of service rendered by petitioner entitles him to receive pension. Writ petition cannot be dismissed only on ground of non-receipt of notice which is otherwise received by petitioner. Such conduct on part of petitioner would not deprive him from obtaining discretionary relief.â
17. Learned counsel for the applicant further cited (1993) 3 SCC 259 in the matter of D.K. Yadav Vs J.M.A. Industries Ltd., wherein the Honble Apex Court has held that âbefore terminating the services of an employee, the principles of natural justice are required to be complied with.â
18. He also cited (1991 Supp 1) SCC 600 in the matter of Delhi Transport Corpn., Vs D.T.C. Mazdoor Congress wherein their Lordships have held that âAll matters relating to employment include the right to continue in service till the employee reaches superannuation or until his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of Article 309 of the Constitution or the statutory provisions or the rules, regulations or instructions having statutory flavour.â
19. Learned counsel for the respondents stated that if after the issuance of show cause notice no action was followed, it does not mean that his offences have been condoned. Besides, in this case the applicant has not challenged the validity of any of the punishments awarded to him except for the punishment given to him on 25.03.1994. Further, he argued that the applicant has made allegations against the respondent No.5 but the applicant has failed to substantiate any of the allegations to say that actions of respondent No.5 were malafide. Learned counsel further argued that the applicant has in his OA given the names of four other individuals who were similarly placed in terms of red ink entries but were permitted to carry on in service. But he has not made any of them as respondents and case of each individual is based on different situations, mere on this count he is not entitled to any relief.
20. Learned counsel for the respondents further stated that the applicant had been receiving notices which could be also termed as warnings since 1994. Impugned discharge order is not passed on those notices. In all cases it was the CO who was issuing the notices. Since no follow up action was taken it did not mean that case has been closed or dropped. In fact the letters were in the nature of warning to the individual for not to repeat the offence and for improving himself. In 1996 when it was found that the applicant is a habitual offender, he was served the notice on 15.4.1996 (Annexure P-5) by Officiating Brig. (Adm.) on behalf of the GOC, since 7003, Combined Workshop EME, came directly under the 3 Corps, the GOC was competent to issue the notice. This notice was replied to by the applicant on 28.04.1996 (Annexure P-5). In reply he had not disputed the punishments awarded to him. Therefore, there was no need of any further enquiry under the said policy and he was a habitual offender as is evident from the past punishments. He also relied on the judgment passed by the Honble Delhi High Court in the case of Pratap Singh Vs Chief of Army Staff and others (LPA No.136/2003 decided on 03.06.2011).
21. Learned counsel for the respondents drew our attention to the contents of the reply to show cause notice to say that there was not even a whisper of his signatures having been obtained fraudulently by the CO while he was admitted in the Hospital. His averment to this effect in the OA points towards improvement in evidence.
22. Learned counsel for the respondents further contended that having considered all the facts placed before the Competent Authority of the GOC, the applicant was discharged. The details of the punishments awarded to the applicant by the different officers on different occasions during his service are as under: -
| Sl. No. | Date of Award | Punishment awarded | Under AA Sec |
| 1. | 26.06.1985 | 14 days RI in military custody | 54(b) |
| 2. | 24.2.1986 | 15 days confinement to lines | 52(a) |
| 3. | 23.01.1990 | Deprived of Acting rank of Naik | 63 |
| 4. | 19.07.1990 | 07 days detention | 39(b) |
| 5. | 14.11.1990 | 28 days RI and 14 days detention in military custody | 39(a) |
| 6. | 05.04.1994 | 07 days RI in military custody | 39(d) |
24. He further drew our attention to the disposal of appeal dated 14.06.1996 filed by the applicant, which was disposed off by the GOC, 3 Corps after due consideration on 27.06.1996, shows that the case for discharge was approved by the Competent Authority.
25. Learned counsel for the respondents further cited the recent judgment given by Honble Delhi High Court in the LPA No.136/2003 decided on 03.06.2011 in the matter of âPratap Singh Vs Chief of Army Staff and Othersâ dealing with the scope of further inquiry under the said policy and power of discharge, the Honble High Court has observed that âwe see no scope for any inquiry to be conducted where a person is being discharged from service with reference to his past service record.â The Court has further observed that âunder Rule 13(3) item III(iv) the Commanding Officer has to exercise the power upon being satisfied that the desirability to retain the person concerned on the strength of the Unit is no longer there. The objective material obviously has to be service record. It is a power akin to the power exercised in civil service under Rule 56(j) of the fundamental rules.â
26. As such, learned counsel for the respondents argued that fair play has been ensured and the applicant was given a fair chance to improve his conduct which he did not do so despite repeated warnings/show cause notice to him. Thereafter, before discharge show cause notice was issued by the competent authority i.e. Brig. Admn. and after considering his reply the applicant was discharged.
27. Having heard learned counsel for both the parties at length, having examined the documents in original and perused the judgments cited on behalf of the parties. We have considered the contentions raised by the learned counsel for the applicant that the show cause notice dated 20.11.1991 (Annexure P-3) and the show cause dated 24/25 March, 1994 (Annexure P-4) issued by C.O. or Officiating C.O. that they were not competent to issue the said notice. But, from the perusal of the proceedings it is revealed that discharge order was not passed on these notices, they are more or less can be treated as warning letter, in the show cause notice dated 24/25 March, 1994 (Annexure P-4) in para 3 it has been mentioned while narrating the punishments given earlier that why the action for discharge should not be initiated. Para 3 says âplease show cause as to why action should not be initiated to discharge you from Army under the provisions of Army Rule 13 being your services no longer required.â Thus, the contentions raised by the applicant in this regard are not sustainable. Learned counsel for the applicant also agitated that the show cause notice issued on 15.04.1996 (Annexure P-5) was also issued by Officiating Brigadier Administration for GOC and he was also not competent to issue notice. At that time, the applicant was under 7003, Combined Workshop EME and was directly under these 3 Corps., therefore, GOC was competent to issue notice. This fact was placed by the respondents, but has not been disputed by the applicant. Thus, the contention raised, in this respect, also is not sustainable.
28. We have also considered the contention that after submitting reply to the earlier show cause notice, no further action was initiated, therefore, the applicant was under the impression that proceeding has been dropped/exonerated, as no further action was initiated in that matter. This contention is not having any force of law. The same contention was raised by the concerned petitioner in case of Pratap Singh (supra), where considering the reply once matter was dropped thereafter again petitioner committed the offence and on that basis fresh show cause notice was issued, including earlier punishments and the petitioner was discharged and overruling the contention of the petitioner discharge order was maintained by the Honble Delhi High Court.
29. During the course of arguments, much emphasis was given that before issuing notice no preliminary inquiry was conducted as provided in concerned policy of 28.12.1988 (Annexure P-1), but from the perusal of record it is revealed that show cause notice was issued on the basis of previous record and for that the applicant neither has disputed nor challenged the earlier punishments. Therefore, while issuing notice, it is deemed that the concerned authority has applied its mind. Learned counsel for the applicant, in this respect, has cited the judgment of Surinder Singh Sihag (Supra). In that case the very receipt of notice as well as on other counts the matter was disputed, but in this case the factum of punishments had not been disputed in replies to the earlier show cause notices as well as the last notice on 15.04.1996 (Annexure P-5). In this respect, we have also perused the last show cause notice dated 15.04.1996 on which discharge order was passed and details of the previous punishments have been given along with opportunity to show cause.
30. We have also seen the reply of the applicant to show cause notice dated 15.04.1996 in which nowhere he had agitated the punishments given earlier. For ready reference the true English translation of the reply filed by the applicant on 28.04.1996 is reproduced hereunder:
âHeadquarters 3 Corps A Branch
Through Proper Channel
From:
No.14557335 P
Rank â Sepoy (Rec. Mech.)
Name â A.B. Singh
Unit 7003 Joint Workshop E.M.E.
C/o 99 A.P.O.
Sub: Clarification and request/reply to show cause notice issued by HQ 3 Corps vide letter No.16026/1/A2 dt. 15.4.196.
Sir,
1) I No.14557335 P Sep. Rec. Mech. A.B. Singh beg to submit the following for your consideration and necessary action please.
a) That I right from the beginning have been mentally depressed and under tension due to my domestic problems.
b) That my father due to the accident remained mentally and physically depressed who is presently in a stable state and is feeling all rights.
c) That during the year 1989, my wife during the second pregnancy remained very seriously ill and communication by way of letters and telegrams were being addressed to me but those communications were concealed from me at the instance of superior officers. However, when my wife at the time of delivery expired and my infant child became orphan, I was informed about the receipt of aforesaid communications from my home i.e. letters and telegrams.
d) Due to the abovesaid facts and circumstances, my mental state was not stable as a result of which I committed few mistakes during my service period for which I feel very sorry and the inconvenience caused is highly regretted.
2. That now I am free from my domestic problems wherein after the second marriage, my infant child is being taken care of by my wife and now I am absolutely stable in my mental state. I hereby give an undertaking and assure you that in future I will not commit any mistake during my service period and that I will abide by the orders and remain in discipline and will be sincere and obedient to serve my country as also maintain the discipline of the uniform.
3. In view of the above, you are most respectfully requested to excuse all my previous mistakes and be kind enough to grant me one more opportunity to serve the organisation.
For the acts of kindness I shall be grateful to you.
Sd./-
No.14557335P A.B. Singh
Sepoy A.B. Singh
Sd. A.B. Singh
Dt. 28.4.96.
Sd./-
A.B. Singh
14557335â
31. The main object and aim behind the said inquiry is to find out the existence of the punishments, which has been not disputed by the applicant. Therefore, holding of inquiry was not necessary. It was also held not necessary by latter judgment of Honble Delhi High Court given in case of Pratap Singh (supra). In this reference, the relevant portion is reproduced hereunder:
â21. Inquiries have to be held if facts are in dispute or blameworthiness of a delinquent employee has to be ascertained.
22. We see no scope for any inquiry to be conducted where a person is being discharged from service with reference to his past service record.â
32. Thus, the contentions raised in this respect are not sustainable.
33. We have also considered that the applicant has stated to be served for a long time and at the time of discharging him the authority should also have considered this aspect, but from the perusal of record, it is revealed that the applicant was a habitual offender and he remained absent without leave for more than once. For that he had been penalised. Looking the necessity of high standard of discipline, in Army, this contention is not sustainable for interfering in the said impugned order.
34. As discussed above, we find that the applicant has not challenged any of the punishments given to him earlier, except he has alluded to the punishment awarded to him on 25.3.1994 for being 30 minutes late for parade. However, the allegation is only to the effect that the punishment has been in excess to the gravity of the offence. This contention does not hold water because if a person is absent from the place of duty where he has been appointed especially in an operational environment, which was the case, as 7003, Combined Workshop EME is in operational area, could lead to grave consequences. We are, thus, not in a position to sit over the judgment for the quantum of punishment given for this offence. This punishment is also of 1994 and the show cause notice was issued, thereafter, in 1996. Therefore, the allegations are also not sustainable, at this stage.
35. Since the applicant has not challenged any of the punishments given to him earlier, he was in any case in the zone of being declared habitual offender. As such, the applicant was correctly issued the show cause notice dated 15.04.1996 (Annexure P-5), he filed reply thereto and after considering his reply the impugned order had been passed. Thus, the proceedings are as per the rules and principles of natural justice have been maintained. The contentions raised by the applicant are not sustainable and the judgments cited by him do not help his case. The issuance of show cause notice was approved by the Competent Authority and the decision based on the response to the show cause notice was also taken by the Competent Authority.
36. In view of the foregoing, we are of the opinion that the case does not merit intervention. The TA is hereby dismissed. No order as to costs.