THOMAS MATHEW, MEMBER (A).
The petitioner is an ex-serviceman who was discharged from the Army being undesirable under Army Rule 13(iii)(v) with effect from 4th December, 1991. Aggrieved by the action of the Army, the petitioner requested for a denovo enquiry, deletion of 'non-ex-serviceman' entry from the discharge book, permission to serve till he qualify for pension and in the interim be reinstated pending final disposal of the O.P.
2. The petitioner was enrolled in the regiment of artillery as a Sepoy at Nasik Road Camp on 6th June, 1980. On completion of his military training, he was posted to 68 Field Regiment at Assam. Since then he has served with this regiment at Coimbatore, Sri Lanka, Rajasthan and Devlali till his discharge on 4th December, 1991. During his service of 11 years and 6 months, he was punished five times for different offences and consequently five red ink entries were made in his service records.
3. The petitioner was served with a show cause notice (SCN) on 31st October, 1991 as to why he should not be discharged from service being a habitual offender and an undesirable/ inefficient soldier. In his reply on 14th November, 1991, the petitioner alleged harassment by superiors which led to all the punishments he received, he pleaded that he be permitted to complete his minimum pensionable service of 15 years and that in future will not do any such acts of willful defiance of military authority. His reply being unsatisfactory, the petitioner was discharged from service on 4th December, 1991.
4. The petitioner has alleged in the petition submitted on 12th January, 1995 that he had not committed any of the offences as given in the SCN and all the charges were false and fabricated. He was not court martialled or given an opportunity to defend his case. The petitioner also alleged that the 5th punishment was awarded in his absence from the unit location on 7th October, 1991. He had proceeded on leave on 5th October, 1991, a copy of the leave certificate was produced as an exhibit
5. The respondents have maintained that the petitioner had on five occasions committed offences of serious nature and considering the need to uphold the discipline and ethos of the army, the petitioner was discharged from service as per order in vogue.
6. According to the respondents, the petitioner committed his first offence on 11th February, 1982 during his recruit training when he absented himself without leave. He was proceeded under Section 39(a) of the Army Act for being absent without leave. The petitioner had pleaded guilty for this charge and was awarded seven days rigorous imprisonment.
7. On 5th May, 1985, the petitioner committed two offences, i.e. going out of the unit area without a pass and then consuming liquor from a civil liquor shop. Action under Sections 39(f) and 42(c) was initiated against him. The petitioner pleaded guilty to the charge and was awarded 28 days rigorous imprisonment and 14 days detention.
8. On 26th August, 1986, the petitioner committed an offence by visiting the family quarters of another Soldier who was away on night training. He was proceeded under Section 63 of the Army Act for violation of good order and military discipline. Although the petitioner pleaded not guilty, the offence of the petitioner was proved beyond doubt and he was awarded 'severe reprimand'.
9. On 13th April, 1988, the petitioner was charged under Section 63 of the Army Act for violation of good order and military discipline for which he pleaded guilty and was awarded 'severe reprimand'.
10. On 7th October, 1991, the petitioner was charged under Section 40(c) of the Army Act for using insubordinate language against his superior officer. He pleaded guilty and was punished by depriving of the appointment of L/NK.
11. The respondents have averred that as per service records the petitioner was granted 20 days leave from 8th October, 1991 to 27th October, 1991 and not from 7th October, 1991 to 26th October, 1991 as claimed by the petitioner. The veracity of the leave certificate produced by the petitioner as an exhibit (Ext.P5) has been questioned by the respondents.
12. It was also contended that during the short span of 11 years, the petitioner had earned five red-ink entry punishments for various offences, most of them very serious. The petitioner being a habitual offender, his retention in service was not considered desirable by the Commanding Officer. Therefore, within the provisions of the existing rules, the petitioner was discharged from service under Army Rule 13(iii)(v) with the sanction of the competent authority. The petitioner had been given adequate opportunity to explain as to why he should be retained in service. In his reply, his main plea was to be permitted to complete minimum pensionable service which was not considered prudent in the larger interest of the army by the competent authority.
13. The learned counsel for the petitioner during hearing had highlighted the following issues:-
(a) The 5th offence is alleged to have been committed on 7th October, 1991 when the petitioner was away from the unit. Copy of the leave certificate produced by the petitioner shows that he was on leave from 5th October, 1991.
(b) As per the Army Headquarter letter No.13210/159/AG/PSZ(C) dated 28th December, 1988, produced as exhibit by the respondents, the petitioner should have been issued a second show cause notice (SCN) which was not done.
(c) The Army Headquarter letter does not make it mandatory for the Commanding Officer to discharge an individual with five red-ink entries instead he could also have been transferred.
(d) No enquiry was carried out by the Commanding Officer or any copy of the same given to the petitioner. Orders of the competent authority has not been given to the petitioner.
(e) In a similar case in Ex Sepoy Sube Singh v. Union of India and others, the Hon'ble Delhi High Court in W.P.(C) No.4656 of 2003 had given relief to the petitioner and had granted service pension without reinstatement in service.
14. The Tribunal asked the respondents to produce original file of the petitioner which was available with the Army authorities. The same was produced and perused by us.
15. The issues to be considered and decided in this application are as follows:-
(a) Whether the petitioner deserved to be discharged for the offences committed by him?
(b) Whether the 5th charge and punishment was carried out in his absence?
(c) Whether proper procedure was followed by the Commanding Officer and the competent authority in the process of discharge of the petitioner.
16. It is accepted that the petitioner has earned five red-ink entries during his service in the Army. The petitioner committed his first offence as a young recruit with less than two years service while undergoing recruit training when he absented himself without leave for five days as per service records. He is supposed to have gone to attend his ailing father in Kerala. It is very difficult to believe that from Nasik he travelled to Kerala, attended to his father and reached back within five days. It is surprising that the army authorities took a lenient view for a very serious offence at the beginning of his service. He has pleaded guilty for four out of the five offences and in the 5th one, the evidence has proved beyond doubt his culpability. This particular charge, i.e. visiting the family quarters of another soldier in the night when that soldier was away on training was an offence which would have been sufficient to court martial the individual. But, a lenient view was taken by the Commanding Officer. He was reprimanded possibly to give him one more chance to improve his discipline and behaviour. The 5th offence of using insubordinate language to a superior was the proverbial straw that broke the back of the camel and which led to the decision by the Commanding Officer to explore the possibility of discharging the petitioner as an undesirable character. At no stage in his 11 years service has the petitioner ever challenged these awards or sought redressal for the same.
17. The petitioner has claimed that he proceeded on leave on 5th October, 1991 and was not present in the regiment when the alleged offence was committed. A copy of the leave certificate showing his leave from 5th October, 1991 to 26th October,1991 has been produced as an exhibit(Ext.P5). The respondents have questioned the veracity of the document and has asserted that the service records show that the leave commenced with effect from 8th October, 1991 and not 5th October, 1991. The petitioner could have strengthened his claim of being away from 5th October, 1991 if he had produced his railway ticket or warrant counter foil showing that he left the duty station on 5th October, 1991. As per the offence report in the petitioner's file, he was charged with using insubordinate language to his superior officer on 5th October, 1991 at about 23.00 hours in the unit area, witnessed by Subedar Major.P.Velumurugan. The petitioner had pleaded guilty and he was punished on 7th October, 1991. So, it is evident that the individual was present in the unit till 7th October, 1991 and he committed the offence and was punished in the unit before he left on leave.
18. The prescribed procedure on discharge of an undesirable/inefficient soldier as per Army HQ letter No.13210/159/AG/PSZ(C) dated 28th December, 1988 do not indicate the requirement of a second show cause notice as stated by the learned counsel for the petitioner. The petitioner was served with a show cause notice, his reply considered and then the competent authority discharged him from service. The learned counsel had also stated that the petitioner had not been given any proceedings of the enquiry before he was discharged. At this belated stage, almost 19 years after the incident, it would be difficult to ascertain whether a copy of the enquiry report was given to the petitioner or not. It is seen from the Roll of Discharge (IAFY-1948A) prepared at the time of his discharge that the petitioner had even refused to sign it. This has been attested to by the Commanding Officer of the unit and countersigned by the Deputy Commandant and Chief Instructor of the School of Artillery. Further, for discharge of an undesirable soldier under Army Rule 13 (iii) (v) read along with the Army HQ letter referred earlier in this paragraph, there is no provision for a separate court martial as averred by the learned counsel for the petitioner. There is also no scope of a de novo enquiry when a soldier is discharged as undesirable under Army Rule 13(iii)(v).
19. What is relevant is the serious nature of allegation levelled against the petitioner which is that he had earned five red ink entries which makes him liable to be discharged as an undesirable soldier. This is well documented and accepted. There is no scope for the enquiry to establish anything other than the fact that the individual had committed these offences which is corroborated by the original documents produced by the respondents.
20. The learned counsel for the petitioner had raised another issue that reply to the show cause notice was given by the petitioner on 14th November, 1991 and the discharge was ordered on 16th November, 1991. The respondents had not considered the reply properly before deciding to discharge the petitioner. It is seen from the original documents produced by the respondents that the âRoll of soldier proposed to be dischargedâ IAF7- 1948(A) was initiated by the Commanding Officer on 16th November, 1991, i.e., two days after receiving the reply and the competent authority, the Deputy Commandant of the School of Artillery sanctioned the discharge on 2nd December, 1991. It is seen that the Commanding Officer and the Deputy Commandant of the School of Artillery had adequate time to consider the reply of the petitioner and apply their mind before ordering the discharge.
21. The petitioner had contended that he was denied an interview with the Commandant of the School of Artillery and also with the General Officer Commanding, Southern Command. The petitioner has not produced any rule or regulation by which an aggrieved PBOR discharged as an undesirable soldier has to be interviewed by every superior officer above his Commanding Officer. The petitioner has to avail departmental or legal remedies to redress his grievances in case his immediate superiors are not able to redress it. It is a fact that he was provided an interview with the Deputy Commandant of the School of Artillery, the immediate superior of his Commanding Officer before his discharge.
22. The petitioner had also prayed for the removal of 'non-exservicemen' entry in his service certificate. Department of Personnel and Training vide their letter No.36034/5/85 Estt.(SCT) dated 14th April, 1987 paragraph 2(d) has excluded those personnel who have been released by way of dismissal or discharge on account of misconduct or inefficiency from the definition of 'Ex-servicemen'. Hence, this entry cannot be removed from petitioner's service certificate.
23. The 68 field regiment in which the petitioner served throughout his career is an artillery regiment which is a combat unit and which fights in the forefront of the battle. Discipline and instant obedience to orders and comradarie are the bedrock of a successful fighting unit. Any laxity in discipline can affect the performance of the entire regiment in war and peace. The Commanding Officer has to reward the good performers and punish the offenders, and if even after adequate chances to reform and improve, a soldier continues in his unacceptable behaviour in the regiment, he has to be removed so that the morale and integrity of the unit is maintained. Looked from that angle, the action of the Commanding Officer of the 68 field regiment cannot be termed as unjust or illegal.
24. The Commanding Officer has the authority to discharge an undesirable/inefficient soldier with the approval of the competent authority who is the next superior officer, namely, Brigade Commander or Sub Area Commander of the rank of a Brigadier. The counsel for the respondents on instructions submitted that in the instant case, the 68 Field Regiment was deployed under the School of Artillery at Devlali. The competent authority, therefore, is the Deputy Commandant and Chief Instructor of the School of Artillery who is of the rank of a Major General, and he approved the discharge of the petitioner.
25. The petitioner commenced his career in the Army on the wrong foot, running away and thus being absent for five days from the recruit training institution. It is hard to imagine that in five days he could have reached his village in Kerala and reached back to Nasik. He repeated a similar offence when he was posted to his unit after training. In the unit, he committed the most unbecoming act of visiting the residence of a fellow soldier when he was away on night training. The final straw was his use of insubordinate language to a superior officer which is considered the ultimate breach of good order and military discipline in a combat unit. It is evident that over 11 years, his superiors have kept giving him chances to improve his general discipline and to be part of the family of the fighting unit; but he failed to reciprocate with his behaviour and general conduct. The offences committed by the petitioner were of serious and different in nature, varying from absence without leave, causing disturbances in barracks, unbecoming conduct and insubordination. It was not a case of repeating the same offence as in the case of Ex Sepoy Sube Singh v. Union of India and others (W.P..No.4656/2003 decided on 20.4.2007) referred to by the learned counsel for the petitioner. In that case, the individual repeated the same offence of being absent without leave to look after his ailing wife. His conduct in the unit otherwise was with dedication and it was his wife's continued illness and surgery for which when he was denied leave that he became absent repeatedly. There was adequate grounds to be lenient and accommodative in that case. In the instant case, the conduct of the petitioner over the years has clearly indicated an undesirable trait which would have sent a wrong message to other soldiers in the unit. Hence, there was no question of retaining the individual for another three and half years for him to complete his pensionable service or transferring him to another unit with such a track record. His discharge was the appropriate decision to uphold the discipline, morale, cohesion and motivation of the unit and the Commanding Officer has acted in the interest of the Army. We, therefore, hold that the action of the respondents in discharging the petitioner as undesirable from the Army under Army Rule 13(iii)(v) is legal and valid.
26. We do not find any reason to interfere with the actions of the respondents.
27. In the result, the Transferred Application is dismissed.
28. No costs.