Bharat Ram vs Union of India (UOI)

Swatanter Kumar, J.—I have heard learned counsel for the parties at some length.

During the course of hearing counsel for the. parties have produced copies of relevant record on which they rely for the purpose of making their submissions.

Suit for declaration was filed by Bharat Ram, present appellant, challenging that the order dated 28th of May, 1984 by which he has been discharged from service under item 13(v) of the Army Rules, 1954 was illegal and bad in law.

The appellant had joined the army on 11th of, January, 1972. During his career of service, till 10th of June, 1982, he had earned four red entries. Thereafter, inspite of having earned four red entries and having been provided adequate opportunity to improve himself, the appellant in fact became worse. A show cause notice was served upon him on 21st of May, 1984. In the reply to this notice, he admitted his mis-behaviour and was finally discharged on 28th of May, 1984 as already noticed.

The basic contention of learned counsel for the appellant is that he was promoted to the rank of Lance Dafedar on 29th of June 1983 and as such the four red entries in his service book would cease to have any consequence in regard to his continuation in service. He then contended that the learned Courts below have erred in coming to the concurrent finding of fact and conclusions holding that the order of discharge was not suffering from any error and was not liable to be set aside.

At the very out-set it will be appropriate to make a reference to the conclusions arrived at by the first Appellate Court while affirming the judgment and decree of the learned trial Court dated 17th of August, 1994:-

"After hearing counsel for the parties, I find that the facts of the case are not disputed by any party. It is not disputed that the plaintiff had earlier earned four red ink entries in his service record. The first entry was 25.2.1975 when the plaintiff was awarded 10 days detention for absenting without reason. On 2.9.1978, he was awarded 18 days R.I. for over-staying leave. On 25.2.1979, he was awarded 7 days R.I. for absenting without proper authority. On 1.6.1982, the plaintiff had violated "good and Military discipline" as he had left his rifle alongwith the vehicle during exercises unattended and he was frequenting a house of ill repute in the out of bound area. The plaintiff was allowed to stay in service inspite of all these entries vide order dated 11.1.1983 Exhibit P3. Vide Exhibit P2, order dated 24.7.1983, the plaintiff Was promoted and appointed as Acting Lance Dafedar with effect from 28.6.1983. According to the learned counsel for the respondent, this order was not an order of promotion but due to his length in service, he was allowed to draw the salary of Acting Lance Dafedar but otherwise, he was not promoted as such. The provision of Exhibit P2 shows that this document can be interpreted both ways that the plaintiff was actually promoted and was to be paid salary of Acting Lance Dafedar and also that the plaintiff was to be paid only the salary of Acting Lance Dafedar and was not promoted as such. In any case, even presuming that the plaintiff was so promoted vide order Exhibit P2, the question remains, as to whether he got a licence to violate the earlier condition, on which he was retained in service. The plaintiff could have been validly discharged on account of his previous red ink entries and it was only by way of mercy that he was retained in service but with a condition to be of good behaviour. The plaintiff himself violated the condition by disobeying the order of the second Lt. Shri Sanjay Bhardwaj. He also used abusive and insubordinate language. Discipline in Military service is the foremost requirement of service and the plaintiff had been violating the same from time to time with immunity. Simply by the promotion of the plaintiff, it cannot be presumed that the earlier misconduct of the plaintiff was either to be ignored or that the plaintiff was absolved and exonerated of the previous charges. He was under an obligation to continue to be a disciplined soldier throughout his career in case he was to remain in service which he got only an extension on the condition of being a disciplined person in future. The plaintiff was issued a show cause notice and in reply to that, he simply admitted the charge. Therefore, there was no question of holding any enquiry into the charges levelled against him."

The cumulative effect of the pleadings of the parties is that the appellant had admitted in paragraphs 6 and 10 of the plaint that a show cause notice was served on him and he had admitted his fault regarding the alleged episode involving the appellant and Second Lieutenant Shri Sanjay Bhardwaj. In face of unequivocal admission on the part of the appellant in regard to his involvement in the episode, seeing in the back-ground of red entries in his service record, the Court could hardly find any reason for interfering in the impugned order of discharge.

Reference can be made to a recent judgment of the Supreme Court in the case of ''State of Orissa and Ors. v. Ram Chandra Das'', 1997(2) R J 328, where the Court held that the Disciplinary Authority would be entitled to look into the entire service record of an officer while considering the question of his retention in service. It was further held that mere fact that promotion had been granted after the adverse entries, per se would not have the effect of rendering all such adverse entries ineffective for all intents and purposes. It is equally settled principle of law that scope of judicial review in such orders is limited one and the Courts would not sit as an Appellate Authority to see whether the order is in conformity with the settled principles or not. The present case is certainly not the one where it could be said on any ground whatsoever that there was no material before the concerned authority for passing the order of discharge. The entire service record of the appellant shows that inspite of best endeavours on the part of the employer to give him an opportunity to improve himself, he had not only failed to do so but continued to involve himself in further violations of his duties and expected manner of living as a disciplined soldier of Indian Army.

The learned Courts below have come to a concurrent finding of fact which is in consonance with the settled principles of law. I see no reason to differ with the view expressed and consequently finding no merit in this appeal, the same is dismissed. However, there shall be no order as to costs.