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Judgment
A.K. Sikri, J.—In all these writ petitions common question of law is involved, namely, whether services of an Army man can be terminated and he be discharged invoking the provisions of Rule 13(3)III(V) on the basis of Red Ink Entry awarded to such an official in a service career by way of reprimand and imposition of service on earlier occasion. Under what circumstances this issue has arisen in these cases would be treated taking note of facts of each case.
WP(C) No. 3874/95
The petitioner herein was enrolled in the Army on 31.8.1982 and allocated to the Unit of 23 Mechanized Infantry. In September, 1985 he was appointed as Lance Naik. In April, 1986 he was promoted to the rank of Naik. In February, 1990 he got further promotion to the rank of Havildar. In December, 1990 he was posted with NCC Unit at Belgaum where he remained till 1993. On 4.4.1993 he returned to the Unit and posted to ''C'' Company. Between September, 1993 to December, 1994 i.e. within a span of 15 months the petitioner was implicated four times on charge of intoxication and was punished. In this manner, during this period of 15 months, four Red Ink Entries were given on the basis of said punishments. Though we may point out that as per the petitioner, respondent No. 3 herein was inimical to him who had taken charge of Senior JCO of ''C'' Company in April, 1993 as he had reported theft case against him in September, 1989 and as a retribution he had falsely implicated the petitioner herein. However, for the purpose of this case we need not go into the allegation of mala fide and bias against respondent No. 3 in view of the fact that we are deciding the issue that has arisen on legal grounds.
After awarding four Red Ink Entries, a show cause notice dated 16.3.1995 was served upon the petitioner for discharging his service under Army Rule 13(3)III(V). The petitioner submitted his reply. However, the respondent went ahead with passing discharge orders whereby terminating the services of the petitioner w.e.f. 1.4.1995. According to the petitioner he thereafter made various attempts to seek hearing of the Chief of Army Staff or other senior officers but was refused access to them. Feeling aggrieved the petitioner preferred this petition in October, 1995 challenging the discharge order on various grounds. At the time of hearing, two principle submissions were made by Mr. C.M. Khanna, learned counsel for the petitioner, namely:
Discharge order on the basis of aforesaid Red Ink Entries is illegal.
The petitioner was never served with the discharge order passed after the show cause notice. Even with the counter-affidavit no such order is placed on record. The petitioner was only given the discharge certificate.
We find from the reading of the writ petition that there is no specific allegation in the writ petition about the non-service of the order. Even otherwise it is not necessary to go into this aspect as the petition warrants to be allowed accepting the first contention raised by learned counsel for the petitioner. The issue as to whether Red Ink Entries awarded to a person would be sufficient to expel a person from service has been authoritatively determined by this Court in a series of judgments. A Division Bench of this Court in the case of Surinder Singh Sihag Vs. Union of India (UOI) and Others, decided this question and held that on the basis of such Red Ink Entries, an employee cannot be discharged under Army Rule 13(3)III(V). That was also a case where the petitioner had incurred 5 Red Ink Entries in his service record as per which he was given severe reprimand three times on the charge of intoxication which is an offence u/s 48 of the Army Act; was deprived of his appointment as Lance Naik on one occasion for the same act u/s 48 of the Army Act; and was awarded 28 days rigorous imprisonment for a charge u/s 39(a) of the Army Act. On the basis of these 5 Red Ink Entries he was served with similar show cause notice dated 13.9.1999 proposing to terminate his services under aforesaid Army Rule whereafter his services were terminated vide order dated 1.12.1999. The Division Bench in its judgment noted that u/s 80 of the Army Act punishment can be awarded to persons other than Officers, Junior Commissioned Officers and Warrant Officers. It was further found that as per Circular Letter dated 28.12.1988 a particular procedure was to be followed for initiating action for dismissal or discharge of person under Army Rule 13 and Army Rule 17. This procedure included holding of preliminary enquiry, i.e., an impartial enquiry (not necessarily a Court of Inquiry) into the allegations against such an employee and giving him adequate opportunity of putting up his defence and explanation and/or adducing evidence in defence and recording an opinion that the allegation substantiated. The said enquiry warranted extreme step of termination of the individual services on the merits of the case. On that basis the Court observed as under:
From a bare perusal of the aforesaid Clause (a), it appears that preliminary enquiry is required to be held. Thus, the delinquent employee must be given an adequate opportunity of putting his defence or explanation or adducing evidence in support of his case. The allegations against him must be substantial. Extreme step of termination of the individual''s service is warranted only upon considering the merit of each case.
Recommendations for dismissal or discharge are required to be forwarded to the Competent Authority, whereupon the intermediate authorities must consider the case in the light what is stated in Clause (a) above.
Only upon receipt of the show-cause notice action thereupon can be taken and thereafter only the Competent Authority may pass final orders.
Note 2 appended to Clause (f) of paragraph 5 clearly spells out the procedures required to be followed. In the instant case, the procedures laid down have been given a complete go-bye.
The Court also referred to and relied upon the judgment of Supreme Court in the case of D.K. Yadav Vs. J.M.A. Industries Ltd., as well as Constitutional Bench judgment of the Apex Court in the case of Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, and set-aside the impugned order of discharge. Same view has been taken consistently by this Court in number of subsequent judgments, some of which are as under:
Rajesh Kumar Vs. Union of India and others WP(C) No. 5642/2002 decided on 8.12.2004 (DB).
Ex. SHGO Rakesh Kumar Sharma Vs. Union of India & Ors. WP(C) No. 667/94 decided on 22.02.2008 (this very Bench has followed the dicta laid down in the aforesaid cases).
The principle of law laid down in the aforesaid judgments is clear: opportunity of putting defence or explanation or adducing evidence is to be given to the concerned employee against whom the action is proposed to be taken under Army Rule 13. For this purpose it is also necessary that a show cause notice is given to the concerned official and only after eliciting his reply thereupon the Competent Authority is to pass final orders. Notwithstanding this principle of law laid down by this Court which is repeatedly followed, the learned counsel for the respondents made an endeavour to impress upon to this Court that this principle is not correct and is based on wrong appreciation of the provisions of the Army Rule. Submission in this behalf is that no such preliminary enquiry was required to be held or opportunity given to the delinquent employee of putting his defence or explanation or adducing evidence in support of his case. It was argued that when the Red Ink Entries were given earlier, they were based on an appropriate enquiry etc. which was needed and, therefore, the requisite procedure as per the Rules for imposing such penalties was followed. Now the action which was taken invoking provisions of Army Rule 13(3)III(v), it was on the basis of those Red Ink Entries and the only consideration was as to whether such a person is to be retained in service or be discharged from service having regard to his service record containing those Red Ink Entries.
This argument of the learned counsel for the respondent, however, is to be rejected in view of the aforesaid principle of law laid down by this Court. We have already pointed out above that the consistent view is taken by this Court that requisite procedure is to be followed even when question is as to whether such an employee is to be retained in service or not. The aforesaid judgments of this Court bind us and there is no reason to take a different view.
The last attempt made on the part of learned counsel for the respondent was to argue that the petitioner in this case was discharged from service on his own request as he sought discharge due to personal family problems. We find from the record that in reply to show case notice the petitioner has, inter alia, stated as under (English translation):
I, therefore, request your good-self that keeping in view my problem, I may kindly be relieved from the military service so that I am able to attend to my family problems. For this I shall ever remain obliged.
We also find that after his discharge when the petitioner had made representation dated 10.8.1995 he was sent reply dated 8.9.1995 whereby rejecting his request on two grounds, namely, (1) he was not entitled to remain in service in the interest of military discipline having regard to his service record; and (2) that in his letter dated 21.3.1995 he had himself asked for his release from Army service. However, it is not a case where his request contained in reply dated 21.3.1995 was accepted and he was discharged from service treating that request as a resignation. Fact remains that he was discharged/terminated from service on the basis of show cause notice. This action is found to be unsustainable. Therefore, we have no hesitation in setting-aside the termination order. At the same time keeping in view the aforesaid conduct of the petitioner, we are of the opinion that petitioner would not be entitled to any salary of the intervening period. We, therefore, set-aside the impugned order of termination as illegal and direct reinstatement of the petitioner in service with no benefit of salary and other allowances for the intervening period. We are also of the opinion that for the purpose of terminal benefits the intervening period during which the petitioner remained out of job shall not be counted.
WP(C) No. 1930/2003
The petitioner herein was enrolled in the regular Army on 11.7.1988 as combatant soldier and was posted to 18 Kumaon Regiment. On 6.11.1998 he was posted to 26 Rashtriya Rifles Battalion at Kupwara in J&K State. This sector is known to be most terrorist infested area. The petitioner started taking alcohol being issued to the troops. The petitioner was implicated three times, i.e., on 6.5.99, 16.5.99 and 11.2.2000 on charge of intoxication and was punished. In this manner, during this period, three Red Ink Entries u/s 48 of the Army Act, 1950 were given on the basis of said punishments. Though we may point out that as per the petitioner, the Commanding Officer 26 Rashtriya Rifles Battalion who was not from Kumaon Regiment did not like the petitioner and it was because of his pre-determination with mala fide intention the petitioner was awarded severe reprimand, three times within a period of six months. On 22.4.2000 the petitioner was posted back to his unit 18 Kumaon Regiment. On 1.4.2001 the petitioner was promoted to the rank of Naik. On 20.1.2003 the petitioner was again awarded severe reprimand u/s 48 of Army Act, 1950. In February, 2002 the record office of the Kumaon regiment Ranikhet intimated the commanding officer that the petitioner has been awarded four red ink entries therefore he could be discharged from service.
After awarding four Red Ink Entries, a show cause notice dated 6.3.2002 was served upon the petitioner for discharging their service under Army Rule 13(3)III(V). The petitioner submitted his reply in which he clearly admitted that he had been given opportunity to improve his habit and character but he failed to do so. Thereafter the petitioner was discharged from service on 8.4.2002. Feeling aggrieved, the petitioner preferred this petition in March, 2003 challenging the discharge order on various grounds. Fact remains that he was discharged/terminated from service on the basis of show cause notice. This action is found to be unsustainable. Therefore, we have no hesitation in setting-aside the termination order. At the same time keeping in view the aforesaid conduct of the petitioner, we are of the opinion that petitioner would not be entitled to any salary of the intervening period. We, therefore, set-aside the impugned order of termination as illegal and direct reinstatement of the petitioner in service with no benefit of salary and other allowances of the intervening period. We are also of the opinion that for the purpose of terminal benefits the intervening period during which the petitioner remained out of job shall not be counted.