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Judgment
Mukul Mudgal, J.—The writ petition avers as under:
The petitioner was enrolled as a Signalman in the Corps of Signals of the Indian Army on 20.1.1984 after completing his training at Jabalpur. In the year 1985 the petitioner was posted at Jabalpur when he took leave for his marriage. On late return from leave he was punished with 7 days rigorous imprisonment in Military Custody for having overstayed leave without sufficient cause. It is further submitted that in 1986 the petitioner''s wife was admitted in Air Force Hospital, Kanpur where she delivered an underweight child and since the condition of both the mother and the child were described as serious, the petitioner again overstayed leave for which he was again awarded 7 days rigorous imprisonment under the Army Act. Again in 1990 when the petitioner was posted at Dimapur the petitioner was detailed to undergo an upgrading training Course at Goa. The petitioner joined the course belatedly after 33 days. The petitioner was thereafter issued the show notice dated 19th May, 1993 in which five punishments were detailed in 9 years of service and it was stated that he was not considered suitable for further retention in the Army. Further the petitioner was asked to show cause why he should not be discharged from service after being found undesirable under Army Rule 13 (iii)(iv) on 24.5.1993. The petitioner submitted his reply to the notice to show cause and on 4th June, 1993 the petitioner''s services were terminated and the appeal against the said order dismissed on 6.4.1994, leading to the present petition.
The petitioner has filed this writ petition challenging the above order dated 4th June 1993 terminating his services. The relevant portion of the order impugned in this petition reads as under:
Transferred to the Reserve on (This column in Blank).
Discharged by order of GOC 6th MTN DIV Dismissed (This column is blank).
In consequence of under the provision of Army Rule 1954/ Rule 13 (3) Column III(v) being undesirable solider (service no longer reqd).
The reasons given for the discharge of services of the petitioner by the respondents in the counter affidavit are that under the provisions of Rule 13(iii)(v) of the Army Rules 1954 the petitioner''s services were terminated on account of his being an undesirable solider. The petitioner has challenged the discharge in this Court and termed it as an order of dismissal and not discharge and further contended that this violates the principle of law laid down in the judgment of the Hon''ble Supreme Court in Jagdish Mitter Vs. The Union of India (UOI), .
IT is further contended that the impugned order besides terminating petitioner''s services is stigmatic on the face of it and not "discharge simplicities and accordingly violates Article 311(2) as no inquiry mandated by Article 311 has been held.
The respondents in reply had contended that the petitoner belongs to the Crops of Signals and was enrolled on 20th January 1984. It was stated that the petitioner was detailed on a course while posted at Dimapur and over stayed on leave for which he was charged u/s 39(a) of the Army Act. It is further stated that on the following occasions the petitioner was again charged for similar misdemeanours.
(i) In 1985 the petitioner over stayed his leave and was punished with 7 days Rigorous Imprisonment in Military Custody.
(ii) Again in 1986 the petitioner overstayed his leave without intimation and was awarded 7 days rigorous imprisonment.
(iii) In 1990 the petitioner was detailed to undergo an upgrading training course at Goa after which he went on leave and overstayed for which he was punished with 7 days imprisonment in Military Custody.
(iv) In 1991 the petitioner was awarded 14 days imprisonment for the same offence, and
(v) In 1993 28days imprisonment and 14 days pay fine was awarded to the petitioner.
Thus it is contended by the respondents that the petitioner was a habitual absentee and on 5 occasions received punishment for over staying the leave. Hence the petitioner''s discharge was on account of his frequent over staying of leave without sufficient cause in accordance with Army Rule 13(iii)(iv).
On the other hand the plea of the learned counsel for the petitioner is that the stand taken in the counter affidavit leads to the conclusion that the impugned order is that of dismissal and not discharge and on the face of the impugned order itself it is evident that the petitioner has been punished for misconduct. However, the petitioner in his rejoinder while not denying the fact that he was punished on 5 earlier occasions has merely stated that he has undergone the said punishment as a disciplined solider and having been punished once could not be put to double jeopardy and cannot be punished twice for the same offence because in one of the instances the petitioner has sought to justify the absence on the ground that his wife aborted the foetus during the train journey and was hospitalized which was the reason for reporting late. Only in this instance when the petitioner over stayed has some Explanation been given. However for the other 4 instances mentioned in the counter affidavit the petitioner has not explained in the rejoinder and has merely contended that as a disciplined solider he accepted the punishment.
The plea of the petitioner is that once he has been tried and punished for the alleged misconduct by being awarded punishment u/s 39(b) of the Army Act he cannot be punished again for the same offence. Insofar as the plea of double jeopardy is concerned, this plea is in fact based upon Article 20(2) of the Constitution of India which reads as follows:
Protection in respect of conviction for offences:(1)....
(2) No person shall be prosecuted and punished for the same offence more than once.
It is well settled that to attract Article 20(2) the offence must be the same i.e. involving the same ingredients in all respects and a trial for separate and distinct offence is not barred under Article 20(2). Furthermore., the word ''prosecution'' has been held not to normally cover departmental proceedings which are not held before the Criminal Court.
In the present case at best, even assuming, that imprisonment awarded u/s 13(iii)(v) of the Army Act was for a misdemeanour which was criminal in nature, the discharge of the petitioner challenged in the present proceedings cannot be any stretch of imagination be considered to be a criminal proceeding and, Therefore the bar under Article 20(2) of the Constitution cannot be attracted.
Insofar as the judgment of Jagdish Mitter (supra) is concerned the plea of the petitioner is that a discharge of Government servant stating him to be undesirable to be retained in Government service has been held to been held to be an order of dismissal warranting compliance of Article 311(3) of the Constitution which was not done in the present case and it is thus submitted that the petitioner''s dismissal cannot be sustained in the light of the aforesaid judgment.
The learned counsel for the respondent has sought to rely upon the following two judgments:-
Union of India and others Vs. Corporal A.K. Bakshi and another, as JT 1996 (3) SC. And
Gunner Mamraj v. Chief of Army Staff dated 30th April 2001 by a Division bench of this Court.
In UOI v. Corp. A.K. Bakshi (supra) the Hon''ble Supreme Court while construing Rule 15(2)(g)(ii) relating to habitual absence without leave and Rule 18 which provided for dismissal or removal by way of punishment, held that the policy of discharge envisaged that in case of a habitual offender having incurred six punishments, the action of discharge of such personnel was not by way of punishment for misconduct for which he was already punished, but the basic idea underlying the policy for discharge was that recurring nature of punishments for misconduct rendered such a person unsuitable for retention in the Air Force.
The principle laid down in the above case would apply to the facts of the present case also as in the present case show cause notice seeking to apply Rule 13(iii) (v) was given to the petitioner on 19.5.93 to which the Petitioner responded on 24.5.93. Similarly in the present case also the overall assessment of the petitioner''s punishments for similar offences was made only as a measure of assessing his suitability to continue in Army and not as punishment. Similarly notice to show cause was given to the discharged airmen in UOI v. A.K. Bakshi as to why procedure u/s 15 for the discharge not be adopted. The judgment of the Division Bench of this Court in this case of Gunner Mamraj (supra) relied upon by the respondent is, however, inapplicable as the main plea in that case was that the order of discharge was passed by an offer not competent to do so.
Rule 13 (3) (v) of the Army Act, 1954 & Rule 15(2) of the Air Force Rules, 1969 read as under:
"Rule 13(3) (iii)(v):
Ground of Competent authority Manner of discharge to authorise discharge discharge All other Brigade/Sub-Area Commander The Brigade or Classes of Sub-Area Commander discharge before ordering the discharge shall, if the circumstances of the case permit give to the person whose discharge is contemplated an opportunity to show cause against the contemplated discharged." "Rule 15(2):
(2) Any power conferred by this rule on any of the authorities may also be exercised by any other authority superior to it.
Class Cause of Competent authority Special discharge to authorise instructions Persons (a) xxx xxx xxx enrolled under the (b) xxx xxx xxx Act who have been (c) xxx xxx xxx arrested. (d) xxx xxx xxx (e) xxx xxx xxx (f) xxx xxx xxx (g) His service no longer required:- (i) xxx xxx xxx (ii) Unsuitble Air Officer for retention i/c the Air Force. Administration."
Consequently, I am of the view that in view of the principles enunicated in UOI v. Corp. A.K. Bakshi, the impugned order dated 4.6.93 passed under Rule 13(iii)(v) of the Army Rules which is analogous to Rule 15(2)(g)(ii) of the Air Force Rules, cannot be construed as an order of dismissal stigmatizing the petitioner and cannot be considered to be dismissal. The armed forces are services which are supposed to set an example to rest of the services by their discipline and conduct. Successive overstaying of leave by the petitioner led to several punishments. The petitioner is not, Therefore, being punished twice but on the contrary his overall conduct including the petitioner''s punishments were being assessed to ascertain whether his continuance in the service is unsuitable. The observation made in the order of discharge have been made in this context so as to assess the unsuitability of the petitioner and cannot be treated to be stigmatic in character. Since it is found that the petitioner was not punished the question of applicability of Jagdish Mitter''s case (supra) cannot arise. The petitioner''s conduct of repeatedly overstaying his leave was a vital and relevant factor which led to his being assessed as an undesirable solider. Even the order impugned shows that the petitioner was discharged and not dismissed as it is only the column which relates to discharge which was filled and not the column relating to dismissal which had been left blank.
Accordingly the writ petition has no merits and the same is dismissed with no order as to costs.