Nov - High Court of Judicature at Allahabad

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1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 S.S.C. December,1999. Various other facts stated in the writ petition are not Defence Service Regulation (Regulation necessary to be mentioned herein. It has for Army) 1987-Para 164-Discharge from been stated that during leave period, Service-on charges of overstaying on petitioner was called back and due to leave-held-valid can not be interfered by Writ Court. aforesaid fact, annual leave of petitioner for the year 1999 has been elapsed. A Held: Para 11 & 12 show cause notice was issued to petitioner submitting reply and subsequently a show The Apex Court has further held that in cause notice was also issued directing the said circumstances discharge from petitioner to submit reply to said show service cannot be said to be by way of punishment. In Sugreev Singh's case cause notice. Petitioner has submitted (Supra), the Division Bench has also reply and an order of discharge from taken the same view. service was passed on the ground that petitioner was awarded four red ink After considering all facts and entries during his 13 years of service and circumstances of the present case and petitioner was send on leave for 64 days decisions of this Court as well as the Apex Court, I am of view that discharge but without any permission for extension of petitioner from service cannot be said of leave, he has overstayed, which is an to be illegal or disproportionate. offence under the Army Act but Case law discussed: respondent without adopting any W.P. No. 10816 of 2000, W.P.No. 3201 of procedure as provided under the Act, an 1994 decided on 2.2.2005, 1990 ACJ, 597, administrative action has been taken 2002 (2) ESC (Allahabad), 207, 2008 (2) Supreme Court, 302, 2005 (2) ESC, 892. under the Army Rule 13(3)(4) of the Army Rules. The ground taken in the (Delivered by Hon'ble Shishir Kumar, J.) discharge certificate was that as petitioner has earlier been punished under Sections 1. This writ petition has been filed 40, 39, 63 of the Army Act, for various for quashing the order of discharge dated offences, therefore, he is being discharge 25th May, 2000 (Annexure 10 to the writ from service being undesirable as petition) as well as the order dated 31st inefficient solider. Petitioner filed a May, 2005 (Annexure 17 to writ petition). complaint as provided under the Act that Further prayer in the nature of mandamus too has been dismissed. Hence, the commanding the respondent No.1 to treat present writ petition. petitioner to have continued in Colour Service till he would have completed 3. Counter and rejoinder affidavits requisite service laid down in Para 164 of have already been exchanged, therefore, Defence Service Regulation (Regulations with the consent of parties, present writ for Army), 1987 with all consequential petition is being disposed of on the benefits. admission stage. 2. The facts stated in the writ 4. Learned counsel for petitioner petition are that petitioner who was submits that the ground taken by recruited in army was granted annual respondents while discharging petitioner leave from 12 th September, 1999 upto 28 th from service cannot be sustained in view
3 All] Naik R.K. Mahapatra V. Chief of Army Staff and others 1019 of the fact that if petitioner has committed some offence, he is liable for trial by the Court Martial. Court Martial being a procedure for punishment under the Act is to be adopted. Under Section 108 of the Army Act, there are four types of Court Martial by which petitioner can be tried. In case in the opinion of respondents, petitioner has committed any offence or overstayed on leave without sanction of the same, unless and until an opportunity to that effect is given, petitioner cannot be discharged from service. Under the Army Act and Rules, there is a procedure that, in case, some offence is committed by a person subject to the Army Act, a court of enquiry as provided under Rule 177 has to be ordered by the competent authority and in case it is found that prima-facie case is made out, then the commanding officer will pass an order for holding a Court Martial either summary, general or district. But taking action under Rule 13, without affording an opportunity to petitioner is not sustainable in law and is liable to be quashed. 5. Assuming without admitting this fact, if petitioner was punished earlier on some offence that cannot be a ground for discharge of petitioner from army service. Petitioner has placed reliance upon a judgement of this Court in C.M.W.P. No. 10816 of 2000 No.5042301A, L.B.Thapa Vs. Chief of Army Staff and others. Another judgement has been relied upon by petitioner in C.M.W.P.No. 3201 of 1994 Shambu Gurung Vs. Union of India and others decided on 2.2.2005. Further reliance has been placed upon 1990 ACJ, 597, Chaukas Ram Vs. Sub Area Commander and Another. Taking support of the aforesaid judgements, learned counsel for petitioner submits that, in case, no notice against contemplated discharge having been given to petitioner, it will be treated that order impugned of discharge has been passed in violation of the procedure laid down by Rule 13 and also against the principle of natural justice. Further argument has been raised that unless and until submission is recorded that trial of petitioner by Court Martial is inexpedient or impracticable against Rule 13, cannot be taken. In such situation, learned counsel for petitioner submits that discharge order passed by respondents is liable to be set aside. 6. On the other hand, learned counsel for respondents submits that petitioner was NCO Incharge, Kerbside Petrol Pump and was posted to 45 Company ASC (Supply) Type-B on 3.9.1998. Petitioner had four red-ink entries from his previous units under various sections of the Army Act, awarded by different Commanding Officer under whom he was working. Petitioner requested for annual leave for the year 1999 in the month of December, 1999. His leave was sanctioned and he was issued a railway warrant for both ways in advance as per the existing rules. Petitioner before proceeding on leave has to handover the charge but petitioner became absent without leave with effect from 29.12.1999 without handing over the charge of the petrol pump. An apprehension roll was issued as he left the unit without any proper order and permission. Petitioner reported on 4.1.2000. Thereafter petitioner was sent on 34 days part of annual leave for the year 2000 on compassionate ground. His leave was extended by 30 days till 12th March, 2000. After re-joining on leave, petitioner was awarded "Severe Reprimand" for being absent without
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Nov - High Court of Judicature at Allahabad

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