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Thursday, October 29, 2015

competent to discharge = made an effort to submit that the Lt. General and the Director General of Supplies and Transport was the only officer who was competent to discharge Respondent no.1. We are not in agreement with the said submissions in view of the fact that Table IV of Rule 13(3) clearly prescribes that the Commanding Officer, under whom the non attested person is working, can discharge him from service. It is an admitted fact that the impugned order of discharge had been passed by the Commanding Officer concerned, under whom Respondent no.1 was working and the said Commanding Officer had satisfied himself about the fact that Respondent no.1 was not likely to become an efficient soldier. Respondent no.1 had also been declared deserter. In the circumstances, we are of the view that the order passed by the Commanding Officer dated 27th August, 2005 is just, legal and proper. The judgments cited by the learned counsel for Respondent no.1 do not appear to be relevant and applicable to the facts of the case on hand and therefore, we do not think it necessary to discuss the same. In view of the aforestated facts, the High Court should not have quashed and set aside the said order of discharge which had been passed in accordance with law and therefore, we set aside the impugned judgment delivered by the High Court. The appeal stands disposed of as allowed with no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.5015 OF 2008





Union of India & Ors.                        .....Appellants



                                VERSUS

Manoj Deswal & Ors.                        …..Respondents


                               J U D G M E N T



ANIL R. DAVE, J.



1.    Being aggrieved by the Judgment dated 17th August, 2007  delivered  by
the High Court of Delhi in Writ Petition © No. 8004  of  2006,  this  appeal
has been filed by the Union of India and others.

2.    The facts giving rise to the present litigation in a nut-shell are  as
under:

      Respondent no.1 was recruited and was undergoing  training  for  being
appointed to the post of Store Hand  Technical  (SHT)  in  the  Army  Supply
Corps and he had joined his Basic Military training  at  Bangalore  on  14th
August, 2004.   Upon completion of the training but before  being  confirmed
in service or being appointed as a soldier,  he  was  granted  annual  basic
leave  for  28  days  from  5th  January,  2005  to  1st   February,   2005.
Thereafter, he became  sick  and  hospitalized  from  4th  February  to  8th
February, 2005.  Thereafter, he  proceeded  on  casual  leave  for  15  days
commencing from 24th February to 10th March, 2005 and  resumed  his  service
on 11th March, 2005 and on 12th  March,  2005  he  requested  for  voluntary
discharge  possibly  because  his  mother  was  not  keeping  good   health.
Subsequently, on 14th March, 2005, he withdrew  his  request  for  voluntary
discharge and thereafter  he  remained  absent  from  the  training  without
sanctioned leave from 2nd April, 2005 till 20th July, 2005 and  resumed  his
duty on 21st July, 2005.

3.    On 27th August, 2005 he had been discharged from service  as  in  view
of the Commanding Officer under whom he was working,  he  was  ‘unlikely  to
become an efficient soldier’.  He had been discharged under  the  provisions
of Army Rules, 1954 (hereinafter referred to as ‘the  Rules’).   Before  his
discharge, a summary enquiry  had  been  made  as  he  had  remained  absent
unauthorisedly and in the said enquiry it was found  that  his  absence  was
unauthorized.  Looking at the fact that Respondent no.1 had remained  absent
and had not resumed his duty, he was declared as deserter by an order  dated
30th  July, 2005.

4.    In the aforestated circumstances, Respondent no.1 had  challenged  the
validity of his order of discharge by filing the aforestated  writ  petition
before the High Court and after hearing  the  concerned  counsel,  the  High
Court had allowed the writ petition by setting aside the order of  discharge
dated 27th August, 2005, but with liberty to the present appellants to  hold
a fresh enquiry against  Respondent  no.1.  It  was  also  provided  in  the
judgment that payment of back wages would depend upon the final  outcome  of
the fresh enquiry, which might be initiated against Respondent no.1.

5.    Being aggrieved by the aforestated judgment, the Union  of  India  and
others have filed this appeal.

6.    The learned counsel appearing for the Union of India mainly  submitted
that the High Court committed a serious error by setting aside the order  of
discharge only on the ground that Respondent no.1 had not been  afforded  an
opportunity to defend his case before the order  of  discharge  was  passed.
He further submitted that without issuance of show cause  notice  Respondent
no.1 could have been discharged from service.

7.    The learned counsel appearing for the appellants  drew  our  attention
to the fact that the order of discharge was just, legal and proper  for  the
reason that Respondent no.1 was not likely to become a good soldier in  view
of his indisciplined behaviour.  He further submitted that  with  regard  to
his absence, a  summary  enquiry  had  been  held  on  29th  July,  2005  in
pursuance of an order of the Commanding Officer dated 26th July,  2005.   In
the said inquiry, it was found that in fact  Respondent  no.1  had  remained
absent without sanctioned leave or in an unauthorized manner  for  108  days
and for that reason he had been declared deserter by  an  order  dated  30th
July, 2005.

8.    The learned counsel also drew our attention to  Rule  13  (3)  of  The
Army Rules, 1954 (hereinafter referred to  as  ‘the  Rules’)  and  submitted
that as per the provisions of the said rule, it was open to  the  Commanding
Officer to discharge Respondent no.1, who had not been attested as  per  the
provisions of Sections 16 & 17 of the Army Act, 1950  (hereinafter  referred
to as ‘the Act’).

9.    He further submitted that being not an  attested  trainee,  status  of
Respondent no.1 was that of a probationer and the  order  of  discharge  did
not contain any stigmatic remark.  The order of discharge  is  an  order  of
discharge simplicitor.  In  the  interest  of  administration,  it  was  not
thought proper to continue Respondent no.1 as a trainee and  therefore,  the
order of discharge  had  been  passed,  whereby  Respondent  no.1  had  been
discharged from service.

10.   The learned counsel relied upon the judgments delivered by this  Court
in Ram Sunder Ram v. Union of India (2007 (13) SCC 255) and Union  of  India
v. Dipak Kumar Santra (2009 (7) SCC 370) so as  to  substantiate  his  case,
that if an enquiry is  made  and  thereafter,  a  non  attested  trainee  is
discharged, it is not necessary to issue a notice calling upon him  to  show
cause as to why his services should not be terminated.   According  to  him,
Respondent no.1 had remained unauthorisedly absent,  which  was  an  act  of
indiscipline and the said fact had been established in the court of  enquiry
held on 29th July, 2005.  He had also been declared deserter.  Moreover,  as
he had not been given  regular  appointment  as  a  solider,  being  like  a
probationer, it was open to the Commanding Officer  of  Respondent  no.1  to
discharge him from service as per  the  provisions  of  Rule  13(3)  of  the
Rules.

11.   He, therefore, submitted that the impugned judgment delivered  by  the
High Court is improper and unjust and  therefore,  it  deserved  to  be  set
aside.

12.   On the other hand, the learned counsel appearing for  Respondent  no.1
forcefully submitted that there was not only violation of the  principle  of
natural justice but certain provisions of the Rules had also  been  violated
by the appellants while passing the order of discharge  and  therefore,  the
High Court was absolutely right when it quashed and set aside the  order  of
discharge.

13.   The learned counsel for Respondent no.1 submitted that by not  issuing
show cause notice there was fragrant violation of the principles of  natural
justice.   Moreover,  the  officer  who  could  have  passed  the  order  of
discharge  was  the  Lt.  General  and  Director  General  of  Supplies  and
Transport and not the Commanding Officer.  He further submitted  that  there
is virtually no difference between attested and non-attested solider and  he
also submitted that Respondent no.1 had, in fact, not  remained  absent  for
108 days.  The  said  finding  arrived  at  by  the  court  of  enquiry  was
incorrect and therefore, also the resultant order of discharge  was  bad  in
law.  He, therefore, submitted that the impugned  judgment  is  just,  legal
and proper and therefore, the appeal deserved dismissal.

14.   Upon hearing the leaned counsel, we are of  the  view  that  the  High
Court committed an error  by  setting  aside  the  order  of  discharge  and
therefore, the appeal deserves to be allowed.

15.   It is an admitted fact that Respondent no.1  had  not  been  attested.
Certain formalities are required to be done for being attested  as  per  the
provisions of Section 17 of the Act and admittedly the said formalities  had
not been done.   The status of Respondent no.1 was just like a  probationer,
whose service could be terminated without holding any enquiry.  In spite  of
the fact that service of Respondent no.1 could have been terminated  without
holding any enquiry, an enquiry had been held on 29th July, 2005 and it  was
found that Respondent no.1 had remained absent  for  108  days  without  any
sanctioned leave.  The said act is an act of  gross  indiscipline.   Absence
of Respondent no.1, being a finding of fact, we would not like to  interfere
with the same especially when after  holding  the  said  enquiry  Respondent
no.1 had also been declared deserter.

16.   A person who remained  absent  unauthorisedly  and  who  was  declared
deserter can never turn out to be a good soldier and as per  the  provisions
of Rule 13(3) of the Rules, it is very clear  that  the  Commanding  Officer
can discharge non attested person enrolled under the  Act.   The  Commanding
Officer, as per the provisions of Rule 13(3) of  the  Rules,  had  satisfied
himself about the fact that Respondent  no.1  had  remained  absent  without
sanctioned leave and had  been  declared  deserter  and  therefore,  he  was
unlikely to become an efficient solider.  In the circumstances,  we  do  not
find any fault with his decision  about  discharging  Respondent  no.1  from
service.

17.   We have perused the judgments referred to by the learned  counsel  for
the appellants and we are in respectful agreement with  the  view  expressed
by this Court to the effect that no special notice is required to  be  given
before discharge of a person who is not attested,   especially  in  view  of
the fact that a court of enquiry had already been held on  29th  July,  2005
and Respondent no.1 had been declared deserter by an order dated 30th  July,
2005.

18.   The learned counsel appearing for Respondent no.1 relied upon  certain
judgments and made an  effort  to  submit  that  the  Lt.  General  and  the
Director General of Supplies and Transport was  the  only  officer  who  was
competent to discharge Respondent no.1.  We are not in  agreement  with  the
said submissions in view of the fact that Table IV  of  Rule  13(3)  clearly
prescribes that the Commanding Officer, under whom the non  attested  person
is working, can discharge him from service.  It is  an  admitted  fact  that
the impugned order of discharge had been passed by  the  Commanding  Officer
concerned, under whom Respondent no.1 was working and  the  said  Commanding
Officer had satisfied himself about the fact that Respondent  no.1  was  not
likely to become an efficient soldier.

19.   So as to satisfy ourselves, we had called for the original record  and
on perusal of the original record, we have found that the court  of  enquiry
had been held and Respondent no.1 had also been declared deserter.   In  the
circumstances, we are of the view that the order passed  by  the  Commanding
Officer dated 27th August, 2005 is just, legal and  proper.   The  judgments
cited by the learned counsel  for  Respondent  no.1  do  not  appear  to  be
relevant and applicable to the facts of the case on hand and  therefore,  we
do not think it necessary to discuss the same.

20.   In view of the aforestated facts,  the  High  Court  should  not  have
quashed and set aside the said order of discharge which had been  passed  in
accordance with law and  therefore,  we  set  aside  the  impugned  judgment
delivered by the High Court.  The appeal stands disposed of as allowed  with
no order as to costs.

                                                            .………..……………………J.
                                           (ANIL R. DAVE)


                                                            ………..…………………….J.
                                         (ADARSH KUMAR GOEL)
NEW DELHI;
OCTOBER 28, 2015

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