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
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
