Punjab-Haryana High Court
Ex. Driver M.T. Parshotam Dass vs Union Of India And Others on 30 January, 2013
Author: Rakesh Kumar Jain
Bench: A.K.Sikri, Rakesh Kumar Jain
CWP No.662 of 2012 [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.662 of 2012
Date of decision:30.01.2013
Ex. Driver M.T. Parshotam Dass ...Petitioner
Versus
Union of India and others ...Respondents
CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. R.A.Sheoran, Advocate,
for the petitioner.
Mr. Achar Ahmed, Advocate,
for the respondents.
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Rakesh Kumar Jain, J.
The petitioner is aggrieved against the order of his discharge from service dated 09.11.1993 based upon four red ink entries and order of the Tribunal dated 22.07.2011 by which his OA has been dismissed.
In brief, the petitioner was enrolled in the Army on 11.09.1981. He was served with a show cause notice dated 01.10.1993 in which it was alleged that he had incurred four red ink entries during his service and was required to be discharged under item III(v) of table annexed to Army Rule 13(3) as his services were no longer required being undesirable/inefficient, vide Army HQ Letter No.A/13210/159/AG/PS 2(c) dated 28.12.1988.
The petitioner replied to the show cause notice on 07.10.1993 but on 09.11.1993 he was discharged from service as an undesirable soldier as per ARI para 590 and Army Rule 13(3)(v). CWP No.662 of 2012 [2]
***** The petitioner challenged the order of his discharge before the Tribunal alleging that the procedure laid down in the Army HQ letter No.A/13210/159/AG/PS 2(C) dated 28.12.1988 has not been followed as no inquiry was held as envisaged in the said letter and copy of the inquiry was not handed over to him.
In reply, it was alleged that the inquiry envisaged vide letter dated 28.12.1988 is intended to ascertain the facts by the Commanding Officer and there is no statutory requirement of holding such inquiry in the case of discharge. It is also alleged that the show cause notice is required to be issued under Army Rule 17 and after considering the reply to the show cause notice, the order of discharge was passed on the ground that the petitioner has become undesirable soldier because of four red ink entries in his service record. It is also highlighted that twice the red ink entries were made because of intoxication and one because of insubordination resulting in acts "prejudicial to good order and military discipline". It is further alleged that four red ink entries were earned by the petitioner within 5 years of his career and three red ink entries were earned by him within a span of 2 years. The Tribunal rejected the OA filed by the petitioner on the ground of adverse red ink entries and has observed that due procedure has been followed.
Learned counsel for the petitioner has submitted that no inquiry in the name was ever held before passing the order of discharge. In this regard, he has relied upon two judgments of the Delhi High Court in the cases of Surinder Singh Sihag v. Union of India, 2003(1) S.C.T. 697 and Ex.Nk Shri Bagwan v. Union of India and others, 2009(2) CWP No.662 of 2012 [3] ***** S.C.T. 343.
On the other hand, learned counsel for the respondents has submitted that the red ink entries were awarded to the petitioner after issuing him a show cause notice and considering his reply which was the sufficient compliance of the relevant Rules. He has further submitted that the red ink entries have been awarded to the petitioner because of his intoxication, insubordination and lack of discipline and his application filed before the Tribunal has rightly been dismissed.
We have heard learned counsel for the parties and perused the record.
There is no dispute that the petitioner has been discharged from service because of four red ink entries which he had earned on account of intoxication and insubordination. It is also not disputed that no inquiry was ever held except for issuance of show cause notice before imposition of the punishment of discharge.
In this regard, in the case of Surinder Singh Sihag's (supra), the said person was served with the show cause notice indicating the details of five red ink entries incurred in his service record to which he filed the reply but without holding any inquiry, order of his termination from service was issued. In the said case also, the allegation was of intoxication. In that case, the Division Bench of the Delhi High Court held that an order of discharge of service, without following the procedure prescribed therefor, cannot be sustained.
Similarly, in Ex.Nk Shri Bagwan's case (supra), four red ink entries were awarded on the basis of charge of intoxication. It was CWP No.662 of 2012 [4] ***** observed therein as under:-
"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 CWP No.662 of 2012 [5] ***** 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."
"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."
In view of the aforesaid discussion, we find the present writ petition meritorious and as such, the same is hereby allowed and the order of discharge of the petitioner as well as the order passed by the learned Tribunal are hereby set aside with a direction that the petitioner would be reinstated into service with no benefit of salary and other allowances of the intervening period. The intervening period, when the petitioner has remained out of job, shall not be counted for the purpose of terminal benefits.
(A.K.Sikri) (Rakesh Kumar Jain)
Chief Justice Judge
January 30, 2013
vinod*