Delhi High Court
Guardsman Manar Ram vs Chief Of The Army Staff And The ... on 13 November, 2002
Author: R.S. Sodhi
Bench: R.S. Sodhi
JUDGMENT Anil Dev Singh, J.
1. This appeal is directed against the order of the learned Single Judge dated May 12, 2000 in Civil Writ Petition No. 5867 of 1998 whereby the challenge to the termination of the services of the appellant was rejected by the learned Single Judge. The facts briefly stated are as follows:
2. On March, 9, 1988, the appellant was enrolled as a Soldier in the Infantry Brigade of the Guards on being recruited by the Branch Recruiting Officer at Jhunjhunu in the State of Rajasthan. In the year 1989 it was discovered that the recruitment was wrongly made as the appellant was not a matriculate and therefore did not fulfilll the eligibility criteria. While the case of the appellant is that he had not concealed his educational qualification as the certificate attached with the application for enrolment clearly showed that he was a non-matriculate, the case of the respondents is that the appellant had misrepresented to the Recruiting Officer, at the time of the recruitment, that he was a matriculate and the Recruiting Officer believing the representation of the appellant enrolled him as an Infantry Soldier. After discovery of the fact that the appellant was not a matriculate he was given an option for being remustered in the armed forces, in a lower category, as a Cook. Initially he was not averse to the aforesaid idea, but subsequently he expressed his unwillingness to be appointed as a Cook. In the circumstances, therefore, a notice was issued to the appellant on March 26, 1995 as to why administrative action should be taken to discharge him from service under Army Rule 13, Item III(v) and Section 20 of the Army Act. The show cause notice reads as follows:-
"1. It has been observed from your record of service that you did not possess the requisite edn qualification of matric pass on 09 Mar 88 when enrolled at BRO Jhunjhunu (Raj) in Brigade of the Guards as Inf Sol Gp 'D' which is a mandatory pre-requisite for enrolment.
2. Your enrolment is thus fraudulent. However, you were given a chance for remustering into Cook (U) Gp 'E' but you have expressed you unwillingness for change of trade to a lower grade/cat.
3. In view of the facts stated above, and since you are not permitted to continue to serve as Inf Soldier Gp 'D', show cause as to why administrative action should not be taken to discharge you from service, under Army Rule 13 III (v) and AA Section 20. Your apply should reach this HQ within 30 days of receipt of this show cause notice, failing which it will be presumed that you have nothing to state against the contemplated action.
4. Please return one copy of the show cause notice duly signed(with date) as a token of receipt at the earliest."
3. Before the learned Single Judge the appellant denied the issuance of the show cause notice to him. But it was shown by the respondents that the appellant responded to the show cause notice on April 8, 1995 by submitting his reply thereto in Hindi. As per the case set up in the counter affidavit of the respondents to the writ petition, the Competent Authority, Commander 18 Armoured Brigade, after considering the reply of the appellant accorded sanction for his discharge by a communication dated June 9, 1995. Subsequently, in consonance with the communication dated June 9, 1995, discharge roll of the appellant was prepared and attested by two officers of the regiment but the appellant refused to sign the same. In August 1995, the appellant was transferred to Depot Company Brigade for finalisation of formalities relating to his discharge. On October 23, 1995, the appellant was finally struck off the strength of the Indian Army.
4. Aggrieved by the discharge from the Army, the appellant submitted a statutory complaint dated November 13, 1995 to the Chief of the Army Staff. The statutory complaint remained unreplied. The appellant sent a legal notice dated December 1996, followed by reminders dated August 7, 1997 and August 11, 1997. Since the statutory complaint remained un-answered by the respondents, the appellant filed writ petition claiming reinstatement with consequential benefits. While the petition was pending, the complaint was rejected by the concerned authority on August 30, 1999. The learned Single Judge was, inter alia, of the opinion that since the appellant was not qualified to been rolled as an infantryman, the mere fact of his having served for more than seven years did not create any equity in favor of the appellant and it certainly did not create any estoppel against the respondents. The learned Single Judge also noted that the appellant in the writ petition had stated that no show cause notice was issued by the respondents before his discharge from service. The learned Single Judge found that the statement was false as the appellant had replied to the show cause notice on April 8, 1995. Therefore, the learned Single Judge was of the opinion that the appellant concealed the material fact of having been served with a show cause notice and had approached the court with unclean hands. In the circumstances, therefore, the learned Single Judge rejected the writ petition. Not satisfied with the order passed by the learned Single Judge, the appellant has filed the instant Letters Patent Appeal.
5. The main plea of the appellant is that his services were not validly terminated under Rule 13, Item III(v) of the Rules. Accordingly to the appellant, he was required to be dealt with under Section 44 of the Army Act, 1950 as he was accused of having willfully made a false representation at the time of enrolment that he was a matriculate.
6. In order to appreciate the stand of the appellant it would be necessary to notice Section 44 of the Army Act. Section 4 reads as follows:-
"44. False answers on enrolment Any person having become subject to this Act who is discovered to have made at the time of enrolment a willfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before whom he appears for the purpose of being enrolled shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to five years of such less punishment as is in this Act mentioned."
7. Appearing on behalf of the appellant, Mr. Kumar submitted that since the appellant is alleged to have made a mis-statement at the time of his enrolment, he was mandatorily required to be tried by a court martial under Section 44 of the Army Act. Accordingly to Mr. Kumar, the services of the appellant were wrongly terminated under Section 20 of the Army Act read with Rule 13, Item III(v) of the Army Rules as only these provisions cover cases of misconduct which are not dealt with under any other provisions of the Army Act and the Rules.
8. We have considered the submissions of the learned counsel for the appellant. We find the same to be devoid of any substance. Section 44 of the Army Act empowers the concerned authority to try any person subject to the Act who is discovered to have made a false statement at the time of enrolment, but there is no compulsion for the concerned authority to proceed under Section 44 of the Act which provides for imprisonment for a term which may extent to five years or such less punishment on conviction by a court martial. The concerned authority can always resort to an administrative action instead of trying a person by a court martial. That option has not been taken away either by the Act or the Rules. The power comprised in Section 20 of the Army Act read with Rule 13, Item III(v) is in independent power and is not hedged in by the provisions relating to Court Martial of persons subject to the Army Act. We are fortified in this view by the two decisions of the Supreme Court in Union of India v. S.K. Rao, , and Union of India and Ors. v.
Harjeet Singh Sandhu, (2001) 5 SCC 493.
9. The learned counsel for the appellant also submitted that in case Rule 13, Item III(v) of the Army Rules is held to be applicable, it is the Brigade or the Sub Area Commander who is authorised to pass the order of discharge and it is the same authority which is required to communicate the order directly to the person being discharged. He contended that the appellant was not discharged in consonance with Rule 13, Item III(v) of the Army Rules. In contrast, it is the categorical stand of the respondents that the Commander, 18 Armoured Brigade vide his communication dated June 9, 1995 accorded sanction for the discharge of the appellant after considering his reply. The appellant is stated to have refused to sign the discharge roll and the same was attested by the officers of the Regiment. In support of the submission, the respondents produced before us the discharge roll. Keeping in view the discharge roll it seems to us that the appellant was discharged in accordance with Rule 13, Item III(v) of the Rules. Accordingly, we reject the aforesaid submission of the learned counsel for the appellant.
10. Lastly, the learned counsel for the appellant canvassed that the appellant did not make a mis-statement before the Recruiting Officer. He claimed that the appellant had submitted the certificate of his educational qualification at the time of enrolment before the concerned authority which clearly reflected that he was not a matriculate. It was contended by Mr. Kumar that the services of the appellant were wrongly terminated under an erroneous impression that the appellant had made a misrepresentation for securing the job.
11. We have given our earnest consideration to the submission of the learned counsel for the appellant. We feel that it is not necessary to go into the question whether or not any misrepresentation was made by the appellant at the time of his enrolment. It is not disputed that the appellant was not a matriculate. Obviously, he did not meet the qualification prescribed for the post. In the circumstances, we agree with the submission advanced on behalf of the respondent that, assuming without admitting, the appellant did not misrepresent about his educational qualification at the time of his recruitment and a mistake was made in recruiting him, even then the appellant cannot avail of the principle of estoppel. It seems to us that no vested right came into existence in favor of the appellant by his enrolment as an infantry man, since his entry into service was based on mistaken belief that he was a matriculate and fulfilled the minimum educational qualification required for recruitment in service. We agree with the view of the learned Single Judge that as the appellant was not entitled to be enrolled as an infantry man because of lack of prescribed qualification, the mistake could always be corrected by the respondent and the principle of estoppel did not have any application to the instant case. In Smt. Ravinder Sharma and Anr. v. State of Punjab and Ors., , the Supreme Court held the appointment of an employee, who did not possess the requisite qualification for the post in question, as bad in law and liable to be set aside. Keeping in view the aforesaid decision of the Supreme Court, the learned Single Judge, in the circumstances, found the writ petition of the appellant to be devoid of merit.
12. We do not find any infirmity in the order passed by the learned single Judge. Accordingly, the appeal is dismissed..