Punjab-Haryana High Court
Jagraj Singh (No. 14412115K) vs Union Of India And Others on 12 April, 2013
Author: S.S.Saron
Bench: S.S.Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 6991 of 2012 (O&M)
Date of decision : 12.4.2013
Jagraj Singh (No. 14412115K)
..... Petitioner
Versus
Union of India and Others
..... Respondents
CORAM : HON'BLE MR. JUSTICE S.S.SARON.
HON'BLE MR. JUSTICE S.P. BANGARH.
Present : Mr. Ashok Bhardwaj, Advocate for the petitioner.
Mr. Sanjay Joshi, Advocate for Union of India for
respondents No.1 to 6.
None for respondent No.7.
***
S.S. SARON, J.
The petitioner by way of the present petition under Articles 226/227 of the Constitution of India seeks quashing of the order dated 26.5.2011 (Annexure P8) passed by the learned Armed Forces Tribunal, Chandigarh Bench (respondent No.7) and the order dated 8.10.2008 (Annexure P5) passed by the Brig. Commander in terms of which he has been discharged from service locally under provisions of Rule 13(3) read in CWP No. 6991 of 2012 (O&M) [2] conjunction with Rule 13(1), Table Service III (v) of the Army Rules, 1954 and paragraphs 566 and 577 (sic.567) of the Artillery Records Instructions, 2000 and Army Head Quarters letter dated 28.12.1988. A further prayer has been made for reinstating him in service and pay arrears of pay along with interest @ 18% per annum and in the alternative for the payment of pension from the date of his discharge and arrears of pension along with interest @ 18% per annum.
The petitioner was permanently enrolled in the Indian Army on 24.10.1994. He joined the Artillery Centre, Nasik road camp on 30.11.1995. During his service he was inflicted with five red ink entries dated 25.10.1997, 09.8.2000, 21.12.2000, 12.7.2001 and 26.9.2001; besides, one black ink entry dated 10.09.2007. A show cause notice dated 30.11.2001 (Annexure P1) was issued to the petitioner as to why he should not be discharged from service in terms of Item III (v) of Rule 13(3) of the Army Rules and Army Headquarters letter dated 28.12.1988 as he had persistently earned a bad service record by incurring the aforesaid red ink entries. The petitioner was asked to submit his explanation if any in writing within 15 days of the show cause notice. The petitioner submitted his reply dated 05.1.2002 (Annexure P2) in which he assured that he would not repeat the same in future. It was submitted that due to unavoidable circumstances, mistakes had been committed by him one after the other for which he felt sorry and begged pardon. The petitioner thereafter, it is submitted, remained in service and improved and served the Army Organization like a disciplined soldier with utmost sincerity. Nevertheless the Head Quarters 33 Artillery Brigade on 13.9.2007, issued another show cause notice (Annexure P3) stating therein that retention in service of CWP No. 6991 of 2012 (O&M) [3] personnel with persistently bad record (with four red ink entries or more) was not conducive to overall disciplinary standards of the Army. The particulars of the red entries awarded to the petitioner were mentioned. Another show cause notice dated 18.9.2008 was issued, a copy of which it is stated is not in possession of the petitioner. The petitioner filed his reply (Annexure P4) to the said show cause notice dated 18.9.2008 in which he stated that keeping in view his clean record of seven years from his last mistake from 26.9.2001 till date, he may be pardoned. He assured that he would not commit any mistake in future. The reply (Annexure P4) was perused by the Brig. Commander and vide order dated 8.10.2008 (Annexure P5), the petitioner was discharged from service locally under the provisions of Rule 13(3) read in conjunction with the Rule 13(1), Table serial No. III (v) of the Army Rules and paragraphs 566 and 577 (sic. 567) of the Artillery Records Instructions 2000 and Army Head Quarter letter dated 28.12.1988. The petitioner served a legal notice dated 26.12.2009 (Annexure P6) seeking his reinstatement in service and in the alternative his retiral benefits including release of pension. A reply dated 28.1.2010 (Annexure P7) was received by the petitioner to the legal notice from the Major Adjutant for Officiating Commanding Officer. The petitioner then assailed the order dated 8.10.2008 (Annexure P5) and the reply to the legal notice dated 28.1.2010 (Annexure P7) by way of original application No.146 of 2010 before the Armed Forces Tribunal, Chandigarh Bench, Chandigarh (respondent No.7). The said application has been dismissed by the Armed Forces Tribunal, Chandigarh Bench, Chandigarh (respondent No.7) vide impugned order dated 26.5.2011 (Annexure P8) which is also assailed.
CWP No. 6991 of 2012 (O&M) [4]
Notice of motion was issued. Reply on behalf of respondents No.1 to 6 has been filed. It is inter alia stated that the writ petition raises important questions of law for determination by this Court regarding jurisdiction of the High Court to adjudicate upon a writ petition under Articles 226/227 of the Constitution of India against an order passed by the Armed Forces Tribunal under the Armed Forces Tribunal Act, 2007. It is submitted that in view of Articles 136 (2) and 227 (4), besides, Article 33 of the Constitution of India as well as Section 13 of the Armed Forces Tribunal Act 2007, this Court would have no jurisdiction to entertain the petition. On merits it is submitted that the petitioner during his service was awarded five red ink and one black ink entry. Finally he was discharged locally from the Army with effect from 21.10.2008 under Rule 13 (3) read with Rule 13 (1) Table Serial No.III (v), and of the Army Rules Army Head Quarters letter dated 28.12.1988 and paragraphs 566 and 567 of the Artillery Records Instructions 2000. It is submitted that the petitioner was served with a show cause notice for incurring more than four red ink entries. In the show cause notice dated 30.11.2001 (Annexure P1) it is mentioned that the petitioner was a habitual offender and had shown no indication of improving his discipline. He was asked to give reasons as to why he should not be discharged from service in terms of Item No. III (v) of Rule 13 (3) of the Army Rules and Army Head Quarters letter dated 28.12.1988. The petitioner submitted his reply vide letter dated 5.1.2002 (Annexure P2) to the said show cause notice. The justifications given by the petitioner, it is submitted, were not found to be satisfactory. It is submitted that repeated issue of show cause notices to the petitioner were indicative of the opportunities offered to him for improving his discipline CWP No. 6991 of 2012 (O&M) [5] and personal conduct. As per Rules, an individual who has attained more than four red ink entries in his service is liable to discharged from his service as being an undesirable soldier by the authorities. The petitioner had got five red ink entries and one black ink entry. He was a habitual offender and had been given maximum opportunity from 2001 to 2007 for improving his conduct and show definite improvement in his behaviour and conduct but he failed to do so. It is also submitted that the petitioner used to consume liquor in large quantity on daily basis which is not permitted in the Army. He was advised verbally by everyone down the chain of command in the Unit to abstain from consuming liquor. However, he had not improved on his habit and continued to consume liquor, which it is stated was managed by him through unauthorized sources. He had never been penalized severely and left with verbal warnings each time to show definite improvement. Finally, on 10.9.2007 seeing no improvement, he was again marched up to the then Commanding Officer and awarded seven days pay fine for the offence of intoxication under Section 48 of the Army Act. The petitioner, it is submitted, had been a bad example to the troops which was proved from the fact that he had earned five red ink entries in his entire service of 13 years and 8 months in the Army, with number of occasions when he was verbally cautioned/warned for his bad conduct. The request for reinstatement of the petitioner could not be entertained. For pensionary benefits the petitioner was liable to be served for at least 15 years. However, he was discharged after 13 years and 8 months of service. He has been extended benefits that were due to him by way of credit balance at the time of final settlement of accounts, armed CWP No. 6991 of 2012 (O&M) [6] forces personal provident fund, death-cum-retirement gratuity, gratuity and army group insurance fund.
Mr. Ashok Bhardwaj, Advocate learned counsel for the petitioner has contended and laid emphasis on the fact that the order of discharge in respect of the petitioner was not liable to be passed under Rule 13 (3) read with Rule 13 (1) of Army Rules or on the basis of paragraphs 566 and 567 of the Artillery Records Instructions 2000 or for that matter even the letter dated 28.12.1988. It is submitted that the said instructions have been wrongly invoked and discharge on the ground of earning red ink entries is not contemplated by the Army Rules or the instructions. In any case it is submitted that the fact that petitioner was due to retire from service within one year has not been considered.
In response, Mr. Sanjay Joshi, Advocate for the Union of India and the Army Authorities has submitted that this Court has no jurisdiction to entertain the petition and in any case the order of discharge of the petitioner is perfectly legal and in accordance with the Rules and Instructions of the Army and no interference of this Court in exercise of its supervisory jurisdiction is warranted. It is submitted that the petitioner was habitual in taking drinks and had earned four red ink entries and one black ink entry in his service. Therefore, he was rightly discharged from the Army.
We have given our thoughtful consideration to the matter and gone through the records.
Insofar as the question regarding the jurisdiction of this Court is concerned, it may be noticed that a Division Bench of this Court in the CWP No. 6991 of 2012 (O&M) [7] case 15165 Flight Lieutenant Onkar Singh Bawa v. Union of India and others, CWP No.6927 of 2011 decided on 25.1.2013 inter alia observed as follows:-
" We are conscious of the fact that the statutory appeal against such an order is provided under Section 30 of the Armed Forces Tribunal Act, 2007 ( for short 'the Act'), however, having regard to the Constitution Bench judgment of the Supreme Court in the case of "L. Chandra Kumar etc. v. The Union of India and others" AIR 1997 SC 1125 and also that of Delhi High Court in CWP No.13360 of 2009 titled as "Colonel A.D. Nargolkar v. Union of India and Ors"
decided on 26.4.2011, following the aforesaid judgments in the context of this very Act, we are deciding this petition on merits.
Accordingly, we have heard learned counsel for the parties on merits of the writ petition."
In L. Chandra Kumar etc. v. The Union of India and others, AIR 1997 SC 1125 it was held that power of judicial review is a basic and essential feature of the Constitution. Broadly speaking, it was held that judicial review in India comprises of three aspects; i) judicial review of legislative action, ii) judicial review of judicial decision and iii) judicial review of administrative action. The Judges of the Superior Courts have been entrusted with the task of upholding the Constitution and to this end have been conferred the power to interpret it. It is they who have to ensure the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their CWP No. 6991 of 2012 (O&M) [8] functions, transgress constitutional limitations. Therefore, this Court going by the decision in L. Chandra Kumar's case (Supra) has power of judicial review in respect of the judicial decisions of the Tribunal in terms of Article 226 of the Constitution.
The petitioner as already noticed has assailed the order dated 8.10.2008 (Annexure P5) whereby he was discharged from service as he had been awarded five red ink entries and one black ink entries in his service career. He has been discharged under Item No.III (v) of Rule 13 (3) read with Rule 13(1) of the Army Rules as also in terms of paragraphs 566 and 567 of the Artillery Records Instructions 2000 read with letter dated 28.12.1988.
According to the petitioner, the red entries that were awarded to him primarily relate to the Year 2000 and 2001. Thereafter, he did not earn any adverse entry after the last red ink entry on 26.9.2001 till 10.9.2007 for a period of almost six years which according to him shows that he had improved his conduct and, therefore, not liable to be discharged.
In order to appreciate the contentions of the learned counsel appearing for the respective parties, the gist of the disparaging entries which have been awarded to the petitioner may be noticed which are as follows:-
"(a) Army Act Section 39(a) - 07 days rigorous imprisonment (Absenting himself awarded on 25 Dec 1997.
without leave) (red ink entry) CWP No. 6991 of 2012 (O&M) [9] (b) Army Act Section 39(a) - 07 days rigorous imprisonment and Section 48(i) awarded on 09 Aug 2000. (Absenting himself (red ink entry) Without leave and Intoxication) (c) Army Act Section 39(a) - 14 days rigorous imprisonment and Section 48(i) awarded on 21 Dec 2000. (Absenting himself (red ink entry) Without leave and Intoxication) (d) Army Act Section 39(a) - 28 days rigorous imprisonment and Section 48(i) and 14 days detention awarded
(Absenting himself on 12 July 2001. (red ink entry) Without leave and Intoxication)
(e) Army Act Section 48 - 07 days rigorous imprisonment (Intoxication) and 07 days pay fine awarded on 26 Sep 2001.
(red ink entry)
(f) Army Act Section 48 - 07 days pay fine awarded (Intoxication) on 10 Sep 2007.
(black ink entry) The question, therefore, that arises is as to whether the petitioner could be discharged from service in exercise of powers CWP No. 6991 of 2012 (O&M) [10] conferred by item III (v) of Rule 13(3) read with Rule 13(1) of the Army Rules and paragraphs 566 and 567 of the Artillery Record Instructions 2000 read with letter dated 28.12.1988. Rule 13 of the Army Rules and relevant entry III thereof may be noticed, which read as follows:-
"13. Authorities empowered to authorize discharge - (1) Each of the authorities specified in column 3 of the Table below, shall be the competent authority to discharge from service person subject to the Act specified in column 1 thereof on the grounds specified in column 2.
(2) Any power conferred by this Rule on any of the aforesaid authorities shall also be exercisable by any other authority superior to it.
(2A) Where the Central Government or the Chief of the Army Staff decides that any person or class of persons subject to the Act should be discharged from service, either unconditionally or on the fulfillment of certain specified conditions, then, notwithstanding anything contained in this rule, the Commanding Officer shall also be the competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision.
(3) In this table "commanding officer" means the officer commanding the corps or department to which the person to be discharged belongs except that in the case of junior commissioned officers and warrant officers of the Special Medical Section of the Army Medical Corps, the "commanding officer" means the Director CWP No. 6991 of 2012 (O&M) [11] of the Medical Services, Army, and in the case of junior commissioned officer and warrant officers of Remounts, Veterinary and Farms, Corps, the "Commanding Officer" means the Director Remounts, Veterinary and Farms.
TABLE Category Grounds of discharge Competent Manner of authority to discharge authorize discharge 1 2 3 4 III. (i) On fulfilling the [Commanding Persons conditions of his Officer and, in enrolled enrolment or having the case of a under the reached the stage at person of the Act who which discharge may be rank of havildar have been enforced. (or equivalent attested rank) where such person is to be discharged.
Otherwise than
at his own
request and
where the
commanding
officer below the
rank of
Lieutenant
Colonel, the
Brigade or Sub-
Area
Commander.]
(ii) On completion of a Commanding Applicable to
period of army service Officer (in the person enrolled
only, there being no case of persons for both Army
vacancy in the Reserve. unwilling to service and
extend their Reserve service.
Army service). (A person who
has the right to
extend his Army
service and
wishes to
exercise that
right cannot be
discharged under
this head.)
(iii) Having been found Commanding To be carried out
CWP No. 6991 of 2012 (O&M) [12]
medically unfit for Officer. only on the
further service. recommendation
of an invaliding
Board.
(iv) At his own request Commanding The
before fulfilling the Officer Commanding
conditions of the Officer will
enrolment. exercise the
power only when
he is satisfied as
to the desirability
of sanctioning
the application
and the strength
of the unit will
not thereby be
unduly reduced.
(v) All other classes of Brigade/Sub- The Brigade or
discharge. Area Sub-Area
Commander Commander
before ordering
the discharge
shall, if the
circumstances of
the case permit
give to the
person whose
discharge is
contemplated an
opportunity to
show cause
against the
contemplated
discharge.
Paragraph 567 of the Artillery Records Instructions 2000 (Section 10) under the heading 'Discharge, Retirement and Dismissal may also be noticed. The same read as under:-
ARTILLERY RECORDS INSTRUCTIONS 2000 RESTRICTED SECTION - 10 (Page Nos. 200 & 201) Discharge, Retirement and Dismissal.CWP No. 6991 of 2012 (O&M) [13]
Retirement - JCOs/NCOs/OR involved in
Disciplinary Cases
567. Retention of service personnel with a persistently bad record (e.g. with four red ink entries or more) is not conducive to efficiency of the service and only results in waste of Government money. Such cases will be brought to the notice of COs units by the Record Office so that they can be dealt with promptly according to the existing instructions with regard to disposal of undesirable/inefficient personnel vide Army Headquarters letter No. A/13210/159/AG/PS2(c) dated 28 Dec 88 (Copy reproduced as per Appendix D to this Section).
In terms of the above, retention of service personnel with persistently bad record e.g. with four red ink entries or more it has been envisaged is not conducive to the efficiency of the service and only results in waste of Government money. Such cases are to be brought to the notice of the Commanding Officers of the Unit by the Record Office so that they can be dealt with promptly according to the existing instructions with regard to disposal of undesirable/inefficient personnel vide Army Headquarters letter No. A/13210/159/AG/PS2(c) dated 28 Dec 88, the relevant extract of which is as under:-
ARTILLERY RECORDS INSTRUCTIONS 2000 (SECTION 10) RESTRICTED Page Nos.223 - 225 CWP No. 6991 of 2012 (O&M) [14] Appendix D (Refers to Para 567 of Section 10) Copy of Army Headquarters letter No.A/13210/159/AG/PS2(c) dated 28.12.88 PROCEDURE FOR THE REMOVAL OF UNDESIRABLE AND INEFFICIENT JCOS, WOs AND OR.
1. The procedure outlined in the succeeding paragraphs will be followed for the disposal of undesirable and inefficient JCOs, WOs and OR.
JCOs, WOs and OR who have Proved undesirable
2. (a) An individual who has proved himself undesirable and whose retention in the service is considered inadvisable will be recommended for discharge/dismissal. Dismissal should only be recommended where a Court Martial, if held, would have awarded a sentence not less than dismissal, but trial by Court Martial is considered impracticable or inexpedient. In other cases, recommendations will be for discharge.
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) xxx xxx xxx
CWP No. 6991 of 2012 (O&M) [15]
JCOs, WOs and OR who have Proved Inefficient
3. (a) Before recommending or sanctioning discharge, the following
points must be considered:
(i) If lack of training is the cause of his inefficiency arrangements
will be made for his further training.
(ii) If an individual has become unsuitable in his arm/service through no fault of his own, he will be recommended for suitable extra-regimental employment.
(b) Should it be decided to transfer a JCO, he may be transferred in his acting/substantive rank according to the merits of the case and will not be recommended for further promotion and/or increment of pay until he proves his fitness for promotion and/or increment of pay in his new unit.
(c) Prior to transfer, if such a course is warranted on the merits of the case, a WO or an NCO may be reduced to one rank lower than his substantive rank under Army Act Section 20(4).
Procedure for Dismissal/Discharge of Undesirable JCOs/WOs/OR
4. AR 13 and 17 provide that JCO/WO/OR whose dismissal or discharge is contemplated will be given a show cause notice. As an exception to this, service of such person may be terminated without giving him a show cause notice provided the competent Authority is satisfied that it is not expedient or reasonably practicable to serve such a notice. Such cases should be rare, e.g. where the interests of the security of the State so CWP No. 6991 of 2012 (O&M) [16] require, where the serving of show cause notice is dispensed with, the reasons for doing so are required to be recorded. See provision to AR 17.
5. Subject to the foregoing, the procedure to be followed for dismissal or discharge of a person under AR 13/or AR 17, as the case may be, is set out below:
(a) Preliminary Enquiry.
Before recommending discharge or dismissal of an individual the authority concerned will ensure:
(i) That an impartial enquiry (not necessarily a court of inquiry) has been made into the allegations against him and that he has had adequate opportunity of putting up his defence or explanation and of adducing evidence in his defence.
(ii)That the allegations have been substantiated and that the extreme step of termination of the individual's service is warranted on the merits of the case.
(b) Forwarding of Recommendations.
The recommendation for dismissal or discharge will be forwarded, through normal channels, to the authority competent to authorize the dismissal or discharge, as the case may be alongwith a copy of the proceedings of the enquiry referred to in (a) above.
(c) Action by intermediate Authorities.CWP No. 6991 of 2012 (O&M) [17]
Intermediate authorities through whom the recommendations pass will consider the case in the light of what is stated in (a) above and make their own recommendations as to the disposal of the case.
(d) Action by Competent Authority The authority competent to authorize the dismissal or discharge of the individual will consider the case in the light of what is stated in (a) above. If he is satisfied that the termination of the individual's service is warranted, he should direct that a show cause notice be issued to the individual in accordance with AR 13 or AR 17 as the case may be. No lower authority will direct the issue of a show cause notice. The show cause notice should cover the full particulars of the cause of action against the individual. The allegations must be specific and supported by sufficient details to enable the individual to clearly understand and reply to them. A copy of the proceeding of the enquiry held in the case will also be supplied to the individual and he will be afforded reasonable time to state in writing any reasons he may have to urge against the proposed dismissal or discharge.
(e) Action on Receipt of the reply to the show cause notice.
The individual's reply to the show cause notice will be forwarded through normal channels to the authority competent to authorize his dismissal/discharge together with a copy of each of the show cause notice and the proceedings of the enquiry held in the case and recommendations of each forwarding authority as to the disposal of the case.
(f) Final Orders by the Competent Authority.
CWP No. 6991 of 2012 (O&M) [18]
The authority competent to sanction the dismissal/discharge of the individual will, before passing orders, reconsider the case in the light of the individual's reply to the show cause notice. A person who has been served with a show cause notice for proposed dismissal may be ordered to be discharged if it is considered that discharge would meet the requirement of the case. If the competent authority consider that termination of the individual's service is not warranted but any of the actions referred to in (b) to (d) of para two above would meet the requirement of the case, he may pass order accordingly. On the other hand, if the competent authority accepts the reply of the individual to the show cause notice as entirely satisfactory, he will pass orders accordingly.
Note:- 1. As far as possible JCO, WO and OR awaiting dismissal orders will not be allowed to mix with other personnel.
2. Discharge from service consequent to four red ink entries is not a mandatory or a legal requirement. In such cases, Commanding Officer must consider the nature of offences for which each red ink entry has been awarded and not be harsh with the individuals, especially when they are about to complete the pensionable service. Due consideration should be given to the long service, hard station and difficult living conditions that the OR has been exposed to during his service, and the discharge should be ordered only when it is absolutely necessary in the interest of service. Such discharge should be approved by the next higher Commander.(Emphasis added)
(g) Carrying out dismissal/discharge.
CWP No. 6991 of 2012 (O&M) [19]
On receipt of the order of the competent Authority for dismissal/discharge, all action to effect dismissal/discharge will be taken by the Regt. Centre/Record Office, or the Unit, as the case may be. Procedure for Discharge of Inefficient JCOs/WOs/Or
6. Such JCO, WO and OR will remain with their unit and will be dealt with as in paras four and five above in so far as it relates discharge from the service.
7. This letter supersedes the provision of this HQ letter of even number dated 23 Aug 65 and 14 Mar 85.
Sd/- xxxxxxx (RP Agarwal) Maj Gen Addl. DGPS For Adjutant General The Army Authorities have followed the aforesaid paragraph 567 and the letter dated 28.12.88 for discharge of the petitioner from service in exercise of their power under Item III (v) of Rule 13(3) read with Rule 13(1) of the Army Rules. The grounds of discharge under Item III of the Table below Rule 13(3) of the Army Rules are that; (i) on fulfilling the conditions of enrolment or having reached the stage at which discharge may be enforced; (ii) on completion of a period of army service only, there being no vacancy in the Reserve; (iii) having been found medically unfit CWP No. 6991 of 2012 (O&M) [20] for further service; (iv) at his own request before fulfilling the conditions of his enrolment and (v) all other classes of discharge.
The petitioner has been discharged under the category (v) relating to 'all other classes of discharge.' The same though seems somewhat inappropriate as where specific grounds for discharge are given which is followed by a general ground for discharge, the general ground given is not to be construed in a wide manner. The rule of ejusdem generis would apply. In Black's Law Dictionary (Sixth Edition) the rule of ejusdem generis has been defined as that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. Under "ejusdem generis"
canon of statutory construction it has been held that where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated. However, the action of the respondent - Army Authorities is not liable to be nullified on the ground that the clause relating to 'all other classes of discharge' has been applied. This is for the reason that in terms of Rule 13 (2A) of the Army Rules, it is provided that where the Central Government or the Chief of the Army Staff decides that any person or class or persons subject to the Act should be discharged from service, either unconditionally or on the fulfillment of certain specified conditions, then, notwithstanding anything contained in the said rule, the Commanding Officer shall also be the competent authority to discharge from service such person or any person belonging to such class in CWP No. 6991 of 2012 (O&M) [21] accordance with the said decision. The Supreme Court in Union of India and Others v. Brig. J.S. Sivia, 1996 Military Law Journal 3 held that keeping in view the status, responsibility and functions of the Chief of Army Staff, it would be permissible for him under law to issue Army Orders from time to time for the maintenance of discipline and keeping control of the Army which is under his command. It was held that a bare reading of Rule 15 of the Army Rules shows that it is the satisfaction of the Chief of the Army Staff on the basis of which an Officer can be declared unfit to be retained in service due to inefficiency. The Chief of the Army Staff can lay down criteria by way of Army Orders to guide his discretion under Rule 15 of the Rules. Therefore, the Chief of Army Staff would have the necessary powers in terms of Rule 13 (2A) of the Army Rules, which has been noticed above to issue letters, instructions and orders in respect of any person or class of persons who are subject to the Army Act for their discharge from service either un-conditionally or on the fulfillment of certain specified conditions. The conditions for discharge have been specified in Para 567 of the Artillery Records Instructions 2000, which are regarding retention of service personnel with a persistently bad record (e.g. with four red ink entries or more) is not conducive to efficiency of the service and only results in waste Government money. As such it cannot be said that the Army Authorities had no power to issue the order for the discharge the petitioner. Therefore, even it is taken that the order of discharge in respect of the petitioner could not have been passed in terms of Item III (v) of the Table below Rule 13(3) of the Army Rules it can be passed in terms of para 567 of the Artillery Records Instructions 2000 read with letter dated 28.12.1988. In Mohd. Shahabuddin v. State of Bihar, CWP No. 6991 of 2012 (O&M) [22] (2010) 4 SCC 653 it was held that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other provision or rule, and validity of such impugned order must be judged on a consideration of its substance and not its form. The principle is that act of a public servant must be ascribed to an actual existing authority under which it would have validity rather than to one under which it would be void. Therefore, the army authorities do have the powers to pass an order of discharge of its personnels in accordance with the instructions that have been issued.
It may, however, be noticed that in terms Note 2 of the letter dated 28.12.1988 it was required to be ascertained that discharge from service consequent to four red ink entries is not a mandatory or a legal requirement and in such cases, the Commanding Officer is to consider the nature of offences for which each red ink entry has been awarded and not be harsh with the individuals, especially when they are about to complete the pensionable service. Due consideration is to be given to the long service, hard station and difficult living conditions and that the other remark has been exposed to during his service, and the discharge should be ordered only when it is absolutely necessary in the interest of service. The supervisory writ jurisdiction of this Court in respect of the decisions reached at by the Army Authorities is very limited. However, this Court has the power of judicial review of the administrative action discharging the petitioner from Army service. In exercise of the power of judicial review in respect of the administrative decision that has been taken to discharge the petitioner from service, the Court is not concerned with the CWP No. 6991 of 2012 (O&M) [23] decision taken by the authority or with the merits of the decision as the Courts do not substitute their opinion or decision in place of the impugned decision of the competent authority. Judicial review is concerned with the decision making process and can be gone into on the principle of reasonableness which enjoins that the authority taking the decision should take all relevant facts into consideration, it should exclude all irrelevant facts from consideration and the decision should not neither be perverse nor irrational. Perverse would mean improper or contradictory and a decision not supported by any evidence and irrational would mean absurd or illogical which no person properly advised on facts would come to. The impugned order of discharge dated 8.10.2008 (Annexure P5) has not taken into consideration the entire facts and circumstances of the case which were liable to be taken into consideration in the decision making process. The period of service rendered by the petitioner and the fact that he had only about a year to retire from service which would have earned him his pension has indeed not been considered. In the 'Combined Certificate of Discharge and Recommendation for Civil Employment', issued to the petitioner in the form of a booklet at the time of his discharge, a photocopy of which has been submitted by the learned counsel for the petitioner during the course of hearing, it is mentioned that the petitioner has rendered 13 years, 11 months and twenty six days of service which evidently means that he had only one year and four days to complete 15 years of service for getting his pensionary benefits. Note 2 of letter dated 28.12.1988 requires that it should be considered that an individual should not be discharged especially when he is about to complete the pensionable service. The same has admittedly not been adverted to or considered in the CWP No. 6991 of 2012 (O&M) [24] decision making process of discharging the petitioner from his service. Therefore, the impugned order dated 8.10.2008 (Annexure P5) which is bereft of the material consideration as regards the period left for the grant of pension having not been considered, is clearly unsustainable. Besides, the gravity of the offences for which the red ink entries have been awarded was also a factor which was liable to be considered and has not been so considered. It may be noticed that after the red ink entry dated 26.9.2001, a black ink entry was inflicted on 10.9.2007 that is, after about six years and during the said period of six years there is nothing on record to show that there was any misdemeanour or misconduct on the part of the petitioner. Besides, on 10.09.2007 a black ink entry was awarded and not a red ink entry. It is the imposition of red ink entries, which were to be taken into consideration in the decision making process. These and others relevant factors were liable to be taken into consideration in the decision making process which have indeed not been adverted to. The questions regarding the relevant material and factors being taken into account in the decision making process were not raised before the Armed Forces Tribunal and neither were these adverted to. Therefore, the order of the Tribunal on this count is unsustainable.
For the foregoing reasons, the order dated 8.10.2008 (Annexure P5) passed by the Brig. Commander and the order dated 26.5.2011 (Annexure P8) are unsustainable and are liable to be quashed. However, that would not mean that this Court cannot mould the relief to which the petitioner is entitled. The facts and circumstances in the present case would not warrant that the petitioner should be reinstated in service, but he should be given the benefit of pension which would have accrued to CWP No. 6991 of 2012 (O&M) [25] him had he continued in service but for the impugned order dated 8.10.2008 (Annexure P5). Therefore, the relief to which the petitioner is entitled to can be moulded by this Court and instead of ordering his reinstatement in service, the alternate prayer for grant of pensionary benefits would meet the ends of justice by regularizing the remaining period of service for and retiral pensionary benefits due by treating the period of about one year and four days as leave of the kind due.
Accordingly, the writ petition is allowed and the order dated 8.10.2008 (Annexure P5) passed by the Brig. Commander and the order dated 26.5.2011 (Annexure P8) passed by the Armed Forces Tribunal shall stand quashed. However, the petitioner shall not be taken back into service but the period of during which he has remained out of service shall be treated as leave of the kind due and he shall be given his pensionary and other retiral benefits that accrue to him under the Pension Service Regulation applicable in accordance with law.
(S.S. SARON) JUDGE (S.P. BANGARH) JUDGE April 12, 2013 Amit Note : Whether to be referred to the Reporter or not: Yes / No.