IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1544 /2007 Reserved on: 3.11.2008 Decided on: 10.11.2008 Virender Kumar. …Petitioner. Versus Union of India and others.. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Rajiv Jiwan, Advocate. For the Respondents : Mr. Ravinder Thakur, Central Government Counsel. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner was enrolled in the Indian Army on 15.3.1985. He was discharged from the service on 13.12.1998. He made representations to the authorities for the release of family pension and disability pension. His case was turned down by the PCDA (P), Allahabad on 18.6.1999/1.7.1999. This decision was conveyed to the petitioner on 17.7.1999. It appears from the record that the wife of the petitioner made a representation for the release of service/disability element claim on 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 behalf of her husband. She was conveyed the decision on 24.3.2000. She was conveyed that PCDA (P), Allahabad had stated that the individual had been discharged being an undesirable and inefficient soldier before completion of service tenure under Army Rule 13 (3) (III) (v) as such his disability/ service element claim was not tenable. The same ground was conveyed to the petitioner on 7.7.2003. The entire record makes an interesting reading. In the discharge book Annexure P-1, at page 17, the reason for release/discharge/dismissal is ‘inefficient soldier’. At page 18, it is mentioned that he was put in medical category CEE (P), however, in the reply, the ground for the discharge of the petitioner from service is ‘undesirable soldier’. In the discharge certificate the reason for his discharge is unsuitable/inefficient soldier. It has been specifically averred in the petition that the respondents have violated the principles of natural justice while discharging the petitioner on 13.12.1998. The principal stand of the respondents in their reply is that the petitioner was issued show cause notice vide letter No. 16026/I/A-2 dated 8.5.1998. The petitioner had submitted reply to the same on 23.8.1998. Thereafter, he was discharged and the representations made by him were rejected. Mr. Rajiv Jiwan has strenuously argued that the discharge of his client is in violation of the mandatory procedure for the removal of undesirable and inefficient JCOs/WOs and OR dated 28.12.1988. His further contention is that no inquiry whatsoever was held against the petitioner and he has been discharged even without taking into consideration the reply furnished by his client on 23.8.1998. Mr. Ravinder Thakur has supported the order of discharge dated 13.12.1998. I have heard the learned counsel for the parties and perused the record carefully. 3 During the course of hearing, the Court had directed the respondent-Union of India to produce the entire record. The record was produced by Mr. Ravinder Thakur. Mr. Rajiv Jiwan was also permitted to go through the record. He sought time on 23.10.2008 to file supplementary affidavit after perusing the record. He has filed the supplementary affidavit on 30.10.2008. He has annexed the copy of the procedure for the removal of undesirable and inefficient JCOs/WOs and OR with the supplementary affidavit. It will be apt at this stage to take stock of letter dated 28.12.1988. The notification is in two segments: JCO/WOs and OR who are proved undesirable and procedure for discharge of inefficient JCOs/WOs/Ors. Para 4 and 6 of the letter dated 28.12.1988 read thus: “4. AR 15 and 17 provide that a JCOs/WOs/Ors whose dismissal or discharge is contemplated will be given a show cause notice. As an exception to this, services of such a person may be terminated without giving him a show cause notice provided the competent authority is satisfied that it is not expedient or reasonable practicable to serve such a notice. Such cases should be rare, e.g. where the interests of the security of the State so require. Where the serving of a show cause notice is dispended 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 following for dismissal or discharge of a person under AR 13 or AR 17, 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 necessary) 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. 4 (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 recommendations 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. 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 show cause notice be issued to the individual in accordance with AR 13 of 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 proceedings 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 5 held in the case and recommendations of each forwarding authority as to the disposal of the case. (f) Final orders by the Competent Authority. 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 requirements of the case. If the competent authority considers that termination of the individual’s service is not warranted but any of the actions referred to in (b) to (d) of Para 2 above would meet the requirement of the case, 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 legal requirement. In such cases, commanding Officer must consider the nature of offence for which each red ink entry has been awarded and not be harsh with the individual especially when they are about to complete the pensionable service. Due consideration should be given to the long service, hard stations and different 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. (g) Carrying out Dismissal/Discharge. On receipt of the orders of the competent authority for 6 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. 6. Such JCO, WO and OR will remain with their unit and will be dealt with as in paras 4 and 5 above in so far as it relates to discharge from service.” It is evident from the combined reading of paras 4, 5 and 6 that a detailed procedure has been laid down required to be followed for dismissal or discharge of a person under AR 13 or 17, as the case may be. The first step required under para 5 is that an impartial inquiry is to be made into the allegations against a person and he has to be afforded reasonable opportunity to put up his defence or explanation and also to adduce evidence in his defence. Thereafter the allegations are required to be substantiated and the extreme step of termination of the individual service is to be taken if warranted on merits. Thereafter the recommendations for dismissal or discharge are to be forwarded to the authority competent to authorize the dismissal or discharge as the case may be along with the copy of the proceedings of the inquiry. The competent authority has to take the action under sub para (d) of para 5. If the authority is satisfied that the termination of the individual is warranted, he would direct that a show cause notice be issued to the individual in accordance with AR 13 and 17, as the case may be. No lower authority can direct the issuance of show cause notice. The show cause notice is required to cover the full particulars of the cause of action against the individual. The copy of the proceedings of the inquiry held in the case is also required to be supplied to the individual and he is to be afforded time to state in writing any reasons he may have to urge against the proposed dismissal or discharge. The authority as per para (f) of para 5 before sanctioning the dismissal/discharge of the individual is required to 7 reconsider the case in the light of the individual’s reply to the show cause notice. It is only thereafter that the termination of the individual can be effected. It is clear from the bare perusal of para 6 of the letter dated 28.12.1988 under heading “procedure for discharge of inefficient JCOs/WOs/ORS” shall remain with their unit and are to be dealt with as provided in paras 4 and 5 in relation to discharge from service. Mr. Ravinder Thakur has also placed on record communication dated 8.8.2008 alongwith letter dated 8.9.2008 and 28.12.1988 and the discharge order of the petitioner. In the discharge certificate annexed with this communication reason assigned is ‘ unsuitable/inefficient soldier and discharged from service under section 20 of the Army Act and Rule 13 of the Army Rules. There are three different reasons assigned for discharge of the petitioner. In Annexure P-1 the reason for the discharge is “inefficient soldier”. In the reply filed on affidavit, the reason for discharge is “undesirable solider”. In discharge certificate filed along with the communication dated 8.10.2008 by Mr. Ravinder Thakur, the reasons assigned is “unsuitable/inefficient soldier”. It is in this backdrop that the case of the petitioner is required to be adjudicated upon. It is evident from the procedure laid down that a preliminary inquiry is required to be held against the individual to look into the allegations made against him. He is required to give ample opportunity to defend himself and to adduce evidence. The copy of the inquiry report thereafter is required to be forwarded to the competent authority and the action is to be taken by the competent authority after receipt of the same. The competent authority, as noticed above, has to issue show cause notice to the individual. The final orders can be passed by the competent authority only after going through the reply to the show cause notice. In the present case, the respondents have not placed on record any material suggesting 8 that preliminary inquiry as per law was held against the petitioner. The procedure prescribed is mandatory and there could not be any violation or departure from the same while dealing with the important issue touching discharge/dismissal. The procedure for discharge of ‘inefficient soldier’ is also the same which has been prescribed for dismissal/discharge of “undesirable” JCO/WOs and OR. The petitioner herein has also been issued with a show cause notice dated 8.5.1998 to which he had filed the reply on 23.8.1998. There ought to have been preliminary inquiry where the petitioner was to be afforded reasonable opportunity to defend himself and to adduce evidence. It was only if the competent authority was satisfied that the action was warranted and thereafter the show cause notice was required to be issued to the petitioner. The final order could be passed after taking into consideration the reply to the show cause notice furnished by the individual. The authorities have issued show cause notice to the petitioner on 8.5.1998 without there being any inquiry. This procedure is not permissible. Even his reply dated 23.8.1998 has not been taken into consideration before discharging him on 13.12.1998. The case has been defended by the Union of India in a very slipshod manner. There is variance in three documents, as noticed by the Court while discharging the petitioner, however, the fact of the matter is that whether the petitioner has been discharged being “inefficient” or “unsuitable” or “undesirable”, the mandatory procedure laid down in letter dated 28.12.1988 has not been followed. There is violation of principle of natural justice. Once the procedure has been laid down, the same has to be followed scrupulously. The discharge order dated 13.12.1998 without following the procedure laid down in letter 28.12.1988 is void ab initio. Consequently in view of the observations made hereinabove, the writ petition is allowed. The discharge order dated 13.12.1998 is quashed 9 and set aside. The petitioner shall be deemed to be in service with all the consequential benefits. Necessary consequential steps shall be taken by the Union of India within six weeks from today. There will, however, be no order as to costs. 10.11. 2008 (Rajiv Sharma ), J. *awasthi*