R.S.A. No. 3195 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3195 of 2007 (O&M) Date of decision: 21.1.2009 Union of India and others ....Appellants Versus Ram Parkash ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Ms. Renu Bala Sharma, Advocate, for the appellants. Mr. R.A. Sheoran, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal by Union of India is directed against the judgments and decree dated 28.5.2005 and 13.3.2007 passed by the learned Courts below vide which the suit for declaration filed by the plaintiff/respondent stands decreed. The plaintiff/respondent brought a suit for declaration claiming therein that the order of discharge dated 31.1.1997 was illegal, null and void and not binding on the rights of the plaintiff/respondent. Consequential relief of mandatory injunction was also sought for allowing him to complete his pensionable service or in the alternative proportionate pension was claimed. The plaintiff joined the Army Medical Corps on 20.6.1984 as Barber and served at various places. The plaintiff claimed that he had fallen ill, during the course of his duty in 1986, and was admitted in Air Force Hospital, Bangalore for treatment where he was declared a case of neurosis and was medically down-graded. He recovered from the R.S.A. No. 3195 of 2007 (O&M) -2- illness in 1990 and was again medically upgraded. The plainitff claimed that he was charged on the ground that during his tenure he was involved in an act of moral turpitude. However, he was discharged from service as undesirable soldier on 31.1.1997 in violation of the directions of Army Headquarter letter No. A/13210/159/AG/PS-2(C) dated 28.12.1988, without conducting preliminary inquiry. He further claimed that he had been illegally debarred from completing his pensionable service. The plaintiff challenged the order of discharge, also on the ground that the appeal filed by him against discharge was placed before the same officer who sanctioned his discharge instead of officer next higher in hierarchy, thus it prejudiced his case. He filed an appeal before the Chief of Army Staff. However, no decision was taken thereon and thus after issuance of notice under Section 80 CPC, suit was filed. Notice of the suit was given to the defendants, who filed joint written statement wherein a plea was taken that the plaintiff/respondent was awarded as many as six punishments and red entries were made in his service record. It was in view of the conduct of the plaintiff/respondent that he was discharged after following due procedure. The stand taken by the appellant/defendants as noticed in the trial Court judgment reads as under: - “It has been maintained by the defendants that the plaintiff was not a disciplined soldier and has been rightly discharged from the service. It has been further maintained by the defendant that before discharging the plaintiff from service, a preliminary enquiry was conducted by the unit for evaluating the case of the plaintiff for disposal as undesirable soldier in terms of Army HQ letter No. A 13210/159/AG/PS 2 (c) dated 28.12.1988. It has been further maintained by the defendant that the instructions which have R.S.A. No. 3195 of 2007 (O&M) -3- been contained in the said letter have been strictly followed and the plaintiff was discharged from service as undesirable soldier on 30.1.1997 (AN) after following the due legal process and after issuance of show cause notice to him and by obtaining sanction of competent authority on IAFY-1948A Roll of JCOs/OR (soldier). It has been maintained by the defendant that no injustice has been caused to the plaintiff. Broadly, on these assertions, the defendant has prayed for dismissal of the suit.” After the filing of replication, the learned trial Court framed the following issues: - “1. Whether the order dated 30.1.97 for discharge of plaintiff from service is illegal, void without jurisdiction and against the rules and same is liable to be set aside on the grounds mentioned in the plaint? OPP 2. Whether the order passed by the same officer against the order dated 30.1.97 is against the principle of natural justice, illegal, liable to be set aside on the grounds as mentioned in the plaint? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the civil court has no jurisdiction to try the suit? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the plaintiff has filed the present suit by his own act and conduct? OPD 7. Whether the suit is barred by limitation? OPD 8. Relief.” The learned Courts on appreciation of evidence brought on record recorded a concurrent finding of fact that order of discharge dated 30.1.1997 was illegal, void and without jurisdiction, as it was against rules, thus liable to be set aside in view of the grounds raised in the plaint. Issue No. 1 was decided in favour of the plaintiff/respondent Issue No. 2 was also decided in favour of the plaintiff/respondent. Issue Nos. 3 to 7 were decided against the R.S.A. No. 3195 of 2007 (O&M) -4- defendant/appellants as these were not pressed. Consequently, the suit was decreed. The learned Court decreed the suit by observing as under: "Although the enquiry proceedings have not been marked nor exhibited and it would be referred as preliminary enquiry because a perusal of the enquiry report reveals that this enquiry was conducted in the absence of the plaintiff and nor any opportunity was given to him for producing his evidence. At this stage, reference is made to the statement of DW1 S.S.Pillai, who has categorically admitted during cross- examination that the mandatory directions which have been contained in letter Ex.D7 (supra) have not been followed in the present case and the enquiry had not been conducted in the presence of the plaintiff nor he has been given the opportunity to put questions nor he had been given the opportunity to produce his defence. The categoric admission made by S.S.Pillai leads to the only inference that practically no enquiry had been conducted at all and subsequently an eye- wash has been done by preparing the preliminary enquiry report and since the enquiry has not been conducted by following legal procedure and hence, it cannot be said to be legal enquiry at all. It has also been mentioned in clause 5 sub clause (d) of the letter (supra) that the authority competent to authorize the dismissal or discharge of the individual is satisfied that the termination of the individual service is warranted, then 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 and no lower authority will direct the issue of a show cause notice and in this manner reference has also been made to AR 17 and during the arguments, Ld. Counsel for the plaintiff has also referred the aforesaid rule, wherein it has been maintained that whenever any official is removed or dismissed from the service by the Chief of Army Staff or by other officer on the ground of conduct which has led to his conviction by a criminal court or a court- martial, then he has to be informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service and if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicable to comply with the provisions of the rule, he may, after certifying to that effect order of dismissal or removal without complying with the procedure set out in this rule and all the cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the central Government. A perusal of AR 17 reveals that although this power has been given R.S.A. No. 3195 of 2007 (O&M) -5- to Chief of Army Staff and to other officers but in that eventuality special reasons have to be assigned by the discharging authority and those proceedings are to be reported to the Central Govt., but here in the present case, no such proceedings have been placed on file by the defendants, which could establish that the proceedings of the present case had been reported to the central Govt. as due procedure has not been followed in the present case and as such requirements of AR 17 have not been complied before discharging the plaintiff from the service. In totality of the circumstances, which have been discussed above, this court has come to the conclusion that the discharge order cannot be held to be sustainable at all. Another hardship which has been done with the plaintiff in the present case is that the appeal filed by the plaintiff had been decided by the same officer, who had passed the order of discharge, which is against equity and judicial ethics as it is settled preposition of law that appeal should not be heard by same officer, who has passed the punishment order. On this count, as well, injustice has been done with the plaintiff. At this stage, it would also be appropriate to mention that at least the plaintiff should not have been discharged from service when he was just going to complete his pensionable service in near future as the guidelines have been contained in letter Ex.D7 with regard to the discharge of an official from the Army services and those guidelines are reproduced in verbatim as under: - 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 or offences 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 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 high commander. In view of the guidelines, which have been referred to above the discharge of the plaintiff from the Armed forces cannot be held to be legal as commanding officer should have considered this fact in his mind that the plaintiff was going to complete his pensionable service in the near future after serving the Armed forces for more than period of 12 years and in the present case, due consideration has not been given to long service, hard and difficult living condition of the R.S.A. No. 3195 of 2007 (O&M) -6- plaintiff and in the totality of circumstances, this court has come to the conclusion that the discharge order is not sustainable at all and the punishment which has been awarded to plaintiff is highly disproportionate to the act and conduct of the plaintiff and accordingly discharge order is set aside. During the arguments, Ld. Counsel for the plaintiff has referred to ratio of law reported in 2003(1) SCT 697 Surinder Singh Sihag Vs. Union of India wherein it has been observed by Hon'ble High Court that before taking any action against the Army official, a reasonable opportunity has to be granted to put forth his case in compliance of the procedure establishment by law and in case a compelte go bye is given in compliance of the procedure then discharge cannot be sutained at all. Ld. Counsel for the plaintiff has further referred the law reported in Ex-Havildar Roop Singh Vs. General Officer Commanding etc. 2004(2) SCT 901 wherein it has been held that dismissal from Army service without notice and enquiry cannot be held to be legally sustainable and mere seriousness of allegations would not clothe the competent authority with a sweeping power to act de hors the statutory rule and the procedure prescribed under rule 17 for dispensing with the show cause notice and enquiry must be followed failing which order of dismissal cannot be sustained. The facts of the present case are squarely covered which has been referred to above as in the present case, almost complete go bye has been given to the procedure followed by law as the enquiry which has been conducted in the present case is simply an eye- wash and cannot be considered to be a legally conducted enquiry. During the arguments, Ld. Counsel for the plaintiff has further referred to ratio of law reported in Amar Nath Choudhary Vs. Braithwaite and Co. Ltd. 2002(1) SCT 845 wherein it has been held by Hon'ble Apex Court that no person should become the judge of his own cause and this doctrine is based on the basic principle of natural justice and justice should not only done it must seem to be done. It has been further observed by Hon'ble Apex Court that punishing authority is disqualified from becoming a part of process of taking a decision in appeal against his order any stage and this is to eliminate any apprehension of bias in the mind of the appellant and participation of such person at appellate stage vitiates the appelalte order which cannot be sustained. The facts of the present case are squarely covered which has been referred to above and in this case, appeal has been decided by the same authority, who had passed the punishment order and in view of the observations made by the Hon'ble Apex Court in the authority (supra) this court has come to the conclusion that a great prejudice has been caused to the plaintiff in the present case because the appeal has been decided by the punishing authority. In the R.S.A. No. 3195 of 2007 (O&M) -7- totality of the circumstances, which have been discussed above, issue no.1 and 2 are decided in favour of the plaintiff and discharge order Ex.P2 is hereby set aside being arbitrary." The findings recorded by the learned trial Court stand affirmed by the learned lower appellate Court. The learned counsel appearing on behalf of the appellants vehemently contends that the judgments and decree passed by the learned Courts below are liable to be set aside as it is outcome of misreading of pleadings and evidence brought on record, and therefore, perverse. In support of this contention, reliance has been placed on the judgment of this Court in Mohinder Singh Vs. Union of India and others CWP No. 3109 of 2007 decided on 14.12.2007. This Court in Mohinder Singh Vs. Union of India and others (supra) dismissed the writ petition in view of the following facts: - “During his engagement in DSC, the petitioner was given four red ink entries; two on account of absent without leave; one on account of over stay during leave and one on account of intoxication. The Commanding Officer of the petitioner recommended the discharge of the petitioner in terms of Rule-13 of the Army Rules, 1954. On the basis of such recommendation, the Brigade Commander issued a show cause notice to the petitioner on 24.10.2003, Annexure P-3, directed him to explain as to why his services be not terminated being undesirable for retention. After considering the reply of the petitioner, an order dated 20.12.2003 for discharge of the petitioner was passed by the competent authority vide Annexure P-5, holding that the petitioner was not fit to work in DSC.” Thus, it would be seen that in the case of Mohinder Singh Vs. Union of India and others, proper procedure as per instructions was duly followed. Appellant/defendants in the present case have failed to produce on record any evidence showing that preliminary inquiry was held, nor they were able to prove on record the notice said to have been R.S.A. No. 3195 of 2007 (O&M) -8- issued by the competent authority before accepting inquiry report. Thus, concurrent findings of fact recorded by the learned Courts below on appreciation of evidence cannot be challenged in regular second appeal. The appeal thus, raises no substantial question of law for consideration by this Court. No merit. Dismissed. However, it is made clear that this order shall not debar the appellants from taking appropriate action against the plaintiff/respondent in accordance with law. (Vinod K. Sharma) Judge January 21, 2009 R.S.