IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3310 of 2009 SHIV KUMAR JHA, S/O SRI HARI SHANKAR JHA, R/O VILLAGE PALI, P.S. GHANSHYAMPUR, DISTRICT DARBHANGA. ............PETITIONER. Versus 1.THE UNION OF INDIA THROUGH THE SECRETARY , MINISTRY OF DEFENCE, NEW DELHI. 2.THE CENTRE COMMANDANT, BIHAR REGIMENTAL CENTRE, DANAPUR, BIHAR. 3.THE CHIEF RECORDS OFFICER, BIHAR REGIMENTAL CENTRE, DANAPUR CANTT., BIHAR. 4.BRIGADIER, BINOY POONNEN, COMMANDER HQ. 181, MTN. BRIGADE, PIN 908181. 5.COLONEL SANJAY KHANNA, COMMANDING OFFICER, 2. BIHAR, BIHAR REGIMENT, C/O 99 APO. ...........RESPONDENTS. ----------- 04/ 05.05.2011 Heard counsel for the petitioner and counsel for the Government of India representing Army authorities. In this case petitioner while assailing the order dated 17.03.2008, whereby and whereunder he has been discharged from service in Armed Force on the ground of misconduct has also prayed for consequential relief for his reinstatement in service with full back wages. Learned counsel for the petitioner at the outset had tried to impress upon this Court that the aforesaid impugned order dated 17.03.2008, discharging the petitioner from service was in complete violation of the principles of natural justice, inasmuch as, 2 when the show cause notice was issued to the petitioner on 10.03.2008, giving him time till 25.03.2008 to submit his reply, no order of punishment by way of discharge could have been passed against him on 17.03.2008.Interestingly this aspect being a pure question of fact has not even been raised in this writ application but the respondents have themselves explained the same by furnishing the details in the counter affidavit, wherein, it has been stated that the petitioner was given the following show cause notice on 10.03.2008:- “CONFIDENTIAL” HQ.181 Mtn Bde PIN- 908181 C/O 99 APO 1851/A 10.03.2008 NO. 4276366N NK Shiv Kumar Jha 2 BIHAR. C/O 99 APO. SHOW CAUSE NOTICE 1. During ten years and three months of your service. You have been awarded the following punishments:- Type of offence Punishment Awarded Remarks (a). AA Sec 39(a) on 07 Oct 1999 28 days FI and 14 days pay fine Red Ink (b).AA Sec 39(a) on 25 Apr 2001 07 days RI and 07 days pay fine Red Ink 3 (c).AA Sec 57(c) and AA Sec 39 (a) on 20 Jul 2001 07 days RI and 07 days pay fine Red Ink (f) AA Sec 39(a) on 11 Jan 02 03 days pay fine Black Ink (f) AA Sec 46 on 03 Mar 08 Severe Reprimand Red Ink 2. Inspite of repeated punishments, you have failed to improve your conduct. In view of your poor discp, your further retention in the Army is considered undesirable. Before ordering you disch, you are hereby given an opportunity to 'Show Cause' as to why your service should not be terminated. 3. Your reply should reach this HQ by 25 Mar 2008, failing which action as contemplated above will be taken. sd/- (Binoy Poonnen) Brig. Cdr. II Received (Show Cause Notice) issued by the Cdr 181 Mtn Bde on 11 Mar 08. Dated: 11 Mar 2008 ( Shiv Kumar Jha ) COUNTERSIGNED No.4276366N Nk Shiv Kumar Jha. CONFIDENTIAL Col Sd/- Sd/- Commanding Officer Adjutant 2nd Bn The Bihar Regt 2nd Bn The Bihar Regt It is significant to note here that the petitioner having received the aforesaid show cause notice dated 11.08.2008 had also submitted his reply on 14.03.2008 reading as 4 follows:- lSU; la[;k 4276366 ,u uk;d f”ko dqekj >kW f}rh; cVkfy;u] fcgkj jsftesaV fiu & 910502 ekQZr & 99 lsuk Mkd?kj 14 ekpZ 2008 Jheku~ dekUMj egksn; 181 ioZrh; fczxsM ekQZr 99 lsuk Mkd?kj }kjk & fu/kkZfjr iz.kkyh fo’k; & dkj.k crkvks uksVhl ds lEcU/k esa A egksn;] 1- vkids i= la[;k 1851@A fnukad 10 ekpZ 2008 ds lanHkZ esaA 2- fouez fuosnu gS fd eSa cVkfy;u esa yxHkx nl o’kksZa ls dk;Zjr gw¡ A dbZ xyfr;ksa ds dkj.k eq>s dbZ ckj ltk gks pwfd gS vkSj vc eq>s lSU; lsok ls fudkyk tk jgk gS A 3- Jheku~ ls fuosnu gS fd esjh lHkh xyfr;ksa dks ekQ djrs gq, eq>s lsuk esa lsokjr jgus dk ,d ekSdk fn;k tk; A vc eSa fdlh izdkj dh xyrh ugha d:¡xk A 4- bl egku dk;Z ds fy, eSa Jheku~ th dk lnk vHkkjh jgw¡xk A vkidk fo”oklh lSfud g0@& uk;d f”ko dqekj >kW lSU; la[;k 4276366 ,u From the reading of the aforementioned show cause reply it is clear that the petitioner had unequivocally admitted his guilt and had prayed for condoning all his lapses for being allowed to continue in the service of the Armed Forces. In such a situation, the petitioner cannot complain of violation of the principles of natural justice nor he can even demand for an inquiry, inasmuch as it is well settled that once the delinquent would admit the charges there would be no scope of holding any departmental inquiry. Reference 5 in this connection may be made on a Division Bench judgment of this Court in the case of Girija Nandan Singh vs The State of Bihar and Ors reported in 1987 PLJR 95. As a matter of fact, once the petitioner had admitted his guilt in reply to the show cause notice dated 11.03.2008 by filing his aforementioned reply on 14.03.2008, the order of discharge could have been passed on any date prior to 25.03.2008, inasmuch as, the petitioner did not seek any further opportunity to put forward any defence by way of further opportunity before the Disciplinary Authority. The submission of learned Counsel for the petitioner that since the competent authority had passed the order of discharge even before 25.3.2008 that by itself vitiate the whole order because the last date for filing sow cause reply by the petitioner was upto 25.3.2008 also has to be only noted for its being rejected. The date of 25.03.2008, as mentioned in the show cause notice was the outer limit in which the petitioner could have filed his show cause reply but when the petitioner himself had completed his action of submitting his show cause reply on 14.03.2008 6 without demanding any further opportunity for filing any further explanation, no error can be said to have been committed by the Disciplinary Authority in passing the final order before 25.03.2008 and to that extent the impugned order of discharge of the petitioner from service on 17.03.2008 does not suffer from any error. This Court for satisfying itself has also examined the records annexed with the counter affidavit filed by the respondents from which it is clear that after the show cause reply was filed by the petitioner on 14.03.2008, the matter was placed before the Commanding Officer who had after examining the show cause reply filed by the petitioner recorded that retention of the petitioner in service could not be recommended and the petitioner was fit to be discharged from service. In the light of the same recommendation the impugned order of discharge of the petitioner from Armed Force Service was passed by the competent authority on 17th of March, 2008 as contained in Annexure-R-6, in terms of Army Rule 13 item III (V), on the ground of his being undesirable to be retained 7 in the services of the Armed Forces. Thus the plea of violation of the principles of natural justice as raised by the learned counsel for the petitioner cannot be sustained. At this juncture, it would be also relevant to note yet another plea developed by the petitioner as with regard to his being unaware of the order of discharge dated 17.03.2008, inasmuch as, it has been stated in the writ petition that the petitioner was forcibly made to leave his place of posting without intimating him the order of discharge and that he was given railway warrant with railway ticket to go back to his native village on 18.03.2008. In the considered opinion of this Court even this plea of the petitioner is unsustainable, inasmuch as, the format of discharge order dated 17.03.2008 duly signed by the competent authority being the Birgadier of the command itself contains three specimen signature of the petitioner for the purposes of payment of pension and gratuity as per the Army Rules. The petitioner who has put his signature in English in the discharge order, therefore, cannot be heard to say that he was not aware of the discharge order of 17.03.2008 in which it 8 was clearly mentioned that such discharge was on account of his unsatisfactory service record and in terms of Army Rule 13 item III(V). Thus all the plea developed by the petitioner after being discharged either in the form of his first letter of protest dated 05.04.2008 requesting for a reconsideration and being retained in service cannot be said to be a show cause reply on behalf of petitioner to the show cause notice dated 11.03.2008. The representation sent by the petitioner in the month of April-2008 or the legal notice sent through his lawyer in the month of June-2008 were in fact only by way of an after thought, inasmuch as, those pleas were never raised by the petitioner when he had filed his show cause reply on 14.03.2008 while accepting his guilt and in fact also giving his undertaking not to repeat such misconduct in future. It has to be also kept in mind that the petitioner was not an ordinary civilian on whom mercy could be bestowed even after repeated acts of his misconduct. Such serious charges of being absent from duty without leave, falsifying official documents and intoxication since from very beginning of his service as 9 duly reflected from his chequered service record wherein he had been awarded with four red ink entries and one black entry in between 07.10.1999 to 03.03.2008 would leave nothing for speculation that the petitioner was totally unfit to be retained in service of armed forces, being an undesirable soldier whose retention in maintenance of the Armed forces could have become detrimental to the discipline amongst his fellow soldiers. Faced with this situation learned counsel for the petitioner has contended that the aforementioned reply of the petitioner dated 14.03.2008 was written by him under duress and on account to the doubt to the malafide action on the part of Colonel Surinder Moonga. This plea of malafide however having been not raised in the show cause reply filed by the petitioner would hardly inspire any confidence specially when Colonel Surinder Moonga has also not been impleaded as respondent to this writ petition. It is well settled that the plea of malice on fact in a writ petition cannot be gone into in absence of the person concerned. It is well settled that the person against whom personal mala fides or 10 'malice in fact' is imputed should be impleaded eo nomine as a party respondent to the proceedings and he should be afforded opportunity to meet with those allegations. In his absence, no enquiry into the correctness or otherwise of the allegations can be made. The reason is very simple. The principles of natural justice require that no person should be condemned unheard. Now if allegations have been made against a person who is not made party to the proceedings and the court proceeds on the basis of those allegations, the person against whom such allegation have been leveled is condemned unheard. Reference in this connection may be made to the judgment of Apex Court in the cases of State of Bihar V. P.P. Sharma reported in 1992 Supp(1) SCC 222, State of Punjab V. Chaman Lal reported in (1995)2 SCC 570, J.N. Banavalikar V. Municipal Corporation of Delhi, reported in 1995 Supp.(4) SCC 89, All India State Bank Officers' Federation V. Union of India reported in (1997) 9 SCC 151 and I.K. Mishra Vs. Union of India reported in (1997) 6 SCC 228. Additionally, this Court would find that the entire service career and the service 11 records of the petitioner was chequered, inasmuch as, he had consistently been found guilty of offences on as many as five occasions for which he was also punished with various period rigorous imprisonment and fine as fully explained in the show cause notice. A person employed in Armed Forces with a such chequered service history was definitely not fit to be retained in service. Admittedly, the petitioner was not continuously working under Colonel Surinder Moonga in the span of 10 years of his service in which he is said to have committed various offences leading to five separate orders of punishment dated 07.10.1999, 25.04.2001, 20.07.2001, 11.01.2002 and 03.03.2008 and thus the plea of bias against Mr. Moonga being also subsequent defence created by the petitioner can also even otherwise be not accepted inasmuch as more often then not such plea of malafide is the last plank of a losing litigant. That being so there is no merit in this writ application and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) 12 Ranjan