L.P.A. No. 173 of 2008 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No. 173 of 2008 (O&M) DATE OF DECISION: 13.7.2009 Ex. No. 14354863 K GNR (GD) Suresh Chandra Pandey ..........Appellant Versus Union of India and others ..........Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Bhim Sen Sehgal, Advocate for the appellant. Ms. Anjali Kukkar, Advocate for UOI. **** ADARSH KUMAR GOEL, J. (Oral) 1. This appeal has been preferred against the order of learned Single Judge, whereby writ petition of the appellant was partly allowed. 2. The appellant was recruited as a Sepoy in the Army on 15.11.1980. In the year 1987, he was given promotion to the rank of Lance Naik. 3. The impugned order dated 5.5.1994 discharging him from service was passed on the ground that he had three red entries (orders of punishments) during his service career. The first red entry is dated 28.5.1981 for overstaying leave. For the said default, he was given RI for 28 days. Second punishment was imposed on 6.5.1992 for shouting during roll call. Third punishment was imposed on 5.6.1992 for absence for thirty minutes and for this default, he was awarded RI for seven days. Another punishment given was on 28.6.1992, for directly representing to the Authorities. For similar default, vide order dated 9.7.1993, he was awarded L.P.A. No. 173 of 2008 (2) 10 days' RI. Out of the said punishments, order of punishment dated 28.6.1992 (for directly representing to higher authorities) was expunged. Show Cause Notice dated 13.7.1993 was given to him, which was actually never served. However, case of the Authorities was that the appellant refused to acknowledge the notice. Thereafter the impugned order was passed. Contention raised before the learned Single Judge was that some of the punishments were imposed upon the appellant on account of enmity of CEO Lt. Col. Y.N. Murthy. No Show Cause Notice was served upon him and the order of discharge was stigmatic, which could not be passed without giving an opportunity of hearing. The first punishment was stale, while subsequent punishments were for trivial reasons. Learned Single Judge held that to the extent the order debarred the appellant for future employment and made the discharge retrospective, the same could not be sustained. It was further held that no inquiry was required since the order was not of removal or dismissal but only of discharge. 4. Learned counsel for the appellant submitted that the appellant had rendered almost 13 years of service, and in such a situation, he should at least have been given an opportunity of hearing. He would have been entitled to pension on completing 15 years service. The punishment was harsh, which does not take into account the nature of allegations and long service put in by the appellant. The Show Cause Notice was treated to have been served during the period, the appellant was in military custody. 5. Learned counsel for the respondents submitted that the Army being a disciplined force, has its own rules. The appellant having got first red entry in the first year of his training and there being three punishments later, the order of discharge could be passed. 6. We have considered the rival submissions 7. Sequence of facts noted above clearly shows that the allegation of overstaying leave was during the first year and thereafter the L.P.A. No. 173 of 2008 (3) appellant was given promotion and he had rendered more than 12 years of service. During the said period of 12 years, only allegation is of shouting during roll call or absence for 30 minutes or representing to authorities, which could hardly call for such harsh view as has been taken. The appellant had already been given other punishments. On completion of 15 years of service, he would have been entitled to pension. He had already worked for 13 years. 8. While normally this Court may not interfere with the orders of Army Authorities in disciplinary matters as under our constitutional scheme, fundamental rights, in their application to members of Armed Forces, can be restricted under Article 33. Still, persons subject to Army Act are also citizens of this Country and there is no bar to judicial review if action of an authority is irrational or illegal. Reference may be made to judgments of the Hon'ble Supreme Court in UOI Vs. Major A. Hussain 1998 (1) SCC 537 and Prithi Pal Singh Vs. UOI, AIR 1982 SC 1413. 9. In view of above, we are of the view that punishment of discharge from service was harsh and disproportionate to the allegations levelled. 10. We, therefore, direct that the matter may be reconsidered by the General Officer Commanding, Headquarters Western Command, Chandimandir, who is said to be the competent authority, to review the matter, within two months from the date of receipt of a copy of this order. 11. The appeal is disposed of accordingly. (ADARSH KUMAR GOEL) JUDGE July 13, 2009 (DAYA CHAUDHARY) pooja JUDGE Note:-Whether this case is to be referred to the Reporter .......Yes/No L.P.A. No. 173 of 2008 (4)