IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1319/2007 Reserved on: 6.5.2008 Decided on.3.7. 2008 Sunil Chand Katoch. …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. Tarlok Chauhan, Advocate. For the respondents : Mr. Janesh Mahajan, Central Government Counsel. Rajiv Sharma, J. The brief facts necessary for the disposal of this writ petition are that the petitioner joined the Indian Army on 19th September, 1977. He was placed in permanent low medical category ‘BEE” on 29th October, 1995. He was promoted to the post of Naib Subedar on 1st August, 1996 and Subedar in September, 1999. He was served upon with a pre-mature discharge order dated 14th June, 2002. The Officer Commanding informed the OIC Records on 26th June, 2002 that though the petitioner was placed in low medical category, he was doing well in the organization and as such his retention may be considered for his remaining service of 2 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 years and 9 months so that he may be able to complete 28 years of service. The same recommendation was reiterated by the Officer Commanding vide letter dated 9th July, 2002. The Officer Commanding vide letter dated 24th July, 2002 had informed the Records 39 GR that discharge order dated 14th June, 2002 was not in conformity with law. The queries raised by the Commanding Officer were not addressed to and instead the Officer Commanding was requested to issue show cause notice to the petitioner vide communication dated 30th July, 2002. He was informed vide show cause notice dated 2nd August, 2002 that he will be discharged (SOS) from army service with effect from 1st December, 2002. It was specifically mentioned therein that he was discharged being placed in low medical category SIHIAIP2EI (permanent) and his further retention in service was not considered necessary as per rules 13 (3) 1 (iii) and 13 (2-A). He submitted reply to the show cause notice on 3rd August, 2002. The query raised by Officer Commanding on 24th July, 2002 was replied by the OIC Records on 10th August, 2002. The Officer Commanding informed the OIC Records on 21st September, 2002 reiterating the earlier stand that the discharge of the petitioner was not in conformity with law. He sent a notice to the Secretary, Government of India on 26th January, 2006 stating therein that his discharge was not in accordance with law. He was informed by the OIC Records on 25th February, 2006 that his discharge was in conforming to law. He sent a reply to communication dated 25th February, 2006 on 9th June, 2006. Against his discharge, he served a legal notice through his Advocate on the respondents on 19th June, 2006. The same was replied back by the OIC Records on 5th September, 2006. He sent reply to the same on 6th April, 2007 to the OIC Records 39 GR, Varanasi Cantonment, U.P. 3 Mr. Tarlok Chauhan, Advocate had strenuously argued that the discharge of the petitioner is not in conformity with law. He also contended that the Officer Commanding, as is evident from Annexures P-2, P-3, P-4 and P-9, had recommended the case of the petitioner and it is specifically stated therein that the discharge of the petitioner was not in accordance with law. His further contention is that since his client was placed in medical low category SHAPE and he was to be invalided on the basis of the recommendations made by the Medical Board and his client could not be discharged without following rule 13 (2-A) of the Army Rules, 1954. Mr. Janesh Mahajan, Central Government Counsel had supported the decision of the authority whereby the petitioner has been discharged from service. His further contention is that he was not required to be brought before the Medical Board and his discharge is in conformity with rule 13 (2-A) of the Army Rules, 1954 read with Annexures R-4 to R-6 respectively. I have heard the learned counsel for the parties and perused the pleadings of the parties carefully. The petitioner was enrolled in the Army on 19th September, 1977. He was promoted to the post of Naib Subedar on 29th October, 1995 and thereafter to the post of Subedar in the month of September, 1999. He was served with a discharge notice on 14th June, 2002. The text of letter dated 14th June, 2002 reads thus: “As per appended to RIO 4/92 received vide your part II order Nos. 0/006/0002/2002 JC-629167k Sub (clk) Sunil Chand Katoch has been placed in Low medical category BEE (P) w.e.f. 01 Dec.2002. He is willing to continue in service and recommended to be retained in service by his commanding officer but the OI records has not accepted his continued retn. In service. Hence, he will 4 be discharged from service under Army Rules 13(3) 1 (iii) read in conjunction with Army rules 13(2A). The cause of discharge to be shown in TAFY-1964. (Discharge Certificate) will be ‘discharged being placed in med cat lower than SHAPE and not up to the prescribed military physical standard. 3. Copy of show cause notice and reply thereto duly signed by the individual and countersigned by the CO will invariably be fwd to this office along with pension documents to avoid any representation at later stage. 4. The individual may please be brought before pre-release medical board as per AO 3/89 and para 13 & 14 of AO 3/2001 immediately. Also ensure that instrs contained in ROI 20/83, 8/86 as amended is strictly complied with and his discharge documents as per appx. to this office along with RMB proceeding duly approved by 01 Aug.2002. He may please be dispatched to Depot Coy (39GTC) for discharge drill on 20 Nov.2002. He will be finally SOS from service w.e.f.01 Dec.2002. 5. Please acknowledge receipt.” It is evident from the bare reading of Annexure P-1 dated 14th June, 2002 that the petitioner has been discharged from service under Army Rules 13 (3) 1 (iii) read in conjunction with Army Rules 13 (2-A). The case of the petitioner was recommended by the Officer Commanding on 26.6.2002 and 9.7.2002. The Officer Commanding has sought the following information from the Records 39 GR on 24.7.2002, which reads thus: (a) AR 13 (2A) provides for discharge of any person/persons subject to Army Act either unconditionally or on fulfillment of certain specified condition at the discretion of Central Government or Chief of the Army Staff. The commanding Officer (not Officer Commanding) in such instances is also the 5 competent authority to discharge such person. This provision envisages that it is only on the decision of Central Government or Chief of Army Staff that a person in a particular specified conditions can be discharged and the Commanding Officer is also entitled to discharge the Junior Commissioned Officer on such specified conditions. In view of this, you are requested to forward the authority of Central Government/Chief of the Army Staff which specifies “discharge being placed in medical category lower than SHAPE-.1I and not upto the prescribed military physical standard” as one of the reasons for discharge in order to process the case. (b) AR 13 (3)(1)(iii) provides for discharge other than on medical grounds which is provided in AR 13(3) (I)(ii). In the instant case the discharge is on grounds of medical category lower than SHAPE-1, therefore, it is covered by AR 13(3) (I) (ii) and not under AR 13(3) (I)(iii) and that too, to be carried out only on the recommendation of an invaliding Board. Thus, the two independent Rule position appear to have been mixed up and misinterpreted. You may please clarify the same, as competent authority to authorize discharge in the two provisions are different. The case will be processed on receipt of above clarification/documents.” Despite the clarification sought by the Officer Commanding on 24th July, 2002, the Officer Commanding was requested to issue show cause to the petitioner on 30th July, 2002. He was issued a show cause notice on 2nd August, 2002, which reads thus: 1. Your discharge order has been issued by Records 39 GR vide their letter No.1208/139/RA-9 dt 14 Jun 2002 and you will be SOS from Army service wef 01 Dec 2002. You are being discharged since on being placed in low med cat ie SIHIAIP2E1 (Permt), further retention in service is not considered necessary as per Army 6 Rules 13(3) I (iii) read in conjunction with Army Rule 13(2A). 2. You have to be disch from Army service wef 30 Nov 2002 (AN) as per above disch order issued by your OIC Records, 39 GR. 3. In case you have any thing to say in this regard, your reply should reach to under mentioned by 04 Aug 2002. He had filed reply to the show cause notice on 3rd August, 2002. He has specifically stated therein that he was not being provided with shelter appointment to continue in alternative appointment on being placed in permanent low medical category SIHIAIP2EI. He has shown his earnest desire to continue to serve the army. The OIC Records to the query raised by the Officer Commanding on 24th July, 2002 has informed him on 10th August, 2002 that the discharge of the petitioner was in conformity with law. Letter dated 10th August, 2002 reads thus: “However, AR 13(3) Items 1(ii) is applied for those JCOs, who have been found medically unfit by the medical authority and have been sent home directly by them. Hence, AR 13(3) 1(ii) is not applicable in the case of JC- 629167K Sub/Clk Sunil Chand Katoch as the JCO Clk has not been medically boarded out by med auth. Moreover, OIC Records is empowered to approve the disch of permt low med cat other than the BCs as per Army HQs letter No.B/10122/LMC/MP-3(PBOR) dt 15 Mar 2000.” It is clear from Annexure P-9 dated 21st September, 2002 that the Officer Commanding was not satisfied with the manner in which the case of the petitioner was proceeded with. He again called upon the OIC Records that the petitioner should have been permitted to complete his service being asset to the organization. 7 The question which falls for consideration is whether the petitioner, who was placed in low medical category (Permanent), could be discharged without being invalided without the recommendations of the Invaliding Board. It is evident from the bare reading of rule 13 i.e. table that if the Junior Commissioned Officer having been found medically unfit for further service, his discharge is to be carried out only on the recommendation of an Invaliding Board. In the present case, no Invaliding Board had been constituted while discharging the petitioner from service. The commanding Officer of the petitioner, as noticed above, on 24th July, 2002 specifically brought to the notice of OIC Records that since the petitioner was being discharged being put in low medical category, he was required to be brought before the Invaliding Board. The same was reiterated by the Officer Commanding on 21st September, 2002. Since the petitioner was being invalided after being placed in low medical category rule 13 (3) (i) (ii) was applicable and not rule 13 (3) (i) (iii). It is also evident from para 6 of Annexure P-16 dated 15th March, 2000 that the Commanding Officer alone is competent authority to sanction discharge of JCOs/OR who had been found medically unfit for further service. The OIC Records is only the approving authority. It is evident from the contents of Annexure R-4 that if the body weight is in excess of ideal body weight by more than 20% investigations will be carried out with a view to exclude any metabolic abnormality and he will be placed in medical category BEE for 6/12 year. In the present case, admittedly, no investigation has been carried out as per Annexure R-4 itself. Now, the Court will consider the second submission of Mr. Tarlok Chauhan, Advocate that his client has been discharged without following the mandatory provisions of Rule 13 (2-A) of the Army Rules, 1954. It will be apt at this stage to refer to rule 13 (2-A) which reads thus: 8 “13(2-A) 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 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.” It is clear from the phraseology employed in sub rule (2-A) of rule 13 of the Army Rules, 1954 that it is only the Central Government or the Chief of Army Staff, who is competent to discharge the incumbent and the Commanding Officer is also competent authority to discharge from service such person or any person belonging to such class in accordance with the said decision. In the present case the respondents have not placed any decision on record of the Central Government or the Chief of Army Staff pursuant to which the Commanding Officer could pass the order. Consequently, it is held that the respondents have violated the provisions of sub-rule (2-A) of rule 13 while discharging the petitioner from the Army. This aspect has also been highlighted, as noticed above, by the Commanding Officer of the petitioner as per letter dated 24th July, 2002 read with letter dated 21st September, 2002. The instructions brought to the notice by Mr. Janesh Mahajan being contrary to the Army Rules, 1954 cannot be looked into. It is settled law that the instructions/guidelines issued contrary to the Act or the Rules are void. The matter is required to be looked into from another angle. The petitioner was served with a discharge notice on 14th June, 2002. Thereafter he was served with a notice on 2nd August, 2002 whereby he was called upon to file his reply before 4th August, 2002. He has filed his reply on 3rd August, 2002. The purpose of granting time to the petitioner 9 was to file the reply to enable him to project his case that he should not be discharged from the service. The respondents have not taken into consideration his reply and to the contrary they had already made up their mind to discharge the petitioner from the Army service with effect from 1st December, 2002. The respondents were bound to take into consideration the reply filed by the petitioner before making up their mind to discharge the petitioner from Army service. The decision was to be taken qua the discharge of the petitioner after taking into consideration his reply. In the present case converse has happened. The decision had already been taken to discharge the petitioner in the month of November, 2002 and thereafter he has been called upon to submit his reply to the show cause notice. The act of the respondents asking for the reply of the petitioner after taking a decision was merely a formality. There is violation of the principles of natural justice by the respondents, as noticed above, and the decision of the respondents to discharge the petitioner is a nullity. In view of the observations made hereinabove, the writ petition is allowed. Annexures P-1 dated 14th June, 2002 and P-6 dated 20th August, 2002 are quashed and set aside. The petitioner is held entitled to all the consequential benefits. There shall be no order as to costs. July 3, 2008 (Rajiv Sharma ), J. *awasthi*