Case: EX SEPOY SURENDRA SINGH YADAV Vs. CHIEF RECORD OFFICER

2. The Appellant was enrolled in the Army on 26.04.1991. At the time of his appointment he produced his matriculation certificate issued by the Madhyamik Shiksha Mandal, Gwalior, Madhya Pradesh. On verification it was found that the certificate produced by him was not genuine. A charge-sheet was issued under Section 44 of the Army Act, 1950 (for short, ‘the Act?) and a preliminary inquiry was conducted against the Appellant. During the preliminary inquiry, the Appellant admitted that he did not have any proof to show that he had passed the matriculation examination in 1988.3. The Appellant was tried by the Summary Court Martial and was found guilty under Section 44 of the Act. The Appellant was dismissed from service and sentenced to undergo rigorous imprisonment for three months in a civil jail.4. Thereafter, the Reviewing Authority set aside the order of termination and the sentence imposed on the Appellant and recommended that the Appellant may be reinstated and the proceedings for discharge can be taken.5. The Appellant was reinstated on 27.11.1992 and a show cause notice was issued to him on 27.05.1993 seeking an explanation as to why he should not be discharged from service. There was no response from the Appellant to the show cause notice. The Appellant was discharged from service on 10.07.1993. He filed a Writ Petition in the High Court challenging the order of discharge which was transferred to the Armed Forces Tribunal, Lucknow Bench. The Tribunal dismissed the Transfer Application holding that no ground was made out by the Appellant for setting aside the order of discharge. Dissatisfied with the order of the Armed Forces Tribunal the Appellant has approached this Court.

Reasoning:
9. As stated above, the initiation of a Summary Court Martial was for an offence under Section 44 of the Army Act. He was finally exonerated by the reviewing authority but discharged from service in exercise of power conferred under Rule 13 of the Army Rules.10. The first submission made by the learned counsel for the Appellant that no proceedings for discharge could have been initiated after he was exonerated in the Summary Court Martial, cannot be accepted.As stated above, the show cause notice that was issued to the Appellant in this case was under Rule 13 (3) T able III (v). Rule 13 specifies the authorities who are empowered to authorize discharge in respect of persons enrolled under the Act who have been attested.The Appellant was charge-sheeted for producing a false certificate to show that he passed matriculation. The proceedings initiated for discharge is on the ground of lack of requisite educational qualification. The charges are not the same. The submission that is made by the Appellant that he cannot be discharged but can only be dismissed or removed under Section 20 (3) cannot be accepted. Though, the Respondents committed an error in referring to Section 20 (3) of the Act, a close scrutiny of the material on record would indicate that this is a case of discharge. We find no error committed by the respondents in exercising power under Rule 13 to discharge the Appellant. As stated earlier, exoneration in a Summary Court Martial is not a bar for initiation of proceedings for discharge. The Appellant does not possess the requisite educational qualifications. He cannot be continued in service. Therefore, he has been rightly discharged from service.