UNION OF INDIA UOI Vs. K MURUGESAN

JUDGEMENT

(1.) THIS writ appeal calls in question the correctness of an Order passed by a learned Single Judge of this Court whereby W. P. No. 6738 of 1993 filed by the respondent has been allowed and the order of dismissal of the petitioner from service set aside reserving liberty to the respondent to conclude the proceedings afresh after considering explanations submitted by the petitioner.

(2.) THE petitioner-respondent herein was enrolled in the Indian Army by the Branch Recruiting officer at Madras in September 1988 and sent to No. 4, Training Battalion (MT), ASC Centre (South) in Bangalore for training. Despite three chances and extra coaching given to the respondent, he failed thrice in the Commandant's drill test. On the recommendations of the commanding Officer of the Training Battalion, he was discharged from service under Rule 13 (3)of the Army Rules on the ground that he was "unlikely to become an efficient soldier". He was however re-enrolled on 4-12-1989 through HQ Quota sponsored by Sri K. Neduncheliyan, his brother who was himself serving in the Army. In the Enrollment Form submitted by the respondent, he concealed the fact of having served the Army earlier and discharged from the same on the ground mentioned above. The non-disclosure of this significant part of information required from the candidates led to the conduct of a Court of Enquiry in which the respondent was given an opportunity to explain the circumstances leading to his enrollment and the non-disclosure of the true facts regarding his earlier service in the Army and his eventual discharge from the same. The Court of Enquiry did not however find a case for trial of the respondent by a Court Martial and recommended that the respondent be given benefit of doubt and retained in service. This recommendation did not find favour with the Commandant, ASC centre (South) at Bangalore. By his Order dated 7-8-1991, the Commandant held that the enrollment authorities concerned were ignorant about the previous service of the respondent in the Army and that the respondent had deliberately withheld important information which he was supposed to reveal in the application form. He also found that even the brother of the respondent had failed to disclose the information regarding the earlier service of the respondent and thereby committed a breach of Section 44 of the Army Act. He accordingly directed disciplinary action to be taken against the respondent and his brother.

(3.) INSOFAR as Sri K. Neduncheliyan, brother of the respondent was concerned, the disciplinary action appears to have resulted in a severe reprimand against him. As regards the respondent, he was served with a notice by which he was called upon to show cause why action should not be taken against him for his failure to disclose the previous service rendered in the Army. In the reply filed by the respondent to the said show-cause notice, the fact that the enrollment form had not disclosed his previous service in the Army was not disputed. An attempt was however made to show as though the Army authorities were aware of the respondent's previous service in the army.