GAMBHIR SINGH Vs. CHIEF OF ARMY STAFF

JUDGEMENT

(1.) Brief facts of the case as set out in the petition are that the petitioner was enrolled in the Army on 24.6.1980. In August 1994 the petitioner was discharged from the Army by the Commanding Officer of 17 Garhwal Rifles. Oral orders were issued to the petitioner in connection with his discharge from service. The petitioner was told that the reasons for discharge were of several red ink entries in his record of service. No written order in connection with his discharge was served upon him. He was not given any opportunity to show cause as to why his services may not be terminated. At the time of the discharge of the petitioner from the Army, he had completed the service of 14 years 3 months and 17 days in the army. The petitioner thus having not completed 15 years of service in the Army was deprived of opportunity of earning pensionery benefits. It is pleaded that in February 1995 the petitioner received a discharge certificate in which it was shown that his discharge has been ordered w.e.f. 11.8.1994 under the provisions of Rule 13(3) (iii) (v) of Army Rules. After the order of discharge, the petitioner had fallen ill and he had asked his wife to approach the respondents for grant of pension and pensionary benefits to the petitioner and also for relevant documents. The wife of the petitioner had addressed a letter dated 24.6.1996 and subsequent letters as well to the respondents for grant of pension. The respondents had replied that since the petitioner had service of only 14 years and 42 days and has not completed 15 years of service, he is not entitled for the pension, as per Service rules. The petitioner kept on writing letters and finally a legal notice dated 12.4.1999 was issued to the respondents and thereafter the present petition was filed.

(2.) It is submitted by the learned counsel for the petitioner that the respondents have acted in a highly arbitrary and illegal manner and have not followed the due process of law and in an extremely high headed manner they have discharged the petitioner without following the procedure. It was submitted that the respondents failed to supply copies of various documents to the petitioner. No show cause notice was issued to the petitioner. As the order of discharge was illegal, the petitioner had been wrongly deprived of his right to pension and other pensionary benefits. Learned counsel for the petitioner has also made a grievance that the respondents have failed to supply documents relating to the offences committed by the petitioner during the course of his service and in the absence of those documents the petitioner was unable to seek legal remedy in accordance with law. During the course of hearing the learned counsel for the petitioner has laid strong stress upon the fact that at the time of discharge the petitioner had put in 14 years, 3 months and 17 days of service and the action of the respondent is highly arbitrary, illegal and above all harsh on the petitioner. It is submitted that even if the petitioner was to be discharged the respondents should have waited till the time the petitioner would be entitled to his pension.

(3.) Learned counsel for the respondent has submitted that the present writ petition is a gross abuse of the process of the court as the petitioner had approached this court with uncleaned hands and suppressed/withheld material facts. Though the petitioner was discharged from service on 11.8.1994, he approached this court only in January, 1999, after a lapse of 5 years. The petition is barred by delay and laches. It was submitted that the petitioner was a habitual offender and had incurred 5 red ink entries for various offences committed by him under the Army Act 1950. She submitted that the provisions of Section 22 of the Army Act were complied with in each case by the Commanding Officer prior to the summary disposal under Section 80 of the Army Act. The case for discharge of the petitioner after incurring 4 red ink entries as per Army HQ letter No.A/13210/159/AG/PS-2(c) dated 28.12.1988 was deferred to provide adequate opportunity to the petitioner to improve his conduct but in vein. The petitioner not only failed to improve his conduct but also committed the 5th offence which again caused a red ink entry in his conduct sheet. After incurring 5 red ink entries for offences committed under the Army Act, the petitioner was discharged from the Army under Rule 13(iii)(v) of the Army Rules as per the procedure laid down in the Army Head Quarter letter No.A/13210/159/AG/PS-2(c) dated 28.12.1988. The counsel submitted that the retention of the petitioner after incurring 5 red ink entries would have been a serious detriment to the morale and discipline of the Army and hence the respondents were left with no alternative, but to discharge the petitioner. It was pointed out by the learned counsel for the respondents that the first red ink entry was incurred by the petitioner on 31.5.1984 and thereafter on 20.9.1986, 20.11.1993, 4.4.1994 and 6.5.1994. The punishment ranged from 7 days detention to 28 days R.I., which the petitioner underwent from time to time. At no point of time, the petitioner had challenged the red ink entries or the action of the respondent in any departmental proceedings or otherwise. After the order of discharge having been passed, at this stage, it is not open to the petitioner to challenge the aforesaid punishments and red ink entries, which were given to him from time to time. She submitted all the relevant documents pertaining to the case were supplied to the petitioner. Even otherwise the documents pertained to the issues and charges which have become final in respect of the petitioner, who has already undergone the punishment and has not challenged the same, have been given to the petitioner. Not only the petitioner has not challenged the punishments he has failed to improve his conduct and retention of such a person would have served a detriment to the morale and discipline of the force. It is submitted that although the case of the petitioner was fit for dismissal from service, but the drastic action was not taken on compassionate ground and only an order of discharge was made. The petitioner has misled this court by stating that no show cause notice was served on him. The petitioner was served with a show cause notice dated 27.5.1994. The said show cause notice has been filed by the respondents. Perusal of the same reveal that the same has been received by the petitioner. The petitioner had in fact even filed a reply to the show cause notice. The counsel submits that on this ground alone the present writ petition is liable to be dismissed.