UNION OF INDIA Vs. DIWAN SINGH

JUDGEMENT

(1.) . The Union of India felt aggreived by the order of the Additional Senior Civil Judge whereby he accepted the appeal of the respondents thereby reversing the finding of the Sub Judge. The First Appellate Court decreed the suit by declararing that the form of discharge was not voluntary. It being illegal and without jurisdiction. Respondents were declared to be in continuous service through out. With further directions to pay all consequential benefits of service to them.

(2.) . It is against this order of the First Appellate Court that present appeal has been preferred, inter alia, on the ground that the respondents herein obtained voluntary discharge. Finding of fact arrived at by the Sub Judge could not have been reversed by mis-interpreting the discharge order wrongly. The First Appellate Court ignored the evidence produced by the Union of India. Moreover, the ground of discharge given by the respondent as "domestic problem" was neither vague nor left for interpretation. In Army it is a common practice to seek discharge on "domestic problem" without specifying the exact nature of the domestic problem. Therefore, the reasoning given by the First Appellate Court is contrary to law, rules and also against the form of discharge placed on record.

(3.) . In order to appreciate the contention raised in this appeal, the brief facts of the case have to be mustered first. The respondents S/Shri Diwan Singh and Ranbir Singh were posted as Lance Naik to 20 Jat Regiment. Their Unit was deployed along Indo Pak Border in February,1991 to check infiltrators. They were posted as RD-77 and RD-78 on the deployment line. It was the case of the superiors of the respondents that respondents wrongfully detained a group of 47 Bangladeshi nationals alongwith six others who were trying to cross over to Pakistan. This incident, according to the appellant, was not reported by these respondents to the Battalion Head Quarters without loss of time. They were tried summarily on 19th February,1991. As a punishment they were deprived of their rank of Lance Naik. They were further sentenced to pay fine equivalent to 14 days' salary. According to the appellant they were made to sign on blank papers which the superior officials used as Form of Discharge and inserted the ground of discharge as domestic problem. On the basis of this forged Form of Discharge t4iey were discharged from service on 26th February,1991 under Army Rule 13(3)(lll) & (iv). Because of the illegal "discharge" they represented to the higher authorities clearly mentioning that the Form of Discharge was got signed when it was blank under threat of punishment of 12 years. Their signatures were obtained on blank papers. Those blank papers subsequently were converted with malafide intention by their superiors as Form of Discharge. In fact they never submitted the Form of Discharge nor wanted to be relieved from service particularly after having undergone punishment as awarded on 19th February,1991. There was no justification for their asking for the discharge on 26th February,1991'. Their representation was rejected, therefore, they filed the civil suit. The learned Sub Judge concluded that they could not have been threatened. The threat of sending them for 12 years imprisonment cannot be appreciated nor tenable becuase such threat was contrary to Section 64(f) and 69 of the Army Act,1950. Under those provisions for such an offence punishment could not have been more than seven years. Hence, there was no question of threat being held out to the present respondent (plaintiff before the Trial Court). Moreover, the respondents did not implead those officers as parties who according to them extended the said threat nor were those officers summoned as witnesses. As regards obtaining the signatures on blank papers that was also not accepted by the Trial Court. The Trial court drew presumption against the. respondents herein under Section 140 and 142 of the Army Act and held that the Form of Discharge was signed by the respondents voluntar ily. This finding was reversed in first appeal.