TIRATH PAL SINGH Vs. UOI

JUDGEMENT

(1.) THE prayers in this writ petition are that the Show Cause Notice dated 8. 4. 2000 be declared as illegal and non est, not being in compliance with Rule 13 (3) (I) (iii) (b) of the Army Rules, 1954 (for short Army Rules); and the Order dated 24. 4. 2000 whereby the petitioner was discharged and Struck off Strength from the Army be quashed inter alia since it had not been given effect to with due exercise of mind; and consequently that the petitioner should be reinstated into service.

(2.) THIS is thus the second round of litigation initiated by the petitioner. The grievance in the first petition against his discharge from the army was by way of Writ Petition No. 1353/1994 which was allowed by Orders dated 15. 2. 1999. The gravamen of the Order was that the Respondents had violated Rule 13 (3) (iii) of the Army Rules for the reason that the Discharge Order was mandatorily to be signed by the General Officer Commanding-in-Chief. K. Ramamoorthy, J. had opined that - "in the case of JCOs concerned of other classes of discharge category, the officers mentioned in column 3 (b) alone can pass the order. Before passing the order the officer concerned has to give notice to the candidate. These two things are absent in this case. Therefore, the order of discharge is liable to be quashed". As a consequence of the decision in the first litigation, the petitioner has received all backwages amounting to Rs. 4,59,449/- for the period upto his reinstatement.

(3.) THEREAFTER, the petitioner has been discharged by Orders dated 24. 4. 2000 which states that his "discharge has been sanctioned by the Army Cdr eastern Command on 24 Apr 2000 as intimated by CEEC vide their letter No. HF-131367/1/mon/engrs/e1c (I) dated 24 Apr 2000 and struck off Strength from the army with effect from 24 Apr 2000 (Afternoon)". The challenge to this order is two-fold. Mr. Bareja, learned counsel for the petitioner, firstly stresses on the fact that the Show Cause Notice issued to the petitioner in terms of the letter dated 8. 4. 2000 has been signed by Brig (Pers and Adm ). It is his contention that the Show Cause Notice must compulsorily have been authored and signed by the person competent to dismiss/discharge the petitioner, i. e. , general Officer Commanding-in-Chief, if not below the rank of Lieutenant general. In this regard reliance has been placed on the Union of India -vs-Harish Chandra Goswami, (1999) 4 SCC 575 and, in particular, to paragraph 8 thereof. We are of the view that this decision is of no avail or applicability to the facts of the present case. Their Lordships were called upon to construe army Rule 37 (3) which specifically states that the convening of a General or district Court-martial must be effected by a particular officer. We are not dealing with that provision in the present case. So far as the particular Rule, which we are concerned with, it stipulates that if the discharge is not at the request of the petitioner/jco, the General Officer Commanding-in-Chief, (the competent authority), before sanctioning the Discharge shall, if the circumstances of the case permit, give the JCO concerned an opportunity to show cause against the order of Discharge. In the case in hand we are not called upon to decide whether an officer of the rank of Brigadier was competent to issue a Show Cause Notice which would eventually culminate in an order of discharge. This is for the simple reason that the Show Cause Notice dated 8. 4. 2000 specifically mentions that it has been signed for General Officer commanding-in-Chief. Therefore, even if a very narrow and pedantic construction to Rule 13 (3) (iii) is to be carried out, the Show Cause Notice must be held to have been issued by the General Officer Commanding-in-Chief himself. There may not be any infirmity in doing so, provided the competent officer had directed the issuance of the Show Cause Notice and had also given the response thereto due consideration.