LAWS(DLH)-2007-4-138

SEPOY SUBE SINGH Vs. UOI

Decided On April 20, 2007
EX SEPOY SUBE SINGH Appellant
V/S
UOI Respondents

JUDGEMENT

(1.) In this petition for a writ of certiorari, the petitioner calls in question an order of discharge of the petitioner from service and a mandamus directing the respondents to reinstate him with all consequential benefits.

(2.) The petitioner was enrolled in the Indian Army as Sepoy on 25th August, 1987. By an order passed in December 2000, impugned in this petition, he was discharged on the ground that his services were no longer required. On the date of his discharge, the petitioner had rendered 13 years of service and served for more than 12 years on the national borders, counter insurgency area and as a member of the Indian Peace Keeping force in Srilanka apart from having served on the high altitude Siachen Glacier. The petitioner's case as set out in the writ petition is that in December 2000, he had an altercation with his Commanding Officer in connection with the refusal of annual leave to him despite the fact that his wife was seriously ill on account of having undergone an open heart surgery. The petitioner alleges that the Commanding Officer had, in the heat of the moment, ordered that if the petitioner's wife was so important he could go on discharge and in rage directed that the petitioner be sent on discharge with the remarks ?Services no longer required?. The petitioner's further case is that although the authority competent to discharge him was the Brigade Commander or the Sub Area Commander, the matter was not referred to him nor was any notice issued to the petitioner to show cause why he should not be so discharged. The order of discharge has in that backdrop been assailed on the ground of being legally incompetent apart from the ground that the same is in violation of Army Rule 13(3)(v) which envisages issue of a show cause notice to the person being discharged. The petitioner's case is that he had served the Army with utmost dedication for nearly 13 years out of which 12 years were spent in the border areas. He alleges that despite the fact that he had furnished medical documents showing about his wife's illness and surgery, sanction of leave was unfairly denied to him. The Commanding Officer's anger and the consequent order of discharge passed by him were both unjustified argued the petitioner.

(3.) The respondents have filed a counter affidavit in which it is inter alia pointed out that the petitioner's discharge was on account of red ink entries in the service record of the petitioner. The counter affidavit alleges that the petitioner had been, on six different occasions, found guilty of offences punishable under Section 39(b) and 48 of the Army Act for overstaying leave and for intoxication and sentenced to undergo imprisonment ranging from 7 to 28 days. It is also alleged that the petitioner had failed to show any improvement in his conduct and that a show cause notice was issued to him to which he had submitted a reply which was upon consideration found to be unsatisfactory. Since the petitioner did not have the requisite 15 years of service necessary for payment of service pension, the question of granting him any service pension or pension pro-rata did not arise.