PONNACHAN Vs. DY DIRECTOR GENERAL

JUDGEMENT

(1.) The petitioner was a Sepoy in the Indian Army since 1963. The petitioner is presently working as Platoon Commander in the Naval Base. The petitioner had opted for enhancement of service for retirement by 2 years. Considering the above option exercised by the petitioner he was allowed to continue in service for another two years till 13th March 2001. By Ext. P2 he was transferred to the pension establishment for discharging him from service with effect from 30th September, 1999. Ext. P3 is the relevant rule with regard to extension of service. According to the petitioner after extending the service of the petitioner for two years as per Ext. P1, his services cannot be terminated without any notice.

(2.) A counter affidavit has been filed by the respondents in which it has been stated as follows: The option and DSC record office Part II order published prior to issue of final Government Orders on enhanced age/service limit of two years were null and void subsequent to the petitioner's involvement in a disciplinary case and subsequent award of severe reprimand (red ink entry) on 10th February, 1999 after his pleading guilty of the chargers to the Commanding Officer. The petitioner by incurring a red ink entry under Army Act S.40(a) which debars JCOs and other ranks from grant of enhanced age/service limit stands ineligible for such extension vide Army Headquarters letter dated 21st September 1998. The Screening Board held on 08/09 April, 1999 therefore did not recommend/grant his case for enhanced age/service limit. As per Ext. R1 one of the conditions for grant of two years enhanced service is that personnel below Officer Rank if awarded punishment under S.40(a) and S.41(i) and (2) will be debarred from grant of such extension. According to service records, the petitioner had been awarded the punishment of 10 days detention under Army Act S.41(2) and 39(d) on 28th October 1971 and severe reprimand under Army Act S.40(a) and (b) on 10th February 1999. Considering these punishments, the Screening Board found the petitioner unfit for enhanced service. Therefore the action of the respondents in issuing Ext. P2 is justified in the counter affidavit.

(3.) Apparently after allowing the petitioner to continue in service beyond 55 years for two years, and before issuing Ext. P2 order of discharge, there was no show cause notice why the action mentioned in Ext. P2 should not be taken against the petitioner. Ext. P3 gives an indication that in such cases a Junior Commissioned Officer like the petitioner must be given an opportunity to show cause against the order of discharge. Even apart from the above rule, fair place requires that the petitioner must be given an opportunity to show cause why an order of discharge should not be passed against him. There cannot be any dispute Ext. P2 visits the petitioner with civil consequence. Therefore an order like Ext. P2 cannot be passed without giving an opportunity to the petitioner to defend against the facts/allegations mentioned in Ext. P2. Therefore, I quash Ext. P2. The respondents are free to pass appropriate orders after giving an opportunity of being heard to the petitioner.