MAJOR S NAGENDRAN Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) This writ petition was filed for the issuance of a writ of certiorari to call for the records relating to the order of the first respondent in Order No. 6 (181) / 88 /D (A6) dated 15-12-1988 and to quash the same. In and by the terms of the impugned order, the petitioner was dismissed from the service forthwith. The said dismissal order was questioned by the petitioner in this writ petition.

(2.) The relevant facts are as follows: The petitioner was selected by the third respondent and appointed as Captain in Army Medical Corps in a permanent commissioned post He joined the duty on 12-8-1979 as Doctor in 16-MedicalBattallion,C/o. 56. A.P.O.,and postedatJummadpur, Jammu & Kashmir State, During his service, he was granted two years study leave for prosecuting his Post Graduate Study in M.D. - Psychiatrist at Armed Forces Medical College, Pune during the period from 1983 to 1985. According to the petitioner, while prosecuting his P.G. Studies, he married one Nirmala as per Hindu rites in Hanuman Temple, Pune and the said marriage was duly registered with the Registrar of Marriages at Pune on 8-4-1985. The fact of the marriage was also taken cognizance by the respondents by making entries in the official records relating to the petitioner. Subsequently, he was transferred and posted to Military Reformative; Gokkonda, (Prison No. 2). He was also promoted to the rank of "Major" with effect from 24-4-1985 while he was at Secunderabad. It is alleged by the petitioner that his relationship with his wife, viz. Nirmala became strained and she left to her native place at Bangalore. Therefore, the petitioner was constrained to move IInd Additional Judge, City Civil Court, Hyderabad by filing O.P.No. 301 of 1986 for dissolution of the marriage.

(3.) While the proceedings were pending, according to the petitioner, his wife Smt. Nirmala wrote to respondents 2 and 4 to take disciplinary action against the petitioner, inter alia, on the ground that he contracted a second marriage with one Anasuya at Tirupathion 22-8-1986, while the marriage between her and the petitioner is subsisting. On the said complaint of SmL Nirmala, a show-cause notice was issued by the Directorate in Proceedings No. 71902/525/D.V.-4 dated 22-6-1988 to show-cause as to why his services should not be terminated under Section 19 of the Army Act read with Rule 14 of the Rules made thereunder. The petitioner submitted a reply on 1-8-1988 to the effect that the O.P. filed by him for dissolution of the marriage with Smt. Nirmala was pending on the file of IInd Additional Judge, City Civil Court, Hyderabad and therefore, plurality of the marriage is sub-judice and no further action which will be prejudicial to the petitioner should be taken in view of the Regulation - 333 (c) (b) of the Army Regulations, 1962. It is also stated in the explanation submitted by the petitioner that he was not provided with the adverse reports, and therefore, requested for withholding the contemplated action. It was specifically pleaded therein by the petitioner that if still the authorities are not satisfied and want to proceed in the matter, he may be allowed to retire prematurely to avoid further inconvenience and embarrassment. However, the authorities passed the impugned order terminating his services by an Order No. 7 (181)/88/D(A6) dated 15-12-1988. The petitioner alleged that the said order wa3 not yet served on him as on the date of filing of this writ petition. The writ petition was filed questioning the said order mainly on two grounds. (1) Any action terminating the services of the employee is subject to the provisions of the Army Act, 1950 and the Rules and Regulations made thereunder. Rule 14 of the Army Rules, 1954 contemplates that before proposing to terminate the services of an Officer under Section 19 of the Army Act, he should be given an opportunity to show-cause in the manner specified in sub-rule (2) against such action. Sub-rule(2)of Rule 14 contemplates that when after considering the reports on an Officer's misconduct, the authorities are satisfied that the further retention of the said officer in the service is undesirable, the Chief of the Army Staff shall so inform the Officer together with all the reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence: (emphasis supplied).