MUKESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the counsel for the Union of India, who has filed counter affidavit, which is taken on record.

(2.) Petitioner who at the relevant time was serving the Indian Army as other recruit is aggrieved by the order of discharge dated 6.10.2008, Annexure-1. It is submitted on his behalf that the order of discharge has been passed by the authorities in compliance of the provisions contained in Rule- 15 of the Army Rules, 1954 , which inter alia permit the Central Government or the officer authorized by the Central Government to terminate the services of army personnel on grounds other that misconduct. In the light of the provisions contained in Rule-13, 15 of the Army Rules the army headquarters has issued instructions dated 28.12.1988 which has been placed on record by filing counter affidavit vide Annexure-R-5.

(3.) It is submitted on behalf of the petitioner that while considering the discharge of the army personnel on grounds other than misconduct i.e. on the ground of having earned four red ink entries, it is the duty of the authorities to consider the nature of the offence for which each red ink entry has been awarded to the person whose case is being considered for discharge on grounds other than misconduct, which is evident from Note-2 of the instructions dated 28.12.1988, Annexure-R-5. It is further submitted by the counsel for the petitioner that in order to consider the nature of the offence for which the red ink entries have been awarded to the petitioner, the authorities issued show cause notice dated 28.8.2008, Annexure-R-6, which was served on the petitioner on 2.9.2008 as is evident from receipt Annexure-R-8. In response whereto petitioner filed his show cause reply, which is contained in Annexure- R-10 in which petitioner explained the circumstances in which four red ink entries were awarded to him. From perusal of the said show cause it appears that petitioner contended before the competent authority through his reply that the offences for which he has been imposed four red ink entries were committed in circumstance which was beyond his control and in appreciation of the circumstance put forth by him the disciplinary authority awarded him minor punishment and in appreciation of such fact the authorities while considering the case of his discharge ought not to have relied on the same red ink entries as the circumstances were beyond his control. Aforesaid show cause reply it appears was forwarded to the competent authority for consideration, which is evident from the instruction contained in show cause notice dated 10.9.2008, Annexure-R-11, whereafter the petitioner was directed to be discharged by the competent authority under discharge roll dated 5.10.2008, Anneuxure-R-13. Perusal of the discharge roll, Annexure-R-13 does not indicate that the show cause reply filed by the petitioner and forwarded to the competent authority under notice dated 10.9.2008 was ever considered by the competent authority. In view of the contents of the discharge roll learned counsel for the petitioner submitted that the same has been passed without application of mind in compliance of the instructions contained in Note- 2 of the instructions dated 28.12.1988, Annexure-R-5, which inter alia provides that before directing for discharge of the other recruit on the basis of red ink entries, the circumstance and the nature of offence for which each red ink entry was awarded should be considered. It is thus evident that the discharge order which is passed on the basis of the contents of the discharge roll dated 5.10.2008 is violative of the relevant instructions issued by the competent authority and cannot be sustained in law.