ASHOK KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE applicant, Ashok Kumar was enrolled on 20.11.1997. He was issued a show cause notice dated 10.9.2004 signed by the Lt. Col. Vikram Singh, Commanding Officer in which there is a reference of seven offences said to have been committed by the applicant between May, 2001 and July, 2003 and the petitioner has been asked to show cause by 16.9.2004 why his services should not be terminated. The petitioner submitted his reply dated 15.9.2004 and was thereafter discharged on 7.10.2004. The petitioner then filed Writ Petition No. 3525 of 2005 in the Lucknow Bench of the Allahabad High Court which has been transferred to the Tribunal in view of the provisions of section 34 of the Armed Forces Tribunal Act, 2007. We have heard Sri R. Chaubey, Counsel for the applicant and Col. R.N. Singh, Senior Standing Counsel on behalf of the respondents. Shri R. Chaubey, learned Counsel for the applicant submitted that show cause has been signed by Commanding Officer, Lt. Col. Vikram Singh and not by Sub -Area Commander or the Brig. Commander as provided under Rule 13(3)III(v). It is also submitted that discharge of the applicant was not sanctioned by the Sub -Area Commander/Brigadier Commander. In view of this issue we had directed the respondents to produce the original record relating to the discharge of the applicant. The record has been produced by the respondents before us and has been seen by Shri R. Chaubey, learned Counsel for the applicant. The file indicates that the minutes sheet relating to the discharge of the petitioner was initiated on 1.9.2004 and approval of issuance of show cause notice was given by the G.O.C. on 7.9.2004 and thereafter the show cause notice was issued on 10.9.2004. The discharge of the applicant was sanctioned by the G.O.C. on 25.9.2004 and he was discharged on 7.10.2004. Thus this contention of the learned Counsel for the applicant that the issuance of the show cause and sanction of the discharge is not the act of the competent authority is not borne out from the record.

(2.) LEARNED Counsel for the applicant then submitted that it was necessary for the G.O.C./Sub Area Brigade Commander to have singed the show cause notice himself and failure to do so would vitiate the notice. In our opinion the contention does not have any merit. The issuance of show cause notice has been sanctioned by the competent authority and the mere fact that the show cause notice was issued under the signature of the Commanding Officer would not vitiate the show cause notice. The rule confers the decision making power upon the Sub Area Commander/Brigadier Commander and if that authority or any higher authority vide Rule 13(2) Army Rules has taken the decision, it is sufficient compliance. No prejudice has been cause to the petitioner.

(3.) THE learned Counsel for the applicant has also submitted that no preliminary enquiry has been held and that the report of the preliminary enquiry has not been annexed with the show cause notice. The original record reveals that a preliminary enquiry was held and a report was also submitted. The learned Counsel for the applicant has not been able to refer to any provision whereunder the report of the preliminary enquiry was required to be annexed to the show cause notice. There is another aspect of the matter to which our attention was drawn by Shri R.N. Singh, learned Senior Standing Counsel for the respondents that the applicant had committed seven offences within a short span of two years and had repeatedly overstayed leave and was also once punished for intoxication and that this record of the applicant itself indicates that he was a habitual offender and in the circumstances, there was sufficient material to justify the discharge and it was not mandatory on the part of the respondents to hold a preliminary enquiry.