VINOD KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS judgment will dispose of two writ petitions (SWPs NO.164 and 262 of 1989) filed by the petitioner as these involve common questions of law, facts and deal with the same subject matter.

(2.) WHEN does an order of discharge passed under Army Rule 13(3) (III) (V) take effect when the order does not specify any date? Is it from the date of passing of the order or from the date it is conveyed to the delinquent or from the date it is signed by him? And is this order required to be signed by the person sought to be discharged by any provision of the Army Act and the rules made thereunder and can the refusal of the delinquent to sign on such order, in the absence of any such requirement7 provided under the Act and the Rules, tanta -mount to disobedience of a lawful command given by a superior officer under Sec. 41(2) of the Army Act? All these questions arise in the two petitions which beg answer in light of the relevant provisions of the Army Act and Rules. The field is virgin and calls for examination keeping in regard the uneasy balance required to be maintained between the demands of justice and the imperatives of the discipline in the Army.

(3.) PETITIONER was enrolled as a sepoy in the Army. He was a Gunner in 223 Med Regt. at the relevant time. A show cause notice was issued to him on 18.07.1989 by his Commanding Officer Col. Pandey cataloguing the sentence awarded to him for his absence from duty on various occassions and requiring him to show cause against the proposed termination of his services. This was followed by a second notice dated 29.06.1989 given by Bde. Comdr. Mehta repeating the allegations contained in the first notice besides some additional charges and asking him to show cause why he should not be discharged from service. It is not known whether he replied to notices but the admitted position is that he was serving some sentence during this period. Eventually order dated 18.07.1989 signed by Maj. R.S.Parmar, DAAG, "for Cdt." was passed discharging the petitioner from service under rule 13(3) (III) (v) of the Army Rules on consideration of some letter said to have been addressed by his wife to the Commander.