In a significant ruling by the Supreme Court of India, a judgment was passed regarding the discharge order in defence services. The case involved the review of discharge proceedings in the defence services. The outcome of this judgment has far-reaching implications for similar cases in the future.
Facts
- The Appellant was enrolled in the Army on 26.04.1991.
- He challenged the order of discharge in the High Court, which was transferred to the Armed Forces Tribunal, Lucknow Bench.
- A charge-sheet was issued under Section 44 of the Army Act, 1950, and a preliminary inquiry was conducted against the Appellant.
- The Appellant was discharged from service on 10.07.1993.
- No response was given by the Appellant to the show cause notice.
- The Appellant was found guilty under Section 44 of the Act after a trial by the Summary Court Martial.
- The matriculation certificate produced by the Appellant from Madhyamik Shiksha Mandal, Gwalior, Madhya Pradesh, was found to be not genuine.
- The Armed Forces Tribunal, Lucknow Bench, dismissed the Transfer Application filed by the Appellant in orders dated 05.01.2016, 21.03.2016, and 19.05.2016.
- Appellant was dismissed from service and sentenced to undergo rigorous imprisonment for three months
- Reviewing Authority set aside the order of termination and the sentence imposed on the Appellant
- Reviewing Authority recommended the reinstatement of the Appellant with proceedings for discharge to be taken later
- Appellant was reinstated on 27.11.1992
- Show cause notice issued on 27.05.1993 asking for explanation for discharge from service
- Tribunal dismissed Transfer Application stating no grounds made out by Appellant to set aside the order of discharge
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Arguments
- Appellant argues that the order of discharge violates the principle of double jeopardy.
- The charges in the charge-sheet leading to Summary Court Martial differ from the allegations for discharge from service.
- Union of India justifies the discharge order by stating exoneration in Summary Court Martial does not prevent initiation of discharge proceedings.
- Appellant cannot be dismissed under Section 20 of the Act after being cleared in Summary Court Martial.
- Counsel for the Appellant claims the discharge order under Rule 13 (3) Table III (v) lacks jurisdiction.
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Analysis
- Any person who made a willfully false answer during enrolment can face imprisonment for up to five years as per the Act.
- The initiation of a Summary Court Martial was due to an offence under Section 44 of the Army Act.
- The grounds of discharge under Rule 13(3) include conditions like fulfillment of enrolment terms, completion of army service, and being a Commanding Officer.
- Section 44 of the Act deals with false answers made during enrolment.
- The show cause notice issued to the Appellant was under Rule 13 (3) Table III (v), which was related to discharge at his own request before fulfilling the conditions of his enrolment.
- The error in referring to Section 20 (3) of the Act was made by the Respondents, however, a careful examination of the material on record showed that this is a case of discharge based on lack of educational qualification.
- The case involved the Appellant being found medically unfit for further service, leading to discharge proceedings on the grounds of lacking the required educational qualification.
- In a previous case with similar circumstances, this Court had held that the show cause notice should have been issued under Section 20 of the Act instead of Rule 13 (3) Table III (v) of the Army Rules.
- The Officers authorized to discharge were specified, and based on the reasons cited in the judgment of the previous case, the Court restored the order of the Summary Court Martial.
- The Appellant’s argument that he could only be dismissed or removed but not discharged under Section 20 (3) was not accepted, as Rule 13 specifically empowered authorities to authorize discharge for enlisted persons.
- The Appellant was charged for providing a false certificate to misrepresent his matriculation qualification.
- Despite being exonerated by the reviewing authority, the Appellant was discharged from service through the powers granted under Rule 13 of the Army Rules.
- Initiating discharge proceedings after the Appellant was exonerated in the Summary Court Martial was deemed acceptable and within the provisions of the relevant regulations.
- In Pursushottam’s case, the Summary Court Martial decision against a Hawaldar in the Corps of Military Police was set aside in review under Section 162 of the Act.
- In the judgment Union of India and Anr. v. Pursushottam, it was held that there is no bar for departmental action after exoneration in the Summary Court Martial.
- The Court relied on Union of India and Ors. v. Harjeet Singh Sandhu.
- It was concluded that if the decision of the Court Martial is not confirmed, disciplinary action for imposition of a penalty of dismissal or discharge may be resorted to.
- The order of the Reviewing Authority under Section 162 of the Act was deemed to be vitiated in this case.
- The respondents did not commit any error in discharging the Appellant under Rule 13.
- Exoneration in a Summary Court Martial does not prevent initiation of discharge proceedings.
- The Appellant lacks the necessary educational qualifications.
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Decision
- The employee cannot be continued in service
- The employee has been rightly discharged from service
- The Appeals are dismissed
Case Title: EX SEPOY SURENDRA SINGH YADAV Vs. CHIEF RECORD OFFICER
Case Number: C.A. No.-007125-007126 / 2019
