Original Application No. 49 of 2015. Case: Mukesh Kumar Vs Union of India and Ors.. High Court of Madras (India)
| Case Number | Original Application No. 49 of 2015 |
| Counsel | For Appellant: Y.R. Sharma, Advocate and For Respondents: Mukund Tewari, Central Govt. Counsel assisted by Priti Tyagi, OIC, Legal Cell |
| Judges | D.P. Singh, J. (Member (J)) and Anil Chopra, Member (A) |
| Issue | Army Act, 1950 - Sections 39(a), 39(b); Constitution of India - Articles 14, 33 |
| Judgement Date | December 03, 2015 |
| Court | High Court of Madras (India) |
Order:
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The Applicant a soldier of Indian Army being aggrieved with the order of discharge on account of five red ink entries preferred Writ Petition bearing No. 13723 of 2009 (SS) in the High Court of Judicature at Jabalpur (MP). Later on the petition was transferred to Armed Forces Tribunal, Regional Bench, Lucknow and renumbered as T.A. No. 93 of 2013. The petition was dismissed as withdrawn with liberty to file a fresh on 19.08.2014 hence the controversy is raised in the present Original Application is before this Tribunal.
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We have heard Col (Retd) Y.R. Sharma, Ld. Counsel for the applicant and Shri Mukund Tewari, Ld. Counsel for the respondents assisted by Capt Priti Tyagi, OIC Legal Cell and perused the original record pertaining to case.
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Admitted facts as pointed out by Ld. Counsel for the parties and borne out from the record show that the applicant was enrolled in the Indian Army in the Corps of Signal on 21.12.1996. Between 08.11.1999 to 20.11.2004, the applicant was punished 3 times for overstaying the leave under Army Act Section 39(b) and one time for not rejoining duty in time under Army Act Section 39 (a).
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A show cause notice dated 30.07.2005 was served upon the applicant by officiating Commanding Officer 1 MTR in response to which the applicant submitted his reply on 31.07.2005. The officer issuing the notice was holding the post in officiating capacity. By order dated 16.01.2006, the applicant was punished under Section 39 (a) for absenting himself without leave. The applicant explained that he was at Agra and had proceeded on leave with the permission of JCO incharge temporary duty party. Another show cause notice dated 23.02.2006 was served by the Commanding Officer to which applicant submitted his reply dated 24.02.2006. It seems to be admitted fact that on the basis of material on record including the original document produced before the Tribunal that after submission of reply to show cause notice by the applicant, no written order was communicated.
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On 25.02.2006, the applicant was sent and admitted to Military Hospital, Jabalpur on account of Alcohol Dependency Syndrome. The Commanding Officer sent a letter to Allahabad Sub-Area with recommendation that the applicant be discharged from service under Army Rule 13(3)iii(v) of the Army Rules, 1954. It is submitted that letter was served upon the applicant while he was admitted in the Military Hospital, Jabalpur.
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The Commanding Officer ordered a Court of Inquiry on 18.04.2006 to investigate the circumstances under which the applicant earned 5 red ink entries while the applicant was admitted in the Military Hospital. On 25.04.2006 the applicant was discharged from Military Hospital, Jabalpur in Medical Category S3 (T-24). Court of Inquiry was held on 28.04.2006 to investigate the circumstances with regard to awarding 5 red ink entries. Thereafter another show cause notice dated 25.05.2006 was served upon the applicant by Commander HQ MP, C and Allahabad Sub-Area to show cause as to why he should not be discharged from service under Army Rule 13(3)iii(v) of the Army Rules, 1954. No documents were given to the applicant.
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Against the show cause notice dated 25.05.2006 the applicant submitted his reply dated 27.05.2006. After receipt of reply submitted by the applicant, a letter was issued by the Adjutant that the applicant shall be discharged from 01.08.2006. The applicant was discharged verbally from the Army without any written order on 22.07.2006.
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It has been pleaded by Ld. Counsel for the applicant that between 23.07.2006 to 15.03.2007 the applicant continuously requested the authority concerned to provide him a copy of the discharged order, but he failed to get copy of the discharge order. The applicant submitted statutory complaint which seems to have been rejected, but no communication has been received by the applicant. Being aggrieved, the applicant has preferred the Writ Petition and thereafter this Original Application.
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We have perused the original record which shows that no written order was passed by Brigade/Sub-Area Commander in response to notice (supra). On a perusal of show cause notice it is further revealed that it was served upon the applicant indicating therein that the competent authority proposed to discharge him on account of 5 red ink entries. No other ground has been mentioned in the show cause notice. It has also not been shown in the show cause notice that some Inquiry was held by the competent authority which may make out a case for discharge of the applicant as an undesirable soldier.
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Attention has been invited by Ld. Counsel for the respondents towards Army Rule 177 which empowers the respondents to hold Court of Inquiry. For convenience, Army Rule 177 is reproduced as under:
"177. Court of Inquiry (1) A court of Inquiry is an assembly of officers or junior commissioned officers or of officers and junior commissioned officers, warrant officers or non commissioned officers, directed...
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