O.A. No. 222 of 2011. Case: Rajesh Kumar Vs The Union of India and Ors.. Armed Forces Tribunal
| Case Number | O.A. No. 222 of 2011 |
| Counsel | For Appellant: Ashok Kumar, Advocate and For Respondents: Mukund Tewari, Central Govt. Counsel assisted by Subodh Verma, OIC, Legal Cell |
| Judges | Devi Prasad Singh, J. (Member (J)) and Air Marshal Anil Chopra, Member (A) |
| Issue | Armed Forces Tribunal Act 2007 - Section 14; Army Act, 1950 - Section 48; Constitution of India - Articles 14, 21, 33 |
| Judgement Date | December 01, 2015 |
| Court | Armed Forces Tribunal |
Order:
Devi Prasad Singh, J. (Member (J)), (Regional Bench, Lucknow)
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The instant Original Application under Section 14 of the Armed Forces Tribunal Act, 2007 (for short, Act, 2007) has been preferred by the applicant being aggrieved with the impugned order of discharge dated 30.04.2011 passed in pursuance of red ink entries with the allegation that it has been passed without holding any preliminary enquiry.
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We have heard Ld. Counsel for the applicant Col (Retd) Ashok Kumar and Shri Mukund Tewari, Ld. Counsel for the respondents and perused the records.
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Applicant joined the Indian Army as Sepoy (Chef) on 08.11.2002. Through show cause notice dated 22.10.2010 the applicant was directed to explain his conduct based on six red ink entries and show cause why his services may not be dispensed with being undesirable soldier. Copy of the show cause notice has been annexed as Annexure 5 to the O.A.
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According to the applicant his wife Anita fell ill in 2005 and after prolonged illness expired on 13.01.2007 because of Bone Cancer. Death certificate dated 24.01.2007 has been annexed with the O.A. as annexure-3. It has been submitted that on account of prolonged illness and ultimate death of his wife on account of Bone Cancer, the applicant was under disturbed mental condition, hence for short period he overstayed and absented from service and also started to consume liquor which he used to purchase from CSD Canteen. After receipt of applicant's reply to show cause notice (supra) applicant was discharged from army by impugned order dated 30.04.2011. A perusal of the medical opinion shows that the applicant was suffering from ALCOHOL DEPENDENCY SYNDROME and placed under low medical category S3 (T-24) and required to work under supervision.
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In the Counter Affidavit in paras 6 and 7 it has been stated by the respondents that the applicant incurred six red ink entries as well as intoxication while serving in the army. Colonel Adjutant Headquarter of the 31 Armoured Division being not satisfied with the reply given to show cause notice directed the individual to be discharged from service. Accordingly his discharge was recommended by Commanding Officer, 531 Army Service Corps Battalion. The respondents had relied upon Army Headquarter letter dated 28.12.1988 which provides that in consequence to four red ink entries, an individual may be discharged from army.
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The applicant had been discharged in pursuance of provisions contained in Rule 13(3)iii(v) of the Army Rule 1954. The rule in question provides that a person may be discharged after serving show cause notice by the Brigade Commander/Sub Area Commander. While doing so, a preliminary enquiry shall be held in pursuance of Army Headquarter letter dated 28.12.1988. However, the averments contained in paragraph 6 & 7 of the counter affidavit shows that decision had not been taken by Brigade Commander to dispense with the services of the applicant, that too without holding any preliminary enquiry. For convenience sake paragraphs 6 & 7 of the counter affidavit are reproduced as under:
6. That despite dealing with the offences under summary trial and punishing by summary awards as reformatory measures, the individual proved himself as incorrigible. The petitioner h as incurred sixth red ink entry on 10th September 2010 for an offence under Army Act Section 48 viz. intoxication while serving with 531 Army Service Corps Battalion. The petitioner was issued a show cause notice in terms of Army Headquarter letter No. a (c) dated 28th December 1988 vide Headquarters 31 Armoured Division letter No. 3302/736/A2 dated 22nd October 2010 duly contemplating his removal from service under the provisions of Army Rule 13 being undesirable/inefficient personnel calling for h is explanation as to why he should not be removed from service. The petitioner submitted his reply to 31st October 2010 that he would not commit any offence in future. The Colonel Adjutant headquarters 31 Armoured Division not satisfied with the reply given to show cause notice had directed that the individual be discharged from service. Accordingly, his discharge was recommended by Commanding Officer 531 Army Service Corps Battalion and sanctioned by...
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