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REPORTABLE      

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5015 OF 2008

Union of India & Ors.       .....Appellants

        VERSUS

Manoj Deswal & Ors.         …..Respondents

J U D G M E N T

ANIL R. DAVE, J.

1. Being  aggrieved  by  the  Judgment  dated  17th August,  

2007 delivered by the High Court of Delhi in Writ Petition ©  

No. 8004 of 2006, this appeal has been filed by the Union of  

India and others.

2. The facts giving rise to the present litigation in a nut-

shell are as under:

Respondent  no.1  was  recruited  and  was  undergoing  

training  for  being  appointed  to  the  post  of  Store  Hand

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Technical (SHT) in the Army Supply Corps and he had joined  

his Basic Military training at Bangalore on 14th August, 2004.  

Upon completion of the training but before being confirmed in  

service  or  being  appointed  as  a  soldier,  he  was  granted  

annual basic leave for 28 days from 5th January, 2005 to 1st  

February, 2005.  Thereafter, he became sick and hospitalized  

from  4th February  to  8th February,  2005.   Thereafter,  he  

proceeded on casual leave for 15 days commencing from 24 th  

February to 10th March,  2005 and resumed his service on  

11th March, 2005 and on 12th March, 2005 he requested for  

voluntary  discharge  possibly  because  his  mother  was  not  

keeping good health.  Subsequently, on 14th March, 2005, he  

withdrew his request for voluntary discharge and thereafter  

he  remained  absent  from  the  training  without  sanctioned  

leave from 2nd April, 2005 till 20th July, 2005 and resumed  

his duty on 21st July, 2005.

3. On  27th August,  2005  he  had  been  discharged  from  

service as in view of the Commanding Officer under whom he  

was working, he was ‘unlikely to become an efficient soldier’.

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He had been discharged under the provisions of Army Rules,  

1954  (hereinafter  referred  to  as  ‘the  Rules’).   Before  his  

discharge,  a  summary  enquiry  had  been  made  as  he  had  

remained absent unauthorisedly and in the said enquiry it  

was found that his absence was unauthorized.  Looking at  

the fact that Respondent no.1 had remained absent and had  

not  resumed his  duty,  he  was  declared as  deserter  by  an  

order dated 30th  July, 2005.   

4. In the aforestated circumstances, Respondent no.1 had  

challenged the validity of his order of discharge by filing the  

aforestated  writ  petition  before  the  High  Court  and  after  

hearing the concerned counsel, the High Court had allowed  

the writ petition by setting aside the order of discharge dated  

27th August, 2005, but with liberty to the present appellants  

to hold a fresh enquiry against Respondent no.1. It was also  

provided in the judgment that payment of back wages would  

depend upon the final outcome of the fresh enquiry, which  

might be initiated against Respondent no.1.  

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5. Being aggrieved by the aforestated judgment, the Union  

of India and others have filed this appeal.

6. The learned counsel  appearing for  the Union of  India  

mainly submitted that the High Court committed a serious  

error  by  setting  aside  the  order  of  discharge  only  on  the  

ground  that  Respondent  no.1  had  not  been  afforded  an  

opportunity to defend his case before the order of discharge  

was passed.  He further submitted that without issuance of  

show  cause  notice  Respondent  no.1  could  have  been  

discharged from service.

7. The learned counsel appearing for the appellants drew  

our attention to the fact that the order of discharge was just,  

legal and proper for the reason that Respondent no.1 was not  

likely to become a good soldier in view of his indisciplined  

behaviour.   He  further  submitted  that  with  regard  to  his  

absence,  a  summary  enquiry  had been held  on  29th July,  

2005 in pursuance of  an order of the Commanding Officer  

dated 26th July, 2005.  In the said inquiry, it was found that  

in  fact  Respondent  no.1  had  remained  absent  without

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sanctioned leave or in an unauthorized manner for 108 days  

and  for  that  reason  he  had been  declared  deserter  by  an  

order dated 30th July, 2005.

8. The learned counsel also drew our attention to Rule 13  

(3) of The Army Rules, 1954 (hereinafter referred to as ‘the  

Rules’) and submitted that as per the provisions of the said  

rule,  it  was  open to  the  Commanding Officer  to  discharge  

Respondent  no.1,  who  had  not  been  attested  as  per  the  

provisions  of  Sections  16  &  17  of  the  Army  Act,  1950  

(hereinafter referred to as ‘the Act’).

9. He further submitted that being not an attested trainee,  

status of Respondent no.1 was that of a probationer and the  

order of discharge did not contain any stigmatic remark.  The  

order of discharge is an order of discharge simplicitor.  In the  

interest  of  administration,  it  was  not  thought  proper  to  

continue  Respondent  no.1  as  a  trainee  and  therefore,  the  

order  of  discharge  had  been  passed,  whereby  Respondent  

no.1 had been discharged from service.

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10. The learned counsel relied upon the judgments delivered  

by this Court in Ram Sunder Ram v. Union of India (2007  

(13) SCC 255) and Union of India v. Dipak Kumar Santra  

(2009 (7) SCC 370) so as to substantiate his case, that if an  

enquiry  is  made  and  thereafter,  a  non  attested  trainee  is  

discharged, it is not necessary to issue a notice calling upon  

him to  show cause  as  to  why  his  services  should  not  be  

terminated.   According  to  him,  Respondent  no.1  had  

remained  unauthorisedly  absent,  which  was  an  act  of  

indiscipline  and the  said  fact  had been established in  the  

court of enquiry held on 29th July, 2005.  He had also been  

declared  deserter.   Moreover,  as  he  had  not  been  given  

regular appointment as a solider, being like a probationer, it  

was open to the Commanding Officer of Respondent no.1 to  

discharge him from service as per the provisions of Rule 13(3)  

of the Rules.

11. He,  therefore,  submitted that  the impugned judgment  

delivered  by  the  High  Court  is  improper  and  unjust  and  

therefore, it deserved to be set aside.

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12. On the other hand, the learned counsel appearing for  

Respondent no.1 forcefully submitted that there was not only  

violation  of  the  principle  of  natural  justice  but  certain  

provisions  of  the  Rules  had  also  been  violated  by  the  

appellants while passing the order of discharge and therefore,  

the High Court was absolutely right when it quashed and set  

aside the order of discharge.

13. The learned counsel for Respondent no.1 submitted that  

by not issuing show cause notice there was fragrant violation  

of the principles of natural justice.  Moreover, the officer who  

could have passed the order of discharge was the Lt. General  

and Director General of Supplies and Transport and not the  

Commanding  Officer.   He  further  submitted  that  there  is  

virtually  no  difference  between  attested  and  non-attested  

solider and he also submitted that Respondent no.1 had, in  

fact,  not  remained absent  for  108 days.   The said  finding  

arrived at by the court of enquiry was incorrect and therefore,  

also the resultant order of  discharge was bad in law.  He,  

therefore,  submitted  that  the  impugned  judgment  is  just,

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legal  and  proper  and  therefore,  the  appeal  deserved  

dismissal.

14. Upon hearing the leaned counsel, we are of the view that  

the High Court committed an error by setting aside the order  

of discharge and therefore, the appeal deserves to be allowed.

15. It  is  an  admitted  fact  that  Respondent  no.1  had  not  

been attested.  Certain formalities are required to be done for  

being attested as per the provisions of Section 17 of the Act  

and admittedly the said formalities had not been done.   The  

status of Respondent no.1 was just like a probationer, whose  

service could be terminated without holding any enquiry.  In  

spite of the fact that service of Respondent no.1 could have  

been terminated without holding any enquiry, an enquiry had  

been  held  on  29th July,  2005  and  it  was  found  that  

Respondent no.1 had remained absent for 108 days without  

any  sanctioned  leave.   The  said  act  is  an  act  of  gross  

indiscipline.  Absence of Respondent no.1, being a finding of  

fact, we would not like to interfere with the same especially

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when after  holding  the  said  enquiry  Respondent  no.1  had  

also been declared deserter.

16. A person who remained absent unauthorisedly and who  

was declared deserter can never turn out to be a good soldier  

and as per the provisions of Rule 13(3) of the Rules, it is very  

clear  that  the  Commanding  Officer  can  discharge  non  

attested person enrolled under the Act.   The Commanding  

Officer, as per the provisions of Rule 13(3) of the Rules, had  

satisfied  himself  about  the  fact  that  Respondent  no.1  had  

remained  absent  without  sanctioned  leave  and  had  been  

declared deserter and therefore, he was unlikely to become an  

efficient solider.  In the circumstances, we do not find any  

fault  with his  decision about  discharging  Respondent  no.1  

from service.  

17. We  have  perused  the  judgments  referred  to  by  the  

learned counsel for the appellants and we are in respectful  

agreement with the view expressed by this Court to the effect  

that no special notice is required to be given before discharge  

of a person who is not attested,  especially in view of the fact

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that a court of enquiry had already been held on 29th July,  

2005 and Respondent no.1 had been declared deserter by an  

order dated 30th July, 2005.

18. The  learned  counsel  appearing  for  Respondent  no.1  

relied upon certain judgments and made an effort to submit  

that the Lt. General and the Director General of Supplies and  

Transport  was  the  only  officer  who  was  competent  to  

discharge Respondent no.1.  We are not in agreement with  

the said submissions in view of the fact that Table IV of Rule  

13(3) clearly prescribes that the Commanding Officer, under  

whom the non attested person is working, can discharge him  

from service.  It is an admitted fact that the impugned order  

of  discharge  had been passed  by  the  Commanding Officer  

concerned, under whom Respondent no.1 was working and  

the said Commanding Officer had satisfied himself about the  

fact  that  Respondent  no.1  was  not  likely  to  become  an  

efficient soldier.

19. So as to satisfy ourselves, we had called for the original  

record and on perusal of the original record, we have found

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that the court of enquiry had been held and Respondent no.1  

had also been declared deserter.  In the circumstances, we  

are of  the view that the order passed by the Commanding  

Officer dated 27th August, 2005 is just, legal and proper.  The  

judgments cited by the learned counsel for Respondent no.1  

do not appear to be relevant and applicable to the facts of the  

case on hand and therefore, we do not think it necessary to  

discuss the same.

20. In view of the aforestated facts, the High Court should  

not have quashed and set aside the said order of discharge  

which had been passed in accordance with law and therefore,  

we set aside the impugned judgment delivered by the High  

Court.   The appeal  stands disposed of  as allowed with no  

order as to costs.

         .………..……………………J.          (ANIL R. DAVE)

    ………..…………………….J.  (ADARSH KUMAR GOEL)

NEW DELHI; OCTOBER 28, 2015