Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos.  7125 – 7126 of 2019 (Arising out of Diary No. 28984 of 2016)

EX. SEPOY SURENDRA SINGH YADAV    .... Appellant(s) Versus

CHIEF RECORD OFFICER & ANR.   …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave to Appeal is granted.  

1. These Appeals arise from orders dated 05.01.2016,

21.03.2016 and 19.05.2016 passed by the Armed Forces

Tribunal,  Lucknow  Bench,  dismissing  the  Transfer

Application filed by the Appellant.  

2. The  Appellant  was  enrolled  in  the  Army  on

26.04.1991.  At the time of his appointment he produced

his  matriculation  certificate  issued  by  the  Madhyamik

Shiksha Mandal, Gwalior, Madhya Pradesh.  On verification

it was found that the certificate produced by him was not

genuine.  A charge-sheet was issued under Section 44 of

the Army Act, 1950 (for short, ‘the Act’) and a preliminary

1

inquiry was conducted against the Appellant.  During the

preliminary inquiry, the Appellant admitted that he did not

have  any  proof  to  show  that  he  had  passed  the

matriculation examination in 1988.

3. The  Appellant  was  tried  by  the  Summary  Court

Martial and was found guilty under Section 44 of the Act.

The Appellant was dismissed from service and sentenced

to undergo rigorous imprisonment for three months in a

civil jail.   

4. Thereafter,  the  Reviewing  Authority  set  aside  the

order  of  termination  and  the  sentence  imposed  on  the

Appellant  and recommended that  the Appellant  may be

reinstated and the proceedings for discharge can be taken.

5. The Appellant  was reinstated on 27.11.1992 and a

show  cause  notice  was  issued  to  him  on  27.05.1993

seeking  an  explanation  as  to  why  he  should  not  be

discharged from service.  There was no response from the

Appellant  to  the  show cause  notice.  The  Appellant  was

discharged from service on 10.07.1993.   He filed a Writ

Petition  in  the  High  Court  challenging  the  order  of

discharge  which  was  transferred  to  the  Armed  Forces

Tribunal,  Lucknow  Bench.   The  Tribunal  dismissed  the

2

Transfer Application holding that no ground was made out

by the Appellant for setting aside the order of discharge.

Dissatisfied with the order of the Armed Forces Tribunal the

Appellant has approached this Court.   

6. The learned counsel for the Appellant submitted that

the order of discharge in exercise of the power under Rule

13 (3) Table III (v) is without jurisdiction.  He argued that

the Appellant  cannot  be dismissed in  exercise  of  power

under Section 20 of the Act after he was exonerated in the

Summary Court Martial.   He further urged that the order of

discharge is vitiated as it amounts to double jeopardy.   He

relied upon a judgment of this Court in  Union of India

and Anr. v. Pursushottam1.

7. Learned Senior  Counsel  appearing for  the Union of

India  justified the order  of  discharge by  submitting that

exoneration in a Summary Court Martial  is not a bar for

initiation of proceedings for discharge.  He also submitted

that the subject matter of the charge-sheet which led to

the Summary Court Martial is completely different from the

allegations made against the Appellant for his discharge

from  service.   He  stated  that  the  order  of  discharge,

1 (2015) 3 SCC 779

3

essentially, was passed under item 3 Table III, annexed to

Rule 13 of the Army Rules, 1954 which was well within the

jurisdiction of the authority who has passed the order of

discharge.   

8. It is relevant to reproduce Section 44 of the Act which

is as follows:

“44.  False  answers  on  enrolment. Any  person

having become subject to this Act who is discovered to

have  made at  the  time  of  enrolment  a  wilfully  false

answer to any question set forth in the prescribed form

of enrolment which has been put to him by the enrolling

officer  before  whom  he  appears  for  the  purpose  of

being enrolled shall, on conviction by court- martial, be

liable  to  suffer  imprisonment  for  a  term  which  may

extend to five years or such less punishment as is in

this Act mentioned.”           

9. As stated above, the initiation of a Summary Court

Martial was for an offence under Section 44 of the Army

Act.  He was finally exonerated by the reviewing authority

but discharged from service in exercise of power conferred

under Rule 13 of the Army Rules.

10. The first submission made by the learned counsel for

the Appellant that no proceedings for discharge could have

been initiated after  he was exonerated in  the Summary

4

Court Martial, cannot be accepted.  In the judgment relied

upon  by  the  Appellant  in  Union of  India  and Anr.  v.

Pursushottam (supra), this Court held that there is no

bar  for  departmental  action  after  exoneration  in  the

Summary Court Martial.  In the said judgment reliance was

placed on  Union of India and Ors. v. Harjeet Singh

Sandhu2 to  conclude  that  if  the  decision  of  the  Court

Martial is not confirmed, disciplinary action for imposition

of a penalty of a dismissal or for that matter discharge,

may be resorted to.  In Pursushottam’s case (supra), the

order of the Summary Court Martial against a Hawaldar in

the Corps of Military Police was set aside in review under

Section 162 of the Act.  This Court was of the opinion that

the order of the Reviewing Authority under Section 162 of

the Act was vitiated.   For  the reasons mentioned in the

said  judgment  this  Court  restored  the  order  of  the

Summary Court Martial.   On the facts of the said case, this

Court held that the show cause notice that was issued to

the Respondent therein ought to have been issued under

Section 20 of the Act instead of Rule 13 (3) Table III (v) of

the Army Rules.   

2  (2001) 5 SCC 593

5

11. As  stated  above,  the  show  cause  notice  that  was

issued to the Appellant in this case was under Rule 13 (3)

Table  III  (v).   Rule  13  specifies  the  authorities  who  are

empowered to authorize discharge in respect of  persons

enrolled  under  the  Act  who  have  been  attested.    The

Officers competent to authorize discharge are mentioned.

The grounds of discharge as contained in Rule 13 (3) are

as follows:

“Grounds  of  discharge.   III  Persons  enrolled

under the Act who have been attested.  

(i) On fulfilling the conditions of his enrolment or having

rechecked  the  stage  at  which  discharged  may  be

enforced.

(ii)  On  completion  of  a  period  of  army  service  only,

there being non vacancy in the Reserve.

(iii) Having been Commanding Officer. Found medically

unfit for further service.  

(iv) At his own request before fulfilling the conditions of

his enrolment.

(v) All other classes of discharge.”

12.   The Appellant was charge-sheeted for producing a

false certificate to show that he passed matriculation. The

proceedings initiated for discharge is on the ground of lack

of requisite educational qualification.  The charges are not

the same.  The submission that is made by the Appellant

6

that he cannot be discharged but can only be dismissed or

removed  under  Section  20  (3)  cannot  be  accepted.

Though, the Respondents committed an error in referring

to Section 20 (3) of the Act, a close scrutiny of the material

on record would indicate that this is a case of discharge.

We  find  no  error  committed  by  the  respondents  in

exercising power under Rule 13 to discharge the Appellant.

As stated earlier, exoneration in a Summary Court Martial

is not a bar for initiation of proceedings for discharge. The

Appellant  does  not  possess  the  requisite  educational

qualifications.   He  cannot  be  continued  in  service.

Therefore, he has been rightly discharged from service.

13. For  the aforementioned reasons,  these Appeals  are

dismissed.   

   ...................................J.                                                             [L. NAGESWARA RAO]

…...............................J.                                                                   [HEMANT GUPTA]

New Delhi, September 06, 2019.  

7