UNION OF INDIA Vs MANOJ DESWAL .
Bench: ANIL R. DAVE,ADARSH KUMAR GOEL
Case number: C.A. No.-005015-005015 / 2008
Diary number: 10283 / 2008
Advocates: B. KRISHNA PRASAD Vs
ANIL KUMAR BAKSHI
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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