R. B. Misra, J. - (1.) -Heard Sri I. R. Singh, learned counsel for the petitioner and Sri Ashok Singh, learned counsel for the respondents. The original records pertaining to the service of the petitioner were summoned and has been perused.
(2.) IN this petition prayer has been made for quashing the discharge and consequential orders passed after discharge and punishment awarded to the petitioner and for a further direction to the respondents not to interfere with the functioning of the petitioner. The facts emerges from the pleadings of the parties are that Ex. No. 13944536 Sep./Nursing Assistant Ram Manorath joined the Indian Army on 26.12.1977 and was deputed to the Army Medical Corps. The petitioner was discharged from service on 3.10.1989 under item III (v) of Rule 13 of the Army Rules 1954, after completion of 12 years and 282 days of regular service. The instant writ petition has been filed by the petitioner in the year 1989 against the show cause notice and thereafter consequent to the discharge order the same was challenged by an amendment application filed by the petitioner for quashing the same. According to the petitioner the discharge of the petitioner by the respondents on the ground of four red ink entries in the service was against his reply dated 12.8.1989 and ignoring the long service of 11 years 9 months and 26 days, where only three years more remains for pensionary service of the petitioner, however, ignoring the long service of the petitioner the respondents have passed the order dated 27.10.1989 indicating that the same is no longer required without assigning any reason by a non-speaking order. According to the petitioner the discharge of the petitioner is against the spirit of the Army Circular letter dated 11th March, 1985. The circular dated 11th March, 1985 reads as below : "Copy of Army H.Q. letter No. A/13210/A.G./R.S.-2 (C) dated 11th March, 1985. As Above (1) It has been laid down vide this H.Q. letter No. A/210/A.G./R.S.-2 (C) dated 23rd August, 1985 that an individual who has proved himself undesirable and whose retention in service considered inadvisable will be recommended for discharge or dismissal. In view of the above policy, normally who incurs four red ink entries in his conduct sheet as discharged from service under the provisions of A.R. 13 (iii) as service no longer required. (2) In this connection, it is clarified that discharge from service consequent to four red ink entries is not a mandatory or legal requirement, while taking cognizance of four red ink entries and recommending discharge of O.R. in terms of A.R. 13 (iii) (v) the Commanding Officer must consider the nature of offence for which each red ink entry has been awarded and not to be harsh with the individuals, especially when they are about to complete pensionable service. Before taking a decision in this regard, due consideration should be given to the long service, hard stations and difficult living conditions that the O.R. has been exposed to during his service. Each case of discharge consequent ordered only when it is considered absolutely necessary in the interest of service. As an additional safeguard, such discharge should be approved by the next high commander. Sd. xxxxx (Sami Khan) Maj. Gen. Additional D.G.R.S. for C.D.A.S. CONFIDENTIAL"
(3.) ACCORDING to the petitioner, discharge of the petitioner from service is arbitrary, mala fide and by way of punishment, without affording opportunity of hearing to the petitioner, in contravention of Rule 13 (iii) (v) of the Army Rules, and is also against the verdict of the different judgments in Shri Chaukas Ram v. Sub Area Commander, Allahabad and others, 1990 (2) AWC 936 : (1990) 3 UPLBEC 1876 ; Ram Pravesh Rai v. Union of India and others, 1988 UPLBEC 783 ; Captain Rachpal Singh v. Union of India, 1987 UPLBEC 114 (SC) and Captain Virendra Kumar v. Union of India, AIR 1981 SC 947. In Shri Chaukas Ram (supra) in paragraph 10 it has been held as under : "10. In this connection it may be mentioned that by a letter dated 11.3.1985 of the Army Head Quarter directions had been issued requiring that the officials should not be harsh while taking an action of discharge consequent to the four red ink entries or in term of Rule 13 (3) (iii) (v), especially when the person concerned is about to complete pensionable service. It was further provided that before taking action due consideration should be given to the long service and discharge should be ordered only when it is considered absolutely necessary in the interest of service. Para 2 of the aforesaid letter is quoted below : "2. In this connection, it is clarified that discharge from service consequent to four red ink entries is not mandatory or legal requirement, while taking cognizance of four red ink entries and recommending discharge of or in term of Rule 13 (iii) (v) the Commanding Officer must consider the nature of offence for which each red ink entry has been awarded and not be harsh with the individuals especially when they are about to complete pensionable service. Before taking a decision in this regard, due consideration should be given to the long service, hard stations and difficult living conditions that the O.R. has been exposed to during his service. Each case of discharge consequent ordered only when it is considered absolutely necessary in the interest of service. As an additional safeguard, such discharge should be approved by the next High Commander." ;