SHISHIR KUMAR, J. - (1.) BY means of the present writ petition the petitioner has approached this Court for issuing a writ of certiorari quashing the impugned order of discharge, Annexure -1 to the writ petition and rejecting the statutory complaint of the petitioner, Annexure -9 to the writ petition and for issuing a writ of mandamus commanding the respondents to reinstate the petitioner with all consequential benefits.
(2.) THE facts arising out of the present writ petition is that the petitioner was enrolled in Indian Army on 7.12.1999 and after completion of the training he was inducted as soldier. The petitioner had completed 12 years of service in the year 1991 and was discharged under Army Rule 13 (3) Item III (IV). It has been stated that the action of the respondents being not in accordance with law as there was no occasion to discharge the petitioner under the aforesaid rule without holding a Court martial or even summary disposal. It has been stated that a show cause notice was given to the petitioner by an authority namely one Col. Thomas who was not competent mentioning therein regarding certain red entries which were awarded to the petitioner on 20.2.1987, 28.1.1990, 2.10.1990 and 21.2.1991. The said show cause notice was cancelled vide its order dated 8.3.1991. Subsequently, again by the same authority a show cause notice dated 16.7.1991 was given which is Annexure -4 to the writ petition. By the said show cause notice it has been directed to the petitioner as to why the petitioner should not be discharged from service under Rule 13 of the Army Rules and the petitioner was directed to submit a reply. The petitioner on 22.7.1991 gave a reply to the show cause notice. The petitioner submits that on the basis of the said reply an order of discharge under the aforesaid rule has been passed which has been filed as Annexure -1 to the writ petition. The petitioner submits that the aforesaid order of discharge by the Commanding Officer, respondent No. 4 has been violative of Rule 353 of the Defence Services Regulation (Regulation for the Army) 1987. It has also been stated that according to Rule 30, the respondent No. 4 was not competent to issue a show cause notice in view of the provisions contained in Army Rule 13 (3), Item III (V). The Rule 13 (3) III (V) is quoted below : 'Competent authority to authorize Manner of discharge Brigade/Sub Area Commander The Brigade or Sub -Area Commander before ordering the discharge shall if the circumstances of the case permit give to the person whose discharge is contemplated an opportunity to show cause against contemplated discharge.' The petitioner further submits that against the order of discharge the petitioner has submitted a statutory complaint, which has been filed as Annexure -11 to the writ petition. The said statutory complaint under Section 26 of the Act has been dismissed by the order of the Ministry of Defence dated 4.8.1993. The petitioner submits that in view of the well settled principles of law as no reason has been recorded and the authorities concerned while deciding the statutory complaint is duty bound to decide the same by a reasoned and speaking order. As no reasons have been recorded, therefore, the order passed by Central Government dated 4.8.1993 is liable to be quashed.
(3.) NOTICES were issued and a detailed counter -affidavit has been filed in which it has been stated that the petitioner was habitual offender and has failed to show any improvement and has earned four red entries and as such according to the instructions, a show cause notice was served on the petitioner on 27.2.1991. It has also been stated in the counter -affidavit that the matter was placed before the competent authority General Officer Commanding, 18 Infantry Division and the competent authority after applying his mind to the show cause notice submitted by the petitioner and after hearing him personally has sanctioned for termination of the services of the petitioner under the aforesaid rule. A specific averment has also been made in the counter -affidavit that the petitioner was discharged with the sanction of the competent authority that is General Officer Commanding, 18th Infantry Division. Respondent No. 4 had merely executed the directions of the competent authority. Therefore, it cannot be said that the officer who has issued a show cause notice and has passed the order under the Act is not empowered and the order of discharge is, in any way, illegal and against the provisions of the Army Act and Rules. The further submission made on behalf of the respondents is that as the petitioner has been given four red entries and no improvement was shown by the petitioner in spite of the warning given to him, therefore, it was felt necessary by the competent authority to initiate administrative action as provided under Rule 13 of the Rules.;