GARG, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 8. 5. 1991 with a prayer that by an appropriate writ order or direction the discharge orders of the Public Prosecutor dated 20. 2. 91 Annex. P/11 at page 46 and Annex. P/12 at page 47 be quashed and the petitioner be reinstated in service with all consequential benefits etc. etc.
(2.) IT arises in the following circumstances : (i) The petitioner joined the Indian Army as a Combatant (Barber) on 28. 4. 1982 for a term of 20 years regular engagement with a reserve liability for 3 years. (ii) The petitioner after completion of training at ASC Centre, Gaya was posted to 508 ASC BN. (iii) The petitioner was promoted to the Rank of Lance Naik during January 1990 while serving under respondent No. 7. (iv) That while serving under Respondent No. 7, the petitioner was found to be involved in some case and was a security suspect and therefore, he was called upon by respondent No. 7 on 28. 5. 90 who handed him over to Hq. Southern Command liaison Unit for interrogation which was carried out on 28/29. 5. 90. (v) After interrogation, the petitioner was placed under close arrest in Military custody vide letter No. 512/13889009/pc/st1 dated 29. 5. 90 (Annex. P/1) at page 33. (vi) While the petitioner was under Military custody, he was further taken to sub-area, Jaipur on 25. 7. 90 where he was subjected to further interrogation and investigation in the matter. (vii) The petitioner was released from Military Custody on 27. 8. 1990. (viii) Thereafter the petitioner was once again placed under close arrest under military Custody from 15. 9. 1990 to 21. 12. 90. (ix) The petitioner was again placed under military custody on 8. 1. 91 without assigning any reason and further served with a show cause notice by respondent No. 4 signed by J. K. Ralli Brig Dy. GOC on 11. 1. 91 vide No. 3327/1/gen/pc/ai dated 10. 1. 91 (Annex. P/3) at page 34. The petitioner was further asked by the show cause notice that the petitioner might communicate something in his defence if he so wished within a period of 30 days from the receipt of this notice failing which it would be presumed that there was nothing to say in this regard and an action would be taken in terms of Section 20 of the Army Act, 1950 read with Rule 13 of the Army Rules, 1954 (hereinafter referred to as the Rules of 1954 ). (x) Though the petitioner was served with a show cause notice and 30 days' time was given to submit reply, but it is pertinent to mention here that he was neither given any assistance nor any facility to consult any one to prepare his defence and provided with the particulars of the cause of action or the documents on which the authorities had relied upon as required by Rule 17 of the Rules of 1954. (xi) The further case of the petitioner is that he made a request through application dated 18. 1. 91 (Annex. P/4) at page 36 that he being under military custody could not go out and as such arrangements be made to escort him to consult an advocate. (xii) In the meanwhile, the petitioner submitted reply to the show cause notice addressed to respondent No. 4 dated 1. 2. 91 and the same is Ex. P/6 at page 39. (xiii) The respondent No. 7 vide letter No. 512/13889009/pc/st-1 dated 8. 2. 91 (Annex. P/9) at page 43 informed the petitioner with regard to reply to the show cause notice dated 1. 2. 91 that there was no provision to provide him the documents as asked for and as such directed the petitioner to submit a reply to the show cause notice by due date without fail. (xiv) On the fateful morning of 20. 2. 1991, the petitioner was once again asked to sign some blank papers which he declined and was then issued with a movement order No. 512636/a/st 12 signed by A. K. Mathur, Major adjt. for respondent No. 7 stating that the petitioner was hereby discharged locally from Army Service on order of respondent No. 4. The petitioner was also issued with a certificate of service stating the particulars of the petitioner and discharge order in consequence of Rule 13 (iii) of the Army Rules, 1954. Copy of movement order dated 20. 2. 91 is Annex. P/11 at page 46 and copy of discharge certificate is Annex. P/12 at page 47. Hence this writ petition. Reply to the writ petition was filed by the respondents on 23. 10. 91 stating that provisions of Rule 22 of the Army Rules have been fully complied with and it is incorrect to say that any of provisions have been ignored and has not been complied with. It was further submitted that Southern command liaison Unit is an agency in the Army for interrogation of espionage suspects. Since it was a matter of espionaging activities and as such, immediate interrogation by the Southern command liaison Unit was necessary. The summary of evidence was not supplied to the petitioner because the petitioner was not being tried by the Court Martial and summary of evidence is relevant only when there is a trial by the Court Martial. It was further submitted that the petitioner has referred to rule 17 of the Army Rules, but it does not anywhere stipulate that the assistance for reply to show cause notice be provided to the person on whom the show cause notice is served. The document asked for by the petitioner were of confidential nature and as such they were not supplied to the petitioner and at the cost of repetition, it was further submitted by the respondents that Rule 17 of the Rules of 1954 are not applicable in the present case at this stage. For the purpose of clarification, it was submitted that the petitioner was discharged and was not dismissed or removed from the service as has been stipulated in Rule 17 of the Army Rules. It was further submitted by the respondents that the petitioner has been discharged under Rule 13 (iii) (v) of the Army Rues as undesirable character being a security suspect. Hence, the writ petition be dismissed. In this writ petition, the petitioner has challenged the order of discharge dated 20. 2. 91 (Annex. P/11) on various grounds and the learned counsel for the petitioner has raised three main grounds : (i) That in this case, there is violation of statutory provisions. (ii) That non-supply of necessary documents and copies had caused prejudice to the petitioner and thus, the whole proceedings should be termed as illegal and without jurisdiction. (iii) That in this case there is breach of principles of natural justice. Before proceeding further it may be stated here that it is a case of discharge and not a case of removal or dismissal from service. The learned counsel for the petitioner has placed reliance on Sec. 20 of the Army Act, 1950. Sub-clause (1) of Section 20 states that the Chief of the Army Staff may dismiss or remove from the service any person subject to this Act other than an officer.
(3.) THE learned counsel for the petitioner has further placed reliance on Rule 17 of the Army Rules, 1954. Rule 17 of the Army Rules, 1954 is reproduced hereunder : " 17. Dismissal or removal by Chief of the Army Staff and by other officers :-Save in the case where a person is dismissed or removed from service on the ground of conduct which has led to his conviction by a criminal Court or a court-martial, no person shall be dismissed or removed under sub-section (1) or Sub- section (3) of Section 30, unless he has been informed of the particulars of the cause of action against him and allowed reasonable time to state in writing any reasons he may have to urge against his dismissal or removal from the service; Provided that if in the opinion of the officer competent to order the dismissal or removal, it is not expedient or reasonably practicably with the provisions of this rule, he may after certifying to that effect, order the dismissal or removal without complying with the procedure set out in this rule. All cases of dismissal or removal under this rule where the prescribed procedure has not been complied with shall be reported to the Central Government. " A bare perusal of section 20 of the Army Act, 1950 and Rule 17 of the Army Rules, 1954 would reveal that Section 20 of the Army Act is confined in the case of dismissal or removal or reduction and Rule 17 of the Army Rules, 1954 provides the procedure for such Act and thus Section 20 of the Army Act, 1950 and Rule 17 of the Rules of 1954 have no application in the matter of discharge. For discharge Section 22 of the Army Act, 1950 is reproduced hereunder : " 22. Retirement, release or discharge: Any person subject to this Act may be retired, released, or discharged from the service by such authority and in such manner as may be prescribed. " For convenience Section 23 of the Army Act, 1950 is also reproduced hereunder : 23. Certificate on termination of service :- Every junior commissioned officer, warrant officer, or enrolled person who is dismissed, removed, discharged, retired or released from the service shall be furnished by his commanding officer with a certificate in the language which is the mother tongue of such person and also in the English language setting forth :- (a) the authority terminating his service. (b) the cause for such termination; and (c) the full period of his service in the regular Army. " ;