# Ali Jabed v. Union of India and others

- **Citation:** (2005) 1 ILRA 217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-02-04
- **Case number:** Civil Misc. Writ Petition No.25118 of 1996
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-jabed-v-union-of-india-and-others-40428
- **Pages:** 6

## Headnote

Army Rules-Rule 15 (2)(g)II-discharge
from service-Petitioner being habitual
offender-

being
absent-four
times
without leave-4 times award red ink
entry-full opportunity given for defencedischarge from service held-proper.

Held: Para 7 & 9

From the perusal of the aforesaid rule, it
is clear that the power has been
conferred to the Army authorities to take
an
administrative
action
against
a
person, who is serving in the army, as
the petitioner was a habitual offender
and he was warned and he was punished
four times and found absent without
leave as provided U/s 39 of the Army
Act.

It has also been held that the person
concerned
was
given
adequate
opportunity of placing his defence in
accordance with rules and procedure
provided, therefore, it cannot be held
that the punishment which has been
awarded is not correct.
Case law discussed:
AIR 1994 SC 215
AIR 1988-SC 705
AIR 1996-SC 1368
2002 ESC- ?

## Text

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 Ali Jabed V. Union of India and others
217
 cause has to be shown. This is because
the rule provides 10 grace days for
moving the application for setting aside
the ex-parte award."

7. In the instant case admittedly the
order to proceed ex-parte was passed on
1.10.1997 and the award was published
on 1.6.1998. According to Section 6-A of
the Industrial Disputes Act it became
enforceable on 1.7.1998. Admittedly also
the application to recall the ex-parte order
was not filed and has neither been
challenged before the Labour Court nor in
the writ petition before this Court. The
application for restoration has therefore
been filed after about three months from
the date of enforcement of the award. The
Labour Court became functus officio on
1.7.1998; hence the application for recall
of the order filed on 26.9.1998 was not
applicable.

8. For the reasons stated above, no
interference with the impugned order,
which has attained finality, is called for.
The
writ
petition
is
accordingly
dismissed. The interim order granted by
this Court is vacated.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2005

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No.25118 of 1996

Ali Jabed

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri B.K. Chaturvedi

Counsel for the Respondents:
Sri U.N. Sharma
Sri S.K. Rai
S.C.

Army Rules-Rule 15 (2)(g)II-discharge
from service-Petitioner being habitual
offender-

being
absent-four
times
without leave-4 times award red ink
entry-full opportunity given for defencedischarge from service held-proper.

Held: Para 7 & 9

From the perusal of the aforesaid rule, it
is clear that the power has been
conferred to the Army authorities to take
an
administrative
action
against
a
person, who is serving in the army, as
the petitioner was a habitual offender
and he was warned and he was punished
four times and found absent without
leave as provided U/s 39 of the Army
Act.

It has also been held that the person
concerned
was
given
adequate
opportunity of placing his defence in
accordance with rules and procedure
provided, therefore, it cannot be held
that the punishment which has been
awarded is not correct.
Case law discussed:
AIR 1994 SC 215
AIR 1988-SC 705
AIR 1996-SC 1368
2002 ESC- ?

(Delivered by Hon'ble 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 order of discharge dated
16.9.1995 under Rule 13 (3)(v) of the
Army Rules.

2. The fact arising out of the present
writ petition is that the petitioner joined
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INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
 218
the Indian Army as Sipahi on 22.6.1984
and after completion of 11 years, two
months
and
two
days,
has
been
discharged from service on 16.9.1995.
The petitioner's case is that petitioner has
got a clean service record and has
participated in the operation of Sri Lanka
and he is a disciplined soldier and,
therefore, the order of discharge under the
aforesaid Rule is illegal and is liable to be
set aside. The case of the petitioner is that
the petitioner was given only five days
leave to attend his seriously illness wife
from Pathankot to Fatehpur which was
insufficient and a telegram was sent by
the petitioner for its extension and no
reply was given by the authorities and as
such the respondents have taken the
aforesaid days as absent without leave and
for the aforesaid act, the petitioner was
given a punishment of 42 days RI in the
military guard room from where he was
released. While the petitioner was inside
the detention cell, he was asked whether
he wished to continue on service or not
and on his affirmation, an application was
taken from the petitioner inside the cell
for continuing in service on 8.8.1995 in
Pathankot and suddenly, the petitioner
was discharged from service. The
punishment awarded to the petitioner who
has rendered such a long service for more
than 11 years, is having the responsibility
of the family and is entitled to complete
15 years of service for the purposes of
pension. It has also been stated that as
required under the Army Rule 13 (iii)(iv),
as the requirement of the aforesaid rule
has
not
been
completed
which
is
mandatory in nature as no show cause
notice was given to the petitioner before
passing the order of discharge, therefore,
the order of discharge against the
petitioner is unjust, unreasonable and
against the mandatory provision of law.
The further case of the petitioner is that if
there
was
something
against
the
petitioner, the petitioner could have been
trial by the Court Martial without
observing the said procedure, no order of
discharge can be passed.

3. The notices were issued to the
respondents and a counter affidavit has
been filed. The allegation made in the
writ petition and the argument raised on
behalf of the petitioner has been denied
by the respondents alleging that a show
cause notice was given to the petitioner
on 12th August, 1995 as the petitioner was
habitual offender and was unlikely to
become a good soldier and the petitioner
has been awarded four red ink entries,
hence the further retention of the
petitioner in service is not considered
desirable. It has also been submitted on
behalf of the respondents that the
petitioner has also submitted a reply to the
show cause notice. The said reply of the
cause notice has been annexed by the
respondents in the supplementary counter
affidavit as Annexure-2. The respondents
have clearly stated in paragraph 5 of the
supplementary counter affidavit that the
petitioner was awarded punishment U/s
80 of the Army Act four times. The
punishment, which was awarded to the
petitioner is being reproduced below-

Date
of
award
Under
Section
Punishment
awarded
09.07.1986 Section
39
(b) of the
Army Act
28 days RI
and 14 days
detention in
military
custody.
28.1.1992
Section
39(b) of the
Army Act
07 days RI
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 Ali Jabed V. Union of India and others
219
22.6.1992
Section
29(b) of the
Army Act
28 days RI
1.8.1995
Under
Section
39(b) of the
Army Act
28 days RI
and 14 days
detention in
military
custody

4. It has also been stated that the
petitioner was provided opportunities by
the unit concerned to improve himself but
the petitioner had shown utter disregard to
the military discipline and failed to
improve himself and, as such, the
petitioner was discharged finally from the
term service on 17th September, 1995
under Rule 13(iii)(v) of the Army Rules
before completion of his terms of
engagements
being
undesirable
in
accordance with the Army Head Quarters
letter No.A/13210/159/RG-PS2(C) dated
28.12.1988. Since the discharge of the
petitioner was duly sanctioned under the
provision of the Army Rules, being an
unreasonable soldier, he is not eligible for
reinstatement into Army service. It has
also been specifically denied by the
respondents that no representation or
application
was
received
from
the
petitioner as submitted by the petitioner.

5. I have heard learned counsel for
the petitioner and Sri S.K.Rai as counsel
for the respondents and have perused the
records.

6. The argument raised on behalf of
the petitioner regarding that if some
punishment is awarded to the petitioner,
there was no occasion to initiate an
administrative
action
against
the
petitioner under Rule 13(iii)(v) of the
Army Rules. It was incumbent on the
part of the respondents to make an
enquiry and to hold a trial for the
purposes of initiation of action against the
petitioner as no opportunity to the
petitioner was given, therefore, the order
is bad. Rule 13(III)(v) is being quoted
below-

Grounds
of
discharge

Competent
authority to
authorize
discharge
Manner
of
discharge
(v)
All
other
classes of
discharge.
Brigade/Subarea
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
the
contemplated
discharge.

7. From the perusal of the aforesaid
rule, it is clear that the power has been
conferred to the Army authorities to take
an administrative action against a person,
who is serving in the army, as the
petitioner was a habitual offender and he
was warned and he was punished four
times and found absent without leave as
provided U/s 39 of the Army Act. The
contention of the petitioner to this effect
that no administrative action should have
been taken against the petitioner as no
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INDIAN LAW REPORTS ALLAHABAD SERIES
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Court martial was held, therefore, the
punishment is bad and cannot be accepted
as in view of the provisions of Section
125 of the Army Act, it is the army
authorities to choose the forum. In the
Army Act, there are two mode of
punishment, which is to be awarded to the
army personnel, one by a court martial as
provided under the act, and other is
administrative action provided under the
Army Act and the procedure has been
given under Rule 13(iii)(v) of the Rules.
The petitioner has placed reliance upon a
judgment of the Supreme Court reported
in A.I.R.1994, Supreme Court, 215,
Union of India and others Vs. Giriraj
Sharma and has submitted that in view of
the aforesaid judgment the punishment of
dismissal merely on the ground of overstaying leave period is harsh and
disappropriate. The Court has perused the
said judgment and the fact of this case and
the case in hand is clearly distinguishable
as the case before the Hon'ble Supreme
Court, mentioned above was regarding a
civilian
employee,
who
was
an
electrician, sought leave for 10 days on
10th December, 1982. The leave was
granted while he was on leave. He sent a
telegram for extension of leave by 12
days. The said request was rejected.
However, the respondents joined duty on
22nd December, 1982 thereby over-staying
the period of leave by 12 days; for this act
the services were terminated. In that case,
the Supreme Court has said that the order
of High Court quashing the order of
dismissal
from
service
cannot
be
interfered because the Apex Court has
taken
into
consideration
that
the
application was received but the same was
rejected.

8. There is no dispute to this fact
that the case in hand is a case of military
personnel and the discipline in the
military service has to be maintained for
the purposes of security of the country. In
the case reported in A.I.R. 1988, Supreme
Court, 705, Vidya Prakash Vs. Union of
India and others. The question raised
before the Apex Court was in order to
awarding four red ink entries and if a
person is absent without leave, whether
the
punishment
of
dismissal
is
disproportionate or not. In the aforesaid
case the Supreme Court has held that if a
persons is punished for an offence of
absence from duty on four occasions and
there was red ink entry, then the
punishment awarded by the Court-martial
for dismissal of service cannot be said to
disproportionate to the charge leveled
against the person concerned. In the case
reported in A.I.R. 1996, Suspreme Court,
page-1368, Union of India and others
Vs. Corporal A.K.Bakshi and another the
Hon'ble Apex Court, while considering
the similar provisions of Air force, which
is, similar to Air Force Rule 15(2)(g)(ii)
and 18 was under consideration. The
similar provision is in the Army Act and
Rules. It has been held by the Apex Court
that policy of discharge of habitual
offender as prescribed in the policy
directive dated 14.3.1988 discharging a
person in accordance with procedure laid
down does not amount to removal by way
of punishment. It is a discharge under
Rule 15(2)(g)(ii). It is important to
mention here that similar policy for
removal for undesirable and inefficient
soldiers has been framed by the Army
authorities dated 28th December, 1988.
The relevant part is being quoted below.

"JCOs, Wos and OR who have Preved
Inefficient
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 Ali Jabed V. Union of India and others
221
3.
(a)
before
recommending
or
sanctioning
discharge,
the
following
points must be considered :-

(i) If lack of training is the cause of his
inefficiency, arrangements will be made
for his further training.
(ii) If
an
individual
has
become
unsuitable in his arm/service through no
fault of his own, he will be recommended
for suitable extra-regimental employment.

(b) Should it be decided to transfer a
JCO, he may be transferred in his
acting/substantive rank according to the
merits of the case and will not be
recommended for further promotion and /
or increment of pay until he proves his
fitness for promotion and / or increment
of pay in his new unit.
(c) prior to transfer, if such a course is
warranted on the merits of the case, a WO
or an NCO may be reduced to one rank
lower than his substantive rank under
Army Act Section 20(4).

Procedure for Dismissal/Discharge of
undersirable JCOs/Wos/OR

4.
AR 13 and 17 provide that a
JCC/WO/OR
whose
dismissal
or
discharge is contemplated will be given a
show cause notice. As an exception to
this, services of such a persons may be
terminated without giving him a show
cause notice provided the competent
authority is satisfied that it is not
expedient or reasonable practicable to
serve such a notice. Such cases should be
rate, eg, where the interests of the
security of the State so require, Where the
serving of a show cause notice is
dispensed with, the reason for doing so
are required to be recorded. See
provision to AR 17.
5.
Subject
to
the
foregoing,
the
procedure to be followed for dismissal or
discharge of a person under AR 13 or AR
17, as the case may be, is set out below :-

(a)
Preliminary
Enquiry.

Before
recommending discharge or dismissal of
an individual the authority concerned will
ensure: -

(i) that an impartial enquiry (not
necessarily a Court of Inquiry) has been
made into the allegations against him and
that he has had adequate opportunity of
putting up his defence or explanation and
of adducing evidence in his defence.
(ii) that the allegations have been
substantiated and that the extreme step of
termination of the individual's service is
warranted on the merits of the case.

(b) Forwarding of Recommendations.
The recommendation for dismissal or
discharge will be forwarded, through
normal
channels,
to
the
authority
competent to authorize the dismissal or
discharge, as the case may be, along with
a copy of the proceedings of the enquiry
referred to in (a) above.

(c) Action by Intermediate Authorities.
Intermediate authorities through who the
recommendations pass will consider the
case in the light of what is stated in (a)
above
and
make
their
own
recommendations as to the disposal of the
case.

(d) Action by Competent Authority. The
authority competent to authorize the
dismissal or discharge of the individual
will consider the case in the light of what
is stated in (a) above. If he is satisfied
that the termination of the individual's
service is watt ranted he should direct
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INDIAN LAW REPORTS ALLAHABAD SERIES
[2005
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that show cause notice be issued to the
individual in accordance with AR 13 or
AR 17 as the case may be. No lower
authority will direct the issue of a show
cause notice. The show cause notice
should cover the full particulars of the
cause of action against the individual.
The allegations must be specific and
supported by sufficient details to enable
the individual to clearly understand and
reply to them. A copy of the proceedings
or the enquiry held in the case will also
be supplied to th3e individual and he will
be afforded reasonable time to state in
writing any reasons he may have to urge
against
the
proposed
dismissal
or
discharge.

(e) Action on Receipt of the Reply to the
Show Cause Notice. The individual's
reply to the show cause notice will be
forwarded through normal channels to
the authority competent to authorize his
dismissal/discharge together with a copy
of each of the show cause notice and the
proceedings of the enquiry held in the
case and recommendations of each
forwarding authority as to the disposal of
the case.

(f) Final Orders by the Competent
Authority. The authority competent to
sanction the dismissal/discharge of the
individual will before passing orders
reconsider the case in the light of the
individual's reply to the show cause
notice. A person who has been served
with a show cause notice for proposed
dismissal
may
be
ordered
to
be
discharged if it is considered that
discharge would meet the requirements of
the case. if the competent authority
considers
that
termination
of
the
individuals servic3e is not warranted but
any of the actions referred to in (b) to (j)
of Para 2 above would meet the
requirements of the case, he may pass
orders accordingly. On the other hand, if
the competent authority accepts the reply
of the individual to the show cause notices
entirely satisfactory, he will pass orders
accordingly.

9. The Apex Court has further held
that in the said circumstances, discharge
from service cannot be said to be by way
of punishment. The Division bench of
this Court in the case reported in 2002,
ESC (Allahabad), Sugriv Singh Desuriya
Vs. Central Government has also taken
the same view and has held that policy of
discharging of habitual offender cannot be
said to be ultra vires and if a person has
been awarded four red ink entries
punishment cannot be said to be illegal. It
has also been held that the person
concerned
was
given
adequate
opportunity of placing his defence in
accordance with rules and procedure
provided, therefore, it cannot be held that
the punishment which has been awarded
is not correct.

10. After considering all the facts
and the decisions, I am of the view that
the order of discharge cannot be said to be
illegal and the petition is having no merit
and is hereby dismissed.

No order as to costs.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2004

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 1962 of
2002