# Naik R.K. Mahapatra v. Chief of Army Staff and others

- **Citation:** (2009) 3 ILRA 1017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-23
- **Case number:** Civil Misc. Writ Petition No. 60367 of 2005
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naik-r-k-mahapatra-v-chief-of-army-staff-and-others-41449
- **Pages:** 8

## Headnote

1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
S.S.C.

Defence Service Regulation (Regulation
for Army) 1987-Para 164-Discharge from
Service-on charges of overstaying on
leave-held-valid can not be interfered by
Writ Court.

Held: Para 11 & 12

The Apex Court has further held that in
the said circumstances discharge from
service cannot be said to be by way of
punishment. In Sugreev Singh's case
(Supra), the Division Bench has also
taken the same view.

After
considering
all
facts
and
circumstances of the present case and
decisions of this Court as well as the
Apex Court, I am of view that discharge
of petitioner from service cannot be said
to be illegal or disproportionate.
Case law discussed:
W.P. No. 10816 of 2000, W.P.No. 3201 of
1994 decided on 2.2.2005, 1990 ACJ, 597,
2002 (2) ESC (Allahabad), 207, 2008 (2)
Supreme Court, 302, 2005 (2) ESC, 892.

## Text

3 All] Naik R.K. Mahapatra V. Chief of Army Staff and others
1017
2003(1) UPLBEC 636 Bishan Pal Malik
and others Vs. State of U.P. and others
in support of the contention that the
transfer on caste basis is a colourable
exercise of power. In the aforesaid case,
though the transfers were said to have
been made in administrative exigencies,
the Court found that the purpose was
actually to flush out the officers belong to
a particular caste due to out come of an
action which involved the father of the
Chief Minister. However, in the present
case no such incident has been placed on
record on the basis of which it can be
imagined that the transfer of the police
officers of a particular community is
tainted with ulterior motive.

31. In the last, a faint submission has
been made that the impugned order of
transfer of the petitioner is punitive in
nature as is apparent from paragraph 5 of
the counter affidavit.

32. A perusal of the aforesaid
paragraph reveals that the petitioner had
remained posted for 25 years in the
adjoining districts of Bulandshahr and
Ghaziabad. He was involved in case
crime no.983 of 2008 u/s 379 IPC
pertaining
to
demand
of
illegal
gratification
in
respect
whereof
an
enquiry was conducted and a censure
entry was awarded to the petitioner. It is
in view of above circumstances and the
conduct
of
the
petitioner
that
a
recommendation for his transfer was
made, which on being approved by the
Board has been implemented. Neither the
impugned order of transfer nor the above
paragraph 5 of the counter affidavit is
stigmatic or punitive in nature. It only
narrates the basis of award of censure
entry to the petitioner which may have
formed one of the grounds for his transfer.
Obviously, transfers have to be made on
consideration of certain aspects and the
past record of the petitioner as such
becomes an essential aspect within the
domain
of
administrative
exigency.
Therefore, even if such an entry has
formed a part of decision making process
it can not be said to be objectionable. It is
a well recognised principle of law that the
legality of the order has to be judged
independently only on the basis of the
reasons mentioned in the order itself and
more reasons can not be supplemented by
material other than the order itself.

33. In view of the above discussion,
I am not inclined to exercise my extra
ordinary discretionary jurisdiction under
Article 226 of the Constitution so as to
interfere with the impugned order of
transfer. There is no merit in the petition
and it is accordingly dismissed with no
order as to costs. Petitioner is permitted to
join at the transferred place within a
week.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2009

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 60367 of 2005

No.63829833 Naik R.K. Mahapatra

 ...Petitioner
Versus
Chief of Army Staff and others

 ...Respondents

Counsel for the Petitioner:
Sri Colonel Ashok Kumar
Sri Rohit Kumar

Counsel for the Respondents:
Sri K.C. Sinha, A.S.G.I.
1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
S.S.C.

Defence Service Regulation (Regulation
for Army) 1987-Para 164-Discharge from
Service-on charges of overstaying on
leave-held-valid can not be interfered by
Writ Court.

Held: Para 11 & 12

The Apex Court has further held that in
the said circumstances discharge from
service cannot be said to be by way of
punishment. In Sugreev Singh's case
(Supra), the Division Bench has also
taken the same view.

After
considering
all
facts
and
circumstances of the present case and
decisions of this Court as well as the
Apex Court, I am of view that discharge
of petitioner from service cannot be said
to be illegal or disproportionate.
Case law discussed:
W.P. No. 10816 of 2000, W.P.No. 3201 of
1994 decided on 2.2.2005, 1990 ACJ, 597,
2002 (2) ESC (Allahabad), 207, 2008 (2)
Supreme Court, 302, 2005 (2) ESC, 892.

(Delivered by Hon'ble Shishir Kumar, J.)

1. This writ petition has been filed
for quashing the order of discharge dated
25th May, 2000 (Annexure 10 to the writ
petition) as well as the order dated 31st
May, 2005 (Annexure 17 to writ petition).
Further prayer in the nature of mandamus
commanding the respondent No.1 to treat
petitioner to have continued in Colour
Service till he would have completed
requisite service laid down in Para 164 of
Defence Service Regulation (Regulations
for Army), 1987 with all consequential
benefits.

2. The facts stated in the writ
petition are that petitioner who was
recruited in army was granted annual
leave from 12th September, 1999 upto 28th
December,1999.
Various
other
facts
stated in the writ petition are not
necessary to be mentioned herein. It has
been stated that during leave period,
petitioner was called back and due to
aforesaid fact, annual leave of petitioner
for the year 1999 has been elapsed. A
show cause notice was issued to petitioner
submitting reply and subsequently a show
cause notice was also issued directing
petitioner to submit reply to said show
cause notice. Petitioner has submitted
reply and an order of discharge from
service was passed on the ground that
petitioner was awarded four red ink
entries during his 13 years of service and
petitioner was send on leave for 64 days
but without any permission for extension
of leave, he has overstayed, which is an
offence
under
the
Army
Act
but
respondent
without
adopting
any
procedure as provided under the Act, an
administrative action has been taken
under the Army Rule 13(3)(4) of the
Army Rules. The ground taken in the
discharge certificate was that as petitioner
has earlier been punished under Sections
40, 39, 63 of the Army Act, for various
offences, therefore, he is being discharge
from
service
being
undesirable
as
inefficient solider. Petitioner filed a
complaint as provided under the Act that
too has been dismissed. Hence, the
present writ petition.

3. Counter and rejoinder affidavits
have already been exchanged, therefore,
with the consent of parties, present writ
petition is being disposed of on the
admission stage.

4. Learned counsel for petitioner
submits that the ground taken by
respondents while discharging petitioner
from service cannot be sustained in view
3 All] Naik R.K. Mahapatra V. Chief of Army Staff and others
1019
of the fact that if petitioner has committed
some offence, he is liable for trial by the
Court Martial. Court Martial being a
procedure for punishment under the Act is
to be adopted. Under Section 108 of the
Army Act, there are four types of Court
Martial by which petitioner can be tried.
In case in the opinion of respondents,
petitioner has committed any offence or
overstayed on leave without sanction of
the same, unless and until an opportunity
to that effect is given, petitioner cannot be
discharged from service. Under the Army
Act and Rules, there is a procedure that,
in case, some offence is committed by a
person subject to the Army Act, a court of
enquiry as provided under Rule 177 has to
be ordered by the competent authority and
in case it is found that prima-facie case is
made out, then the commanding officer
will pass an order for holding a Court
Martial either summary, general or
district. But taking action under Rule 13,
without affording an opportunity to
petitioner is not sustainable in law and is
liable to be quashed.

5. Assuming without admitting this
fact, if petitioner was punished earlier on
some offence that cannot be a ground for
discharge of petitioner from army service.
Petitioner has placed reliance upon a
judgement of this Court in C.M.W.P. No.
10816 of 2000 No.5042301A, L.B.Thapa
Vs. Chief of Army Staff and others.
Another judgement has been relied upon
by petitioner in C.M.W.P.No. 3201 of
1994 Shambu Gurung Vs. Union of
India and others decided on 2.2.2005.
Further reliance has been placed upon
1990 ACJ, 597, Chaukas Ram Vs. Sub
Area Commander and Another. Taking
support of the aforesaid judgements,
learned counsel for petitioner submits
that,
in
case,
no
notice
against
contemplated
discharge
having
been
given to petitioner, it will be treated that
order impugned of discharge has been
passed in violation of the procedure laid
down by Rule 13 and also against the
principle of natural justice. Further
argument has been raised that unless and
until submission is recorded that trial of
petitioner by Court Martial is inexpedient
or impracticable against Rule 13, cannot
be taken. In such situation, learned
counsel
for
petitioner
submits
that
discharge order passed by respondents is
liable to be set aside.

6. On the other hand, learned
counsel for respondents submits that
petitioner was NCO Incharge, Kerbside
Petrol Pump and was posted to 45
Company ASC (Supply) Type-B on
3.9.1998. Petitioner had four red-ink
entries from his previous units under
various sections of the Army Act,
awarded
by
different
Commanding
Officer under whom he was working.
Petitioner requested for annual leave for
the year 1999 in the month of December,
1999. His leave was sanctioned and he
was issued a railway warrant for both
ways in advance as per the existing rules.
Petitioner before proceeding on leave has
to handover the charge but petitioner
became absent without leave with effect
from 29.12.1999 without handing over the
charge
of
the
petrol
pump.
An
apprehension roll was issued as he left the
unit without any proper order and
permission.
Petitioner
reported
on
4.1.2000. Thereafter petitioner was sent
on 34 days part of annual leave for the
year 2000 on compassionate ground. His
leave was extended by 30 days till 12th
March, 2000. After re-joining on leave,
petitioner
was
awarded
"Severe
Reprimand" for being absent without
1020 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
leave with effect from 29.12.1999 to
3.1.2000. This was his 5th red ink entry.
Then a show cause notice was issued to
petitioner on 17.1.2000 to discharge on
account of four red ink entries being an
undesirable/ inefficient person. Petitioner
submitted
a
reply
and
same
was
considered and statutory complaint filed
by petitioner has also been dismissed.

7. It has further been submitted on
behalf
of
respondents
that
army
authorities in view of provisions had an
option to try a person either by a Court
Martial or to take an administrative action
as provided under Rule 13 of the Army
Rules. Further Section 20 of the Act gives
power to Army authority to dismiss or
remove any person subject to the act other
than officer. The procedure has been
prescribed that he can be dismissed from
service on the basis of show cause notice
and then he will have a remedy under
Section 26 of the Army Act. The
procedure
for
discharge
has
been
provided under Rule 13 of the Rules.
Reliance has been placed upon a
judgement of this Court reported in 2002
(2) ESC (Allahabad), 207 Sugreev Singh
Desuriya Vs. The Central Government
(H.C.). Placing reliance upon aforesaid
judgement,
learned
counsel
for
respondent submits that this Court while
considering similar provision which is
under the Air Force Act and Rules has
held that if a non-commissioned officer
was discharged from service on the
ground of service no longer required and
unsuitable retention for Air Force on the
ground of red and black ink entries in his
conduct book, this Court has held that, in
such circumstances, it cannot be said that
procedure prescribed and adopted by
respondents is faulted. The Court has
further
held
that
respondents
have
followed the procedure of giving warning
and also issuing a show cause notice after
he again incorporated red-ink entry in the
conduct book and after considering the
explanation has discharged him from
service, it cannot be said to be contrary to
the policy of discharge of habitual
offender. The submission of petitioner
regarding policy as ultra-virus was also
not accepted. Further reliance has been
placed on a Apex Court judgement
reported in Judgement Today, 2008 (2)
Supreme Court, 302 Union of India and
others Vs. Rajesh Vyas. Relevant para
10 is being reproduced below:-

"10. As noted above, policy for
discharge of habitual offender was
considered by this Court in A.K.Bakshi's
case (supra).After analyzing the policy, it
was observed that the whole idea
underlying the policy was to weed out the
indisciplined personnel from the force. It
was further observed that it was a
discharge simplicitor and as such it
cannot be held as termination of service
by way of punishment for misconduct."

8. Learned counsel for respondents
has also placed reliance upon a judgement
of this Court reported in 2005 (2) ESC,
892 Ali Jabed Vs. Union of India and
others. Placing reliance upon aforesaid
judgement,
learned
counsel
for
respondents submits that this Court in
similar
circumstances
taking
into
consideration the previous four red entries
has held that discharge of a person cannot
be said to be by way of punishment and
has held that policy of discharging of
habitual offender cannot be said to be
ultra-virus and if a person has been
awarded
red-ink
entries,
punishment
cannot be said to be illegal. Further it has
been held by this Court that the person
3 All] Naik R.K. Mahapatra V. Chief of Army Staff and others
1021
concerned has given adequate opportunity
of placing his defence in accordance with
rules and procedure provided, therefore, it
cannot be held that punishment awarded
is not correct and proper.

9. I have considered the submissions
made on behalf of parties. From the
record, it is clear that earlier petitioner has
been awarded four red ink entries under
various sections of the Army Act and he
was punished for the same and it was
incorporated in his service record.

(a) Army Act Section 40 (C) on 16 Oct
8914 days RI, by Lt.Col N.C.Dutta
(b) Army Act Section 39 (d) on 30 Mar
96- severe Reprimand by Lt.Col Surjit
Singh.
(c) Army Act Section 63 on 16 Sep 96-
Severe Reprimand by Col Kamal Mohey.
(d) Army Act Section 63 on 02 Apr 96-
Severe Reprimand by Col JS Dhillon.
(e) Army Act Section 30 (a) on 18 Mar
2000- Severe Reprimand by Major J.S.
Shekhawat.

10. Lastly, petitioner was awarded
Severe Reprimand under Section 39(A)
on 18th March, 2000. The argument
raised on behalf of petitioner to this effect
that if some punishment is to be awarded
to petitioner, there was no occasion for
initiating an administrative action against
petitioner Under Rule 13 (3)(iv) of the
Army Rules. It was incumbent on the part
of respondents to have an enquiry to hold
a trial for the purposes of initiations
action against petitioner. Rule 13 gives
the power to the Sub Area Commander
ordering discharge in the circumstances of
the case permit to give the person whose
discharge is contemplated, an opportunity
to show cause against the contemplated
discharge is to be given. From the perusal
of aforesaid rule, it is clear that power has
been conferred to army authorities to take
administrative action against a person
who is serving in the army. From the
record it is clear that petitioner was
habitual offender and earlier he was
punished four times under various section
of the army. The contention regarding that
no administrative action should have been
taken against petitioner as no Court
Martial
has
been
held,
therefore,
punishment is bad in law and cannot be
accepted in view of provision of Section
125 of the Act. It is the army authority to
choose the forum. Under the Army Act,
there are two modes of punishment which
can be awarded to a army person, one by
a
Court
Martial
and
another
is
administrative action provided under
Army Act and procedure provided under
Rule 13 of the Rules. The decision citied
by learned counsel for petitioner is not
applicable to the present case as in
Chaukas Ram's Case (Supra), it was not a
case of red-ink entry. In the aforesaid
case, petitioner was involved in a crime
and has concealed the said fact. The other
two cases relied upon by learned counsel
for petitioners relates to the decision of
the statutory complaint. This Court in that
circumstances has directed the army
authorities to pass appropriate orders to
decide the statutory complaint. The
submission of the learned counsel for
petitioner to this effect that punishment
awarded to petitioner is very harsh. In my
opinion, case in hand is a case of military
personnel and discipline in the military
service has to be maintained for the
purposes and security of the country. In
the case of Vidya Prakash Vs. Union of
India reported in AIR 1988 Supreme
Court, 705, question raised before the
Apex Court was in order to withdrawing
red-ink entries and if a person is absent
1022 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
without leave, whether the punishment of
dismissal is disproportionate or not. The
Apex Court has held that if a person is
punished for an offence of absent from
duty on four occasions and red ink entry
has been awarded, punishment awarded
by the Court Martial for dismissal from
service
cannot
be
said
to
be
disproportionate to the charges levelled
against the person concerned. In AIR
1996 Supreme Court, 1368, Union of
India and others Vs. A.K.Bakshi, while
considering similar provision of Air
Force, which is in the Army Act, it has
been held by the Apex Court that policy
of discharge of habitual offender as
prescribed in the policy discharging a
person in accordance with law with the
procedure laid down does not amount to
removal by way of punishment. It is a
discharge under the Rules. Similar policy
for
removal
for
undesirable
and
inefficient solders have been framed by
the
Army
Authorities
dated
28th
December, 1988. The relevant part is
being quoted below:-

"JCOs, Wos and OR who have
proved inefficient:

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 extraregimental 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
undesirable JCOs/WOs/OR

4. AR 13 and 17 provide that a
JCO/WO/OR
whose
dismissal
or
discharge is contemplated will be given a
show cause notice. As an exception to
this, services of such a person may be
terminated without giving him a show
cause notice provided the competent
authority is satisfied that it is not
expedient or reasonable practice to serve
such a notice. Such cases should be rare,
e.g., 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 AR17, 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 adequate opportunity of
3 All] Naik R.K. Mahapatra V. Chief of Army Staff and others
1023
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 authorise 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
whom 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 authorise
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 wait ranted he
should direct 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 the 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
authorise
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 service 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."
1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
11. The Apex Court has further held
that in the said circumstances discharge
from service cannot be said to be by way
of punishment. In Sugreev Singh's case
(Supra), the Division Bench has also
taken the same view.

12. After considering all facts and
circumstances of the present case and
decisions of this Court as well as the
Apex Court, I am of view that discharge
of petitioner from service cannot be said
to be illegal or disproportionate.

13. In view of aforesaid fact, the
writ petition is devoid of merits and is
hereby dismissed.

No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2009

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No. 57675 of 2007

Jafar Khan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rohit Upadhyay

Counsel for the Respondents:
Sri K.K. Chand
Sri Rajesh Kumar Yadav
C.S.C.

Group-D Employees Service-Rule-1985Cancellation of appointment of class 4th
employee- working government Girls
Inter College- Principle is the only
competent authority of order impugned
passed by Secretary- without Notice
opportunity without application of mind
held illegal principle of Natural justice
violated cannot sustain.

Held: Para 12 & 13

In view of the aforesaid and the
undisputed
position
with
regard
to
applicability of the rules, the competent
authority being the Principal, the order
of cancellation, termination or otherwise
could have only been passed by the
Principal of the institution. The State
Government does not have any power
either defined under the aforesaid Rules,
1985 or even as a residuary power to
determine status of employment of a
Class-IV employee of a Government Girls
Degree College.

In view of this, the directions issued by
the State Government and the direction
issued by the Director of Education at
the
best
can
be
administrative
recommendations. The proceedings are
to
be
initiated
by
the
Competent
Authority. Keeping in view Rule 31
referred
to
herein
above
if
the
appointment of the petitioner was illegal
or invalid, the cancellation has to be
initiated
by
the
Principal
of
the
Institution and it is the Principal who has
to issue a notice to the petitioner and to
cancel his appointment. It is admitted in
the counter affidavit that the impugned
orders have emanated without there
being any notice or opportunity to the
petitioner and the Principal has, as a
matter
of
fact
surrendered
his
jurisdiction
in
favour
of
State
Government as well as Director of
Education. This in the opinion of the
Court is impermissible under law.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Sri Bheem Singh, learned
counsel
for
the
petitioner,
learned
standing counsel and Sri K.K. Chand,
learned counsel for respondents No. 1, 2
and 3 and perused the counter affidavit
filed on behalf of the State.