JUDGMENT V.C. Misra, J.
1. The case of the petitioner in brief is that the petitioner was enrolled in the India Army on 31.7.1982 and after attestation as a soldier was earmarked to Gorkha Rifles and rose to the rank of Lans Naik. Due to the annoyance of superior officer, the petitioner was arbitrarily and illegally detained in quarter guard in November 1993 where he was forced to sign certain blank papers. In para-4 of the writ petition, it has been stated that on 1.12.1993 the petitioner was informed that he has been discharged from the Army service on his own request as laid down in Army Rule 13(3) Item III(ii). The petitioner had not volunteered for discharge and as such he was entitled under Rule 134(b) of Defence Services Regulations to continue till he completed 15 years of service or till he attains the age of 40 years. In para-8 of the writ petition, it has been stated that even if it is hypothetically assumed that he had volunteered, such discharge was not permissible under Army Rule 13(3) Item III(ii). As per para-10 of the writ petition, the petitioner had requested for cancellation of his premature discharge, addressed to the Chief of the Army Staff, a copy of which was served on the respondent No. 2 who declined to accept the same on the plea that once the petitioner had been discharged, he had no right of representation under Section 26 of the Army Act, 1950. It has been stated in paras-12, 13 & 14 of the writ petition, that the petitioner had again moved a representation dated 27.12.1993 followed by another representation dated 19.1.1994 to the Chief of the Army Staff and the respondent No. 2.
2. The petitioner being aggrieved, by in-action on the part of the respondents to reinstate him in service, filed the present writ petition invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, mainly on the ground that the petitioner's premature, manipulated and mala-fide discharge against his wishes was against the principles of natural justice, law and the statute and Army Rules 13(3) Items III(ii) and (iv). The rights of equality guaranteed under Article 14 of the Constitution of India was violated by the respondents. The petitioner has sought the relief of continuity in service and quashing of the impugned order of his discharge dated 1.12.1993.
3. Counter affidavit has been filed on behalf of the respondents along with a supplementary counter affidavit wherein the allegations made against the respondents have been denied. It has been stated therein that the petitioner was discharged from service with effect from 1.12.1993 at his own request made under extreme compassionate grounds under the provisions of Rule 13(3) Items III (iv) of the Army Rules, 1954 and not under Rule 13(3) Items III(ii) of the said Rules. A copy of the said application duly signed by the applicant-petitioner and recommended by his commanding officer, has been annexed as annexure-CA-1 to the counter affidavit. It has been categorically denied that the petitioner was kept in detention/custody and no one forced him to sign on the blank papers. Since, the petitioner had not completed 15 years of maximum pensionable service at the time of his discharge, he was not eligible for service pension as per existing Rules. In para-15 of the counter affidavit, it has been specifically submitted that the application moved before the Chief of the Army Staff against discharge has already been suitably replied. The petitioner never requested for cancellation of his discharge till he was finally struck off strength.
4. The respondents have filed rejoinder and supplementary rejoinder affidavits and also written arguments. The petitioner has annexed true copy of discharge letter dated 19.11.1993 as annexure-RA-1 to the rejoinder affidavit and a representation dated 9.11.1993 addressed to the Chief of the Army Staff which was considered and was rejected by the G.O.C. and intimated to the petitioner through letter dated 3.5.1994. True copies of which have been filed as annexures-1 & 2 to the application filed fey the petitioner supported by an affidavit dated 10.7.1997.
5. Learned counsel for the petitioner has drawn the attention of the Court to Section 23 of the Army Act, 1950 in respect with termination certificate of service, and Rules 11, 13(3) of the Army Rules, 1954. Learned counsel for the petitioner has submitted that the impugned discharge order is wrong, bad and illegal and has not been issued by the competent authority in accordance with law. The commanding officer of the battalion is not authorized to issue the impugned discharge order but it is the officer commanding-core commander who can issue the discharge order as per paras-36 & 37 of the Regulations for the Army, 1987. The competent authority has been defined in Rule 13 of the Army Rules 1954 and Section 2(2) of the Army Act, 1950. Under para-142 of the Regulations, an ex-serviceman is permitted to re-enrollment as provided therein and the petitioner at the most should have been re-enrolled to cover-up the short-fall of the period of 15 years for his pensionary benefits. Para-146 of the Regulations also permits, compulsory retention in service, even beyond the prescribed age limit and, thus, the respondents have deliberately ignored the provisions of Army Rule 11(2) and the said provisions of the Regulations.
8. I have gone through the entire pleadings and also looked into the original record including the photostat copies of some of the record produced by the respondents, and find that the petitioner had prior to 1.12.1993 the date on which the discharge was to be given effect to, submitted a representation dated 9.11.1993 addressed to the Chief of the Army Staff, that due to vendetta, he had been asked to sign on blank papers and was being discharged, the tenure of his services had not yet completed and that he wanted to serve the Indian Government and may be allowed to continue in service. This representation was rejected by the General Officer Commanding and intimation was sent to the petitioner through letter-dated 3.5.1994. It seems that the said representation was never placed before the Chief of the Army Staff for his consideration. The second request for cancellation of his premature discharge addressed to the Chief of the Army Staff, was moved on 27.12.1993 through registered post followed by another representation dated 19.1.1994, copy of which was also served upon the respondent No. 2 who declined to accept the same on the plea that once the petitioner had been discharged he had no right to file the representation under Section 26 of the Army Act, 1950. These facts have been admitted in para-15 of the counter affidavit dated 6.8.1994 sworn by Captain Goverdhan Singh. In para-3 of the counter affidavit dated 23.12.2000 sworn by Captain O.N. Tiwari and in para-8 of the Supplementary Counter Affidavit sworn by Captain Goverdhan Singh, it has been stated that the petitioner had been awarded severe reprimand on 10th November 1993 by Colonel P.D. Gaur, Commanding Officer, 4/9 Gorkha Riffle for an offence under Section 26 of Army Act and his character was assessed as good by his Commanding Officer on the offence at the time of discharge before SOS dated 1.12.1993. Whereas, the petitioner in para-12 of the rejoinder affidavit had stated that in accordance with the provisions contained in Rule 170 of the Defence Services Regulations, 1987 he was down graded due to vindictive approach of the Commanding Officer. The allegation of bias had already been made in the representations filed by the petitioner, which has also been referred to in the petition.
9. Para-1 of the discharge letter dated 9.11.1993 curiously mentions that no representation/request for cancellation/deferment of discharge date will be entertained meaning thereby that no opportunity of hearing shall be granted any further even if the petitioner was entitled to move such representations and be heard in accordance with law and procedure, which not only smacks prejudice but also denotes of depriving the petitioner of his legal rights to be heard. The jurisdiction and the power under Section 26 of the Army Act can be exercised solely by the Chief of the Army Staff.
10. Learned counsel for the respondents has not been able to justify the reason of delay in disposing off the representation-dated 9.11.1993 by rejection vide communication letter dated 3.5.1994 by the General Officer Commanding. A copy of which is being filed as annexure-2 to the Application No. 42802 of 1997 supported by an affidavit-dated 10.7.1997.
11. The contention of the learned counsel for the petitioner is, that the rules framed by the Government of India known as Army Rules, 1954, under the powers vested in it, for cancellation of the discharge, under the provisions of Rule 11(2) of the Army Rules, similar proposition have been brought out in paragraphs-142 and 144 to 146 of the Defence Services Regulations (Regulation for Army) 1987, as such the respondents cannot be allowed to act arbitrarily in violation of the procedural safeguards to negate the law on the statute while dealing with a soldier in a perverse manner. In support of this contention the learned counsel has relied upon the decision of the Apex Court in the case of Ranjit Thakur v. Union of India, . The relevant para-11 of the said Judgment, is quoted below :-
"The procedural safeguards contemplated in the Act must be considered in the context of and corresponding to the plenitude of the summary jurisdiction of the court-martial and the severity of the consequences that visit the person subject to that jurisdiction. The procedural safeguards should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguards envisaged by the statute. The oft-quoted words of Frankfurter, J. in Vitarelli v. Seaton are again worth recalling:
....if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword."
12. In a similar matter when the Army authorities acting mala-fidely discharged the soldier (Non Commissioned Officer) from the Army on his alleged request for premature discharge which was when challenged by statutory complaint/representation followed by Writ Petition No. Nil of 1992 Havildar Clerk (4161876) Narain Singh Rathore v. Union of India and Ors., was disposed off vide order dated 13.7.1992 directing the Chief of the Army Staff to decide the petitioner's representation under Section 26 of the Army Act read with Rule 364 of the Defence Services Regulations. The Chief of the Army Staff while deciding the representation ordered the reinstatement of the petitioner in service with all consequential benefits.
13. In view of the above said facts, and circumstances of the case and observations made hereinabove, this writ petition is disposed off finally with the direction to the Chief of the Army Staff to consider and dispose off the representations of the petitioner along with any fresh representation, which he may file within one month from today, by a speaking order, while exercising its powers under Section 26 of the Army Act read with Rule 364 of the Defence Services Regulations, preferably within a period of three months from the date a certified copy of this order along with any fresh representation is filed before him. No order as to costs.