1 ARMED FORCES TRIBUNAL, CHANDIGARH REGIONAL BENCH AT CHANDIMANDIR MA 2749 of 2013 and OA 2104 of 2012 Sajjan Singh Jangra Petitioner(s) Vs Union of India and others Respondent(s) For the Petitioner (s) : Mr VD Sharma, Advocate For the Respondent(s) : Mr. Sandeep Bansal, CGC. Coram: Justice Vinod Kumar Ahuja, Judicial Member. Air Marshal (Retd) SC Mukul, Administrative Member. ORDER 05.02.2014 1. By this petition the petitioner prays for quashing of the order dated 29.7.2011 (Annexure A-2) vide which he was locally discharged from service under Rule 13(3) Item III(i) of Army Rules, 1954 during currency of two years enhanced service. Further the petitioner has prayed that the respondents be directed to reinstate him in service till his actual date of discharge i.e. 8.2.2013 with all consequential benefits. 2. Brief facts of the case are that the petitioner was enrolled in the Army on 22.1.1977 and discharged on 1.3.1995 as Havildar on completion of his engagement. Thereafter, he joined Defence Security Corps on 8.7.1997 as Naik. He was initially engaged for five years and thereafter extended for five years. He completed his terms of engagement on 08 Feb 2011. After being cleared by the Screening Board and approved by the O I/C Records the petitioner was granted two years extension from 09 Feb 2011 to 08 Feb 2013. Accordingly Part II Order No 0052/ADM/2009 dated 28 Jan 2009 was promulgated. Subsequently the petitioner incurred a Red Ink entry in his conduct sheet on 07 Apr 2009 for an offence committed under section 42 (b), rendering him ineligible for further retention in service. Accordingly he was discharged wef 31 Aug 2011. 3. As per the averments of the petitioner the last extension of service was granted to the applicant from 9.2.2009 to 8.2.2013 vide order dated
2 28.1.2009 (Annexure A-1) which information he sought under the Right to Information Act. As per order Annexure A-1, the petitioner was to be discharged from service on 28.2.2013 but respondent No.2 discharged him on 31.8.2011 illegally without any advance notice before completion of his tenure. It is further averred that on 7.4.2009, the petitioner was awarded severe reprimand (Annexure A-3) during summary trial. The petitioner made request for review of his punishment as per DSR Para 442 but he was informed by the Chief Record Officer to approach the JAG Department to ascertain with regard to any provision. He was also informed that the individual can submit nonstatutory complaint under AO 13/2006/PS to the higher authority. In pursuance thereto the petitioner submitted a non-statutory complaint dated 26.10.2010 but no action was taken and the petitioner discharged locally under Rule 13(3) item III(i) of the Army Rule, 1954 on 31 st August, 2011. 4. The contention of the petitioner is that before passing the discharge order, no opportunity of hearing or show cause notice was given/issued. The order of discharge dated 31.8.2011 before completion of his term of engagement i.e. 28.2.2013, is without any jurisdiction as the applicant was discharged under Rule 13(3) item III(i) and the competent authority to discharge the individual under the said rule was the Commanding Officer. Aggrieved against the illegal and arbitrary discharge order, the petitioner filed the present OA. The learned counsel relied upon the judgment of the Principal Bench, New Delhi in the case of Ex Sep Chhatar Pal v. Union of India and others (TA No. 550 of 2009 arising out of WP(C) NO. 10708 of 2004 of Delhi High Court) decided on 4.4.2012 and judgment of this Tribunal in case of Raghubir Singh v. UOI and others (OA No. 1589 of 2011 decided on 2rd March, 2012, in support of his contention. 5. The respondents in their written reply bring out that the petitioner has been rightly refused extension in service for two years in conformity with laid down instructions. The alleged Non-statutory complaint of the petitioner was never received by the respondents. The policy issued vide IHQ of MoD (Army) letter No. B/33098/AG/PS 2 (c ) dated 20. Sep 2010 stipulates that personnel who earned punishment under Army Act Section 42( a ) and (b) are debarred for three years further extension of service. In the present case the
3 petitioner had completed his term of engagement, he was granted extension of two years enhanced service limit from 9 th Feb 2011 to 8 th Feb 2013. Screening Board proceedings for extension of two years enhanced service limit was held at DSC Records and approved by the OIC Records. His Part-II order regarding 2 years extension was published vide DSC Records Part II order dated 28 th January, 2009. Subsequently the petitioner had incurred a red ink entry on 7 th April, 2009 for an offence committed under AS Sec 42(b) which made him ineligible for enhanced service limit. As per IHQ of MoD (Army) letter dated 20 th September, 2010, he was debarred for extension of tenure upto 6 th April, 2012. Hence his two years extension of enhanced service limit granted with effect from 9 th February, 2011 to 8 th February,2013 automatically became null and void. Accordingly his discharge order was issued vide DSC Records letter dated 29 th Jul, 2011 and petitioner discharged wef 31.08.2011. 6. We have heard the learned counsel for the petitioner as well as the respondents and have gone through the record of the case. 7. As per the records, the petitioner enrolled in the Army on 22.1.1977 and was discharged on 1.3.1995 as Havildar on completion of his initial engagement. Thereafter, he joined Defence Security Corps on 8.7.1997 as Naik. On completed his terms of engagement on 08 Feb 2011, after being cleared by the Screening Board and approved by the O I/C Records he was granted two years extension from 09 Feb 2011 to 08 Feb 2013. Part II Order No 0052/ADM/2009 dated 28 Jan 2009 was promulgated. Subsequently the petitioner incurred a Red Ink entry in his conduct sheet on 07 Apr 2009 for an offence committed under section 42 (b), rendering him ineligible for further retention on extension. Accordingly he was discharged wef 31 Aug 2011. 8. The policy on Procedure and criteria for screening of PBOR for grant of extension of service by two years is governed by IHQ (Army) letter No B/33098/AG/PS-2(c) dated 20 Sep 2010. The criteria for retention of the PBOR during the retention period is governed by the considerations as per Appx B to the above quoted letter, which reads as under :-
SFC, New Delhi Eastern IDS. Command, Kolkata, Pune Western Command, PROCEDURE Chandimandir AND CRITERIA FOR SCREENING OF PERSONNEL BELOW Central Command, OFFICER Lucknow RANK (PBOR) FOR GRANT OF EXTENSION OF SERVICE Northern Command, C/o 56 APO 4 BY TWO YEARS. Army Trg Command, Shimla South Western Command, Jaipur A&N Command, 1. Reference Portblair Govt of Inida, Min of Def letter No. 14(3)/98/D(AG) dated 30 May 98, No. SFC, New Delhi F.14(3)/98/D(AG) dated 03 Sep 1998, even number dated 18 Sep 98 and No.14(3)/98/D(AG) dated 29 IDS. Apr 2002. 2. The PROCEDURE revised terms of AND enhanced CRITERIA service/tenure FOR SCREENING and age limits for OF retirement PERSONNEL in respect BELOW of PBOR were issued vide OFFICER Govt. of RANK India, (PBOR) Min of Def FOR letters GRANT under OF reference. EXTENSION These limits OF SERVICE are subject to screening board. BY TWO YEARS. 3. The procedure and criteria for screening of PBOR will be regulated vide the guidelines as explained in the succeeding paragraphs. 4. Screening. All BOOR will be screened for extension by two years by the screening Board to be held 1. Reference on Unit/Regiment/Corps/Records Govt of Inida, Min of Def Office letter basis, No. 14(3)/98/D(AG) as applicable to dated assess 30 their May suitability 98, No. F.14(3)/98/D(AG) for extension. dated The procedure 03 Sep 1998, and even criteria number for screening dated 18 is Sep laid 98 down and No.14(3)/98/D(AG) in Appx A to this letter. dated 29 Apr 2002. 2. 5. The Retention revised of terms a PBOR of enhanced during service/tenure Extended Tenure.- and age The limits retention for retirement of a PBO in respect during of the PBOR extended were issued tenure vide will Govt. be governed of India by, Min the considerations of Def letters under as per reference. Appx B These to this limits letter. are subject to screening board. 3. 6. The Format. procedure Format and for criteria screening for screening is given of in PBOR Appendix will C be to regulated this letter. vide the guidelines as explained in the 7. succeeding Applicability. paragraphs. The revised policy will be made applicable with effect from 01 Apr 2011 to enable 4. Screening. the dissemination All BOOR to all will concerned be screened and for preparatory extension work by two to be years carried by the out screening by Record Board Offices to and be held Line on Unit/Regiment/Corps/Records Dtes. Office basis, as applicable to assess their suitability for extension. The 8. procedure This HQ letter and criteria No. B/33098/AG/PS-2(C for screening is laid ) down dated in 21 Appx Sep 1998 A to on this the letter. suibject4 as amended from time to 5. Retention time will stand of a PBOR superseded during by Extended the instructions/provisions Tenure.- The retention contained of in a this PBO policy during letter. the extended tenure will be governed by the considerations as per Appx B to this letter. Sd/- 6. Format. Format for screening is given in Appendix C to this letter. (Ravin Khosla) 7. Applicability. The revised policy will be made Col Dir/AG applicable PS-2 with effect from 01 Apr 2011 to enable the dissemination to all concerned and preparatory For work Adjutant to be General carried out by Record Offices and Line Dtes. 8. This HQ letter No. B/33098/AG/PS-2(C ) dated 21 Sep 1998 on the suibject4 as amended from time to time will stand superseded by the instructions/provisions Appx B contained in this policy letter. (Refers to Army HQ Letter No. B/33098/AG/PS-2 Sd/- (c ) dated Sep 2010 (Ravin Khosla) RETENTION OF PBOR DURING Col EXTENDED Dir/AG PS-2 TENURE For Adjutant General Retention of PBOR during the extended tenure will be governed by the following considerations: Appx B (a) Medical Standards. The individual should remain in acceptable medical category as applicable (Refers to Army HQ Letter No. during pre-extended tenure. B/33098/AG/PS-2 (c ) dated Sep 2010 (b) Discipline. The individual should not earn any red ink entry (including recordable censure in case of JCOs RETENTION only) during OF the PBOR extended DURING tenure. EXTENDED TENURE Retention If of however, PBOR during it is noticed the extended that there tenure is drop will be in the governed above criteria by the following at any time considerations: during the extended tenure, the PBOR will be discharged under relevant Army Rules within a period of six months after serving the (a) JCO/NCO Medical the Standards. Show cause The notice. individual Period should of six remain months in acceptable is fully meant medical for discharge category drill. as applicable during pre-extended tenure. (c ) Applicability The revised policy will be made applicable w.e.f. 01 Apr 2011 _the (b) dissemination Discipline. to The all concerned individual should and preparatory not earn any work red to ink be carried entry (including out by Record recordable and Line censure in case of Dates. JCOs only) during the extended tenure. If however, it is noticed that there is drop in the above criteria at any time during the extended tenure, the PBOR will be discharged under relevant Army Rules within a period of six months after serving the JCO/NCO the Show cause notice. Period of six months is fully meant for discharge drill. 9. The petitioner while on extension period was subject to disciplinary action under the Army Act, 1950. Section 80 of the Army Act, 1950 empowers (c ) Applicability The revised policy will be made applicable w.e.f. 01 Apr 2011 _the dissemination to all concerned and preparatory work to be carried out by Record and Line a Commanding Officer, or such other officer as specified, to proceed in the prescribed manner against a person subject to the Army Act other than an officer, junior commissioned officer or warrant officer who is charged with an offence under the Army Act and award one or more of the punishments prescribed; varying from imprisonment in military custody upto twenty eight days to penal deductions. The petitioner was awarded severe reprimand Red Ink entry in his conduct sheet on 07 Apr 2009 for an offence committed under:- section 42 (b). Dates.
5 10. It is sole contention of in the petitioner that he was never served with a show cause notice as per policy letter on the subject. A look at para (b) of Appx B of the policy letter RETENTION OF PBOR DURING EXTENDED TENURE reveals: (a) Medical Standards. xxxxxxx (b) Discipline. The individual should not earn any red ink entry (including recordable censure in case of JCOs only) during the extended tenure. If however, it is noticed that there is drop in the above criteria at any time during the extended tenure, the PBOR will be discharged under relevant Army Rules within a period of six months after serving the JCO/NCO the Show cause notice. Period of six months is fully meant for discharge drill. 11 In the judgment of Ex.Sepoy Chhatar Pal v. UOI (supra) the petitioner is requesting for quashing the punishment awarded during summary trial and this judgment is not relevant to the facts of the case. The judgment in Reghubir Singh v. UOI (supra), deals with condonation of shortfall in pensionable service and is also not relevant to the present case. 12. In so far as the Severe Reprimand is concerned, the fact of having incurred is not in dispute. This was earned after complying with the statutory provisions and is not under challenge in the present case. In the case of Ashok Kumar v. Union of India, (2007) 4 SCC 54, the Supreme Court had held that the principles of natural justice may not be applicable in a given case unless a prejudice is shown, as application of principles of natural justice is not necessary where it would be a futile exercise. It was held that principles of natural justice cannot be put in any straitjacket formula and that the principles may not be applied in a given case unless a prejudice is shown if the same is not complied to. The Court further held that the Court of law does not insist on compliance with useless formalities and it will not issue any such direction where the result would remain the same, in view of the factual situation prevailing in a matter or in terms of the legal consequences. 13. In the light of above, we find that the dismissal order dated 29.7.2011 (Annexure A-2) vide which the petitioner was locally discharged from service under Rule 13(3) Item III(i) of Army Rules, 1954 during currency
6 of two years enhanced service does not need any interference. The petition being devoid of any merit is dismissed. The parties to bear their own cost. (Justice Vinod Kumar Ahuja) 05.02.2014 raghav (Air Marshal (Retd) SC Mukul) Whether the judgment for reference is to be put on internet? Yes / No.