JUDGMENT
Swatanter Kumar, J.
1. Vide discharge certificate dated 4th August, 2002, the petitioner, Bhim Singh was discharged from army service under Army Rule 13(3) III(v). In the present writ petition, the petitioner has raised a challenge to the correctness of this discharge certificate n different grounds.
2. On 25th April, 1994, the petitioner joined Garhwal Rifles as Rifleman. He was under training for a period of 1 year and thereafter was asked to report at Binna Guri, West Bengal in the year 1995. According to the petitioner, he worked sincerely and to the satisfaction of all concerned. The petitioner had gone on leave and joined his unit 6 days late. He was awarded 28 days’ rigorous imprisonment and a red ink entry was made in his service record for the same. The petitioner was sent to Siachin Glacier where he served for 2 years. During that period once the petitioner had lost his identity card for which he was awarded 7 days’ rigorous imprisonment and again a red mark was made in his service record. Thereafter, the petitioner was transferred to Pune. He had contracted Epilepsy and a Medical Board was conducted in April, 1996. The petitioner took leave and went to his home. The petitioner again joined his duty 7 days late and was awarded punishment for the same. According to the petitioner, there was no dereliction of duty on his part and he tried his best to serve the Army. In the month of July, 2002 while the unit was coming to the Base, the petitioner suffered from Epileptic Convulsion and could not reach the Unit within time, which resulted in another punishment and still another red entry was made in his service record. Finally, the petitioner was discharged from Army service under Rule 13 (3) III (v) as afore-recorded on 4th August, 2002, resulting in filing of the present petition.
3. According to the petitioner, the order of discharge is in violation to the rules, principles of natural justice and amounts to double jeopardy inasmuch as the petitioner had already been awarded punishment for each of the earlier offence and thus, he could not be discharged from army service on the same grounds. This action of the respondent, according to the petitioner, attracts the impermissible concept of double punishment for the same offence.
4. According to the respondents, the case of the petitioner was considered under the relevant rules and a policy decision was taken that an individual with 4 red ink entries was considered undesirable by the competent authority. The Brigade Commander was empowered to discharge such persons from army service. The petitioner had 4 red ink entries from 27th April, 1996 to 17th June, 2002 and considering his entire service record and these red entries, a show cause notice was issued to the petitioner on 21st June, 2002, which was duly received by him. He submitted a reply on 26th June, 2002 wherein he admitted his default and requested the authorities to take a lenient view and allow him to continue in service.
5. Despite the fact that the case was pending for a considerable time and various adjournments were given to the petitioner, no rejoinder was filed on behalf of the petitioner.
6. Rule 13 (3) III (v) clearly empowers the authorities to pass an order of discharge simplicitor. The order of discharge is intended to relieve a person from service without casting any stigma on the service of the person. It is not by way of punishment but is a power vested in the competent authority to discharge a person from army service and is quite distinct from dismissal from service. In terms of provisions of Rule 13 (3) III (v), Sub Area Commander or Brigade Commander is the competent authority to discharge all other classes except which have been specifically provided under the Rules. The Rules have provided an inbuilt procedure before a person can be discharged. Show cause notice should be served upon the person and after receiving his reply, if any, the competent authority has to examine the matter in all seriousness and then pass an order of discharge. This power is obviously not a punitive power but is normally exercised after taking the service record of a person in mind and examining his utility in the service in the years to come. At this stage we may refer to a recent judgment of a Division Bench of this Court in the case of Capt. Raj Kumar Singhal v. Union of India and Anr. (WP(C) No. 1450/2001 decided on 27th July, 2006) where the Court has held as under:
15. learned Counsel for the respondents further contended that in spite of repeated warnings and counselling by the commanding officer, the petitioner continued with his acts of indiscipline which included absence from duty or found in state of intoxication while on duty. Due to the behavior under the Policy of habitual offenders circulated on 14.8.1984 the services of the petitioner warranted the action of his discharge. The respondents have filed along with a counter affidavit, a copy of the conduct-sheet of the petitioner which shows that the petitioner has been awarded 4 red entries and 6 black entries. Mr.Dilip Mehra, learned Counsel for the respondents contended that although the policy dated 14.8.1984 are only guidelines and the petitioner has been discharged under Rule 15 (2) (g) (ii) of the Air Force Rules, 1969, which reads as under:
15. Authorities empowered to authorise discharge. - (1) & 2. xxxx
TABLE
Class Cause Competent Special
discharge authority Instructions
to authorise
discharge
1. 2. 3. 4.
Person enrolled (a) to xxxxxx xxxxxx
under the Act (F) xxxxxxxx
who have attested.
(g) His services
no longer required:
(i) xxxx
(ii) Unsuitable Air Officer i/c
for retention Administration"
in the Air
Force
10. Learned Counsel for the respondents further submitted that at no point of time the petitioner ever contested the punishment so awarded from time to time. It was argued that the case of the petitioner is squarely covered, as per the policy letter dated 14.8.1984; and even assuming without admitting that Rule 74 has been violated, still the petitioner has been awarded total nine punishments, red and black combined.
11.We have heard learned Counsel for the parties and have given our thoughtful consideration as well as perused the record. The counsel for the respondents has taken us through the policy. The entire aim and object of the policy is to deal firmly with the habitual offenders. The policy is based on a study conducted by the Institute of defense Management regarding the existence of habitual offenders among airmen. As per the study the effect of repetitive indiscipline has a serious adverse effect on the general morale and discipline, especially on the young airman joining various Units from the training centres.
12. The first contention of the petitioner, that as per the show cause notice only three red ink entries have been shown, is factually incorrect.
13. Para 2 of the show cause notice mentions that in the total service of six years and eleven months the petitioner was tried and punished on as many as seven occasions, out of which four are red ink entries. A copy of the conduct-sheet was annexed to the show cause notice. The show cause notice goes on to state further that in spite of written warning the petitioner again indulged in acts of indiscipline which included absence from duty on two occasions and was found in the state of intoxication while on duty. In the writ petition the petitioner has nowhere mentioned whether he had replied to the show cause notice or not. The petitioner in terms of the communication dated 27.9.1991 addressed to the Chief of Air Staff had requested the respondents for supply of four documents on the ground that he had misplaced all his documents; and even in that list he never requested for reply to the show cause notice. The only inference that can be drawn is that no reply to the show cause notice was given. The court cannot lose track of the fact that the main ethos of the policy letter dated 14.8.1984 was to weed out habitual offenders among the airmen, as they had an adverse effect on the general discipline and administration in the Air Force. The conduct-sheet which has been filed by the respondents, as Annexure R-1, clearly shows that the petitioner was completely indisciplined and despite warning letter dated 22.12.1987 he refused to make any amends. The acts of indiscipline of the petitioner are totally unbecoming of a member of the Armed Force. The respondents have followed the procedure which is required to be implemented, as per the policy of discharge. Petitioner was duly warned vide letter dated 22.12.1987 about the implications of his persisting in the acts of indiscipline and even one additional punishment would result in discharge from the Air Force under the provisions of Rule 15 (2) (g) (ii) of the Air Force Rule, 1969. The petitioner was thereafter issued a show cause notice and was discharged from service. Having perused the conduct-sheet of the petitioner, the warning letter dated 22.12.1987 and show cause notice dated 4.10.1989, we find that the respondents completely followed the procedure, as per the policy dated 14.8.1984 for discharge of the petitioner. The Hon’ble Supreme Court of India in the case of Union of India v. Corporal A.K.Bakshi and Anr. JT 1996 (3) S.C. 310 has held that the basic idea underlying the Policy for Discharge is that recurring nature of punishments for misconduct imposed on an airman renders him unsuitable for further retention in the Air Force. Suitability for retention in the Air Force has to be determined on the basis of record of service. Relevant portion of the same reads as under:
The punishments referred to in the Policy for Discharge are punishments that have been imposed for misconduct under the relevant provisions of the Act and the Rules. The Policy for Discharge envisages that in cases where an airman has been awarded such punishments six times, he is to be treated as a habitual offender and action for his discharge from service should be taken against him under Rule 15(2) (g) (ii) of the Rules. This action for discharge is not by way of punishment for the misconducts for which he has already been punished. The basic idea underlying the Policy for Discharge is that recurring nature of punishments for misconduct imposed on an airman renders him unsuitable for further retention in the Air Force. Suitability for retention in the Air Force has to be determined on the basis of record of service. The punishments that have been imposed earlier being part of the record of service have to be taken into consideration for the purpose of deciding whether such person is suitable for retention in the Air Force. The discharge in such circumstances is, therefore, discharge falling under Rule 15 (2) (g) (ii) and it cannot be held to be termination of service by way of punishment for misconduct falling under Rule 18 of the Rules.
14. The plea raised by the learned Counsel for the petitioner that there is violation of Rule 74 of the Air Force Rules 1969 as two separate punishments have been awarded for separate offences in a common trial held on 8.3.1989 is of no help to the petitioner as in all ten punishments have been awarded to the petitioner as per the conduct sheet annexed as Annexure-R.1.
15. The plea taken by the respondents, thus is not without merit. The petitioner himself has been responsible for his acts of misconduct, has been awarded punishments and found to be unsuitable for retention in the Indian Air Force. We find no infirmity in the order of discharge dated 21.10.1993.
7. In the present case, the policy decision of the respondents has been placed on record as Annexure R-1 to the counter affidavit. The criteria fixed therein is a decision, which uniformally applies to various members of the force. In furtherance to the policy decision and the provisions of Rule 13, a show cause notice dated 21st June, 2002 was served upon the petitioner by the respondents. The same was received by him on 23rd June, 2002. The petitioner provided no cause much less a sufficient ground to the respondents, which could persuade the authorities concerned to give further retention to the petitioner in service and could not have passed the order of discharge as contemplated under the notice to show cause. The petitioner clearly admitted everything that was stated in the show cause notice and in fact the same is apparent from the record. We are unable to find any error in the order passed as well as any arbitrariness in the action of the respondents. The respondents have considered the entire service record of the petitioner and once he was found to have 4 or more red entries in his service record, he fell within the consequences of the policy for discharge. We find no merit in the contention raised on behalf of the petitioner that order of discharge attracts the principles of double jeopardy in view of the fact that petitioner was punished differently for the offences committed by him. There are different and distinct basis of these two actions and they operate entirely in a different field. The petitioner has not even challenged the policy framed by the respondents under which he was discharge. In fact the power to pass an order of discharge is vested with the respondents in terms of the Army Rules. The respondents have bonafidely exercised such power in the interest of army. We see no reason to interfere with the impugned discharge certificate dated 4th August, 2002.
8. For the reasons aforestated, this petition is dismissed, however, leaving the parties to bear their own costs.