CWP No.777 of 2009 (O & M) :1:
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 24.07.2009
Soni Kumar ... Petitioner
Versus
Union of India and others ... Respondents
CORAM: HON’BLE MR. JUSTICE PERMOD KOHLI
Present: Mr. BS Rathee,Advocate,for the petitioner.
Ms.Geeta Singhawal, Advocate, for the respondents.
PERMOD KOHLI, J, (Oral):
C.M No.12126 of 2009 is allowed. Replication is taken on
record.
CWP No.777 of 2009
I have heard the learned counsel for the parties at length.
The petitioner has challenged the order dated 01.09.2008
(Annexure P-11) and discharge certificate dated 13.09.2009 (Annexure P-
15) whereby the petitioner was discharged from service as a Defence
Security Corps. He has further prayed for a direction to permit him to rejoin
the duty.
The petitioner initially joined the Indian Army as a Clerk on
29.09.1987. He retired from the Indian Army after completion of 19 years
of service with exemplary character on 30.09.2006. The petitioner was re-
enrolled on 09.04.2008 in Defence Security Corps. He was deputed for re-
orientation training at DSE Centre, Cannanore. It is alleged that the
CWP No.777 of 2009 (O & M) :2:
petitioner received a telephonic message on 12.06.2008 from his home that
his younger brother was seriously injured in a scuffle. Another message
was received on 13.06.2008 regarding the involvement of petitioner’s
younger brother and his two minor sons in First Information Report No.77
dated 13.06.2008. The petitioner applied for one month leave on
compassionate grounds. However, only six day’s leave was allowed to the
petitioner with effect from 16.06.2008 to 22.06.2008 with prefix and suffix.
It is stated that the journey time for to and fro itself takes six days. The
petitioner after proceeding on leave requested for extension of 15 days vide
letter dated 21.06.2008. However, no leave was extended. The petitioner
again applied for extension of leave vide telegram dated 25.06.2008.
Another extension was sought on 10.07.2008. On 15.07.2008, respondent
No.3 issued an Apprehension Roll in respect of the petitioner for his
absence without leave from 23.06.2008. The petitioner joined the duty in
DSE Training Centre, Cannanore on 08.08.2008 on his own. He was
issued a tentative charge sheet for absence from duty without leave on
11.08.2008. The petitioner, thereafter, was summarily tried for absence
from duty and was awarded punishment for 28 day’s rigorous imprisonment
and 14 days pay as fine on 21.08.2008. However, remission was awarded
to him in respect to the aforesaid punishment on 01.09.2008. The
respondents, thereafter, decided to discharge the petitioner from service vide
noting initiated on 31.09.2008 (Annexure P-9). It was decided to serve a
Show Cause Notice upon the petitioner. Consequently, Show Cause Notice
dated 02.08.2008 (Annexure P-5) was served upon the petitioner who
submitted his reply on 04.09.2008. On consideration of the reply of the
petitioner, the respondents passed order dated 13.09.2008, discharging him
CWP No.777 of 2009 (O & M) :3:
from service under Army Rule 13 (3) Item No.IV on the ground of unlikely
to become an efficient soldier. The petitioner preferred an appeal against
the discharge order. The aforesaid appeal stands decided vide order dated
05.01.2009 (Annexure R-3).
The contention of the petitioner is that the respondents took a
decision to discharge the petitioner on 01.08.2008 and after taking a
decision, a Show Cause Notice has been issued.
I have perused the order Annexure P-11. It is only a noting
whereunder after giving history of the absence of the petitioner, the
respondents took a decision to initiate action against him for discharge
from service and ordered to serve Show Cause Notice. Whenever a Show
Cause Notice is issued, a effective decision is to be taken.
I do not find any fault with the same. Rule 13 (4) requires
issuance of a Show Cause Notice before passing any order. A Show
Cause Notice has been issued to the petitioner which has been duly replied
by the petitioner. It is only on consideration of the reply that the impugned
order of discharge has been passed. I find no fault in the impugned order
passed by the respondents. Dismissed.
At this stage, learned counsel for the petitioner has submitted
that the order of discharge is likely to debar the petitioner from future
employment. Discharge under Army Rule 13 (4) does not debar the
petitioner from seeking re-employment in any concern.
24.04.2009 (PERMOD KOHLI)
BLS JUEGE
Note: Whether to be referred to the Reporter? YES