Ex Sepoy Surendra Singh Yadav vs Chief Record Officer

Tribunal, Lucknow Bench, dismissing the Transfer

Application filed by the Appellant.

2. The Appellant was enrolled in the Army on

26.04.1991. At the time of his appointment he produced

his matriculation certificate issued by the Madhyamik

Shiksha Mandal, Gwalior, Madhya Pradesh. On verification

it was found that the certificate produced by him was not

genuine. A charge-sheet was issued under Section 44 of

the Army Act, 1950 (for short, ‘ the Act’) and a preliminary

1 inquiry was conducted against the Appellant. During the

preliminary inquiry, the Appellant admitted that he did not

have any proof to show that he had passed the

matriculation examination in 1988.

3. The Appellant was tried by the Summary Court

Martial and was found guilty under Section 44 of the Act.

The Appellant was dismissed from service and sentenced

to undergo rigorous imprisonment for three months in a

civil jail.

4. Thereafter, the Reviewing Authority set aside the

order of termination and the sentence imposed on the

Appellant and recommended that the Appellant may be

reinstated and the proceedings for discharge can be taken.

5. The Appellant was reinstated on 27.11.1992 and a

show cause notice was issued to him on 27.05.1993

seeking an explanation as to why he should not be

discharged from service. There was no response from the

Appellant to the show cause notice. The Appellant was

discharged from service on 10.07.1993. He filed a Writ

Petition in the High Court challenging the order of

discharge which was transferred to the Armed Forces

Tribunal, Lucknow Bench. The Tribunal dismissed the 2 Transfer Application holding that no ground was made out

by the Appellant for setting aside the order of discharge.

Dissatisfied with the order of the Armed Forces Tribunal the

Appellant has approached this Court.

6. The learned counsel for the Appellant submitted that

the order of discharge in exercise of the power under Rule

13 (3) Table III (v) is without jurisdiction. He argued that

the Appellant cannot be dismissed in exercise of power

under Section 20 of the Act after he was exonerated in the

Summary Court Martial. He further urged that the order of

discharge is vitiated as it amounts to double jeopardy. He

relied upon a judgment of this Court in Union of India

and Anr. v. Pursushottam1.

7. Learned Senior Counsel appearing for the Union of

India justified the order of discharge by submitting that

exoneration in a Summary Court Martial is not a bar for

initiation of proceedings for discharge. He also submitted

that the subject matter of the charge-sheet which led to

the Summary Court Martial is completely different from the

allegations made against the Appellant for his discharge

from service. He stated that the order of discharge,

1 (2015) 3 SCC 779

3 essentially, was passed under item 3 Table III, annexed to

Rule 13 of the Army Rules, 1954 which was well within the

jurisdiction of the authority who has passed the order of

discharge.

8. It is relevant to reproduce Section 44 of the Act which

is as follows:

“44. False answers on enrolment. Any person having become subject to this Act who is discovered to have made at the time of enrolment a wilfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before whom he appears for the purpose of being enrolled shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.”

9. As stated above, the initiation of a Summary Court

Martial was for an offence under Section 44 of the Army

Act. He was finally exonerated by the reviewing authority

but discharged from service in exercise of power conferred

under Rule 13 of the Army Rules.

10. The first submission made by the learned counsel for

the Appellant that no proceedings for discharge could have

been initiated after he was exonerated in the Summary

4 Court Martial, cannot be accepted. In the judgment relied

upon by the Appellant in Union of India and Anr. v.

Pursushottam (supra), this Court held that there is no

bar for departmental action after exoneration in the

Summary Court Martial. In the said judgment reliance was

placed on Union of India and Ors. v. Harjeet Singh

Sandhu2 to conclude that if the decision of the Court

Martial is not confirmed, disciplinary action for imposition

of a penalty of a dismissal or for that matter discharge,

may be resorted to. In Pursushottam’s case (supra), the

order of the Summary Court Martial against a Hawaldar in

the Corps of Military Police was set aside in review under

Section 162 of the Act. This Court was of the opinion that

the order of the Reviewing Authority under Section 162 of

the Act was vitiated. For the reasons mentioned in the

said judgment this Court restored the order of the

Summary Court Martial. On the facts of the said case, this

Court held that the show cause notice that was issued to

the Respondent therein ought to have been issued under

Section 20 of the Act instead of Rule 13 (3) Table III (v) of

the Army Rules.

2 (2001) 5 SCC 593

5

11. As stated above, the show cause notice that was

issued to the Appellant in this case was under Rule 13 (3)

Table III (v). Rule 13 specifies the authorities who are

empowered to authorize discharge in respect of persons

enrolled under the Act who have been attested. The

Officers competent to authorize discharge are mentioned.

The grounds of discharge as contained in Rule 13 (3) are

as follows:

“Grounds of discharge. III Persons enrolled under the Act who have been attested.

(i) On fulfilling the conditions of his enrolment or having rechecked the stage at which discharged may be enforced.

(ii) On completion of a period of army service only, there being non vacancy in the Reserve.

(iii) Having been Commanding Officer. Found medically unfit for further service.

(iv) At his own request before fulfilling the conditions of his enrolment.

(v) All other classes of discharge.”

12. The Appellant was charge-sheeted for producing a

false certificate to show that he passed matriculation. The

proceedings initiated for discharge is on the ground of lack

of requisite educational qualification. The charges are not

the same. The submission that is made by the Appellant 6 that he cannot be discharged but can only be dismissed or

removed under Section 20 (3) cannot be accepted.

Though, the Respondents committed an error in referring

to Section 20 (3) of the Act, a close scrutiny of the material

on record would indicate that this is a case of discharge.

We find no error committed by the respondents in

exercising power under Rule 13 to discharge the Appellant.

As stated earlier, exoneration in a Summary Court Martial

is not a bar for initiation of proceedings for discharge. The

Appellant does not possess the requisite educational

qualifications. He cannot be continued in service.

Therefore, he has been rightly discharged from service.

13. For the aforementioned reasons, these Appeals are

dismissed.

...................................J. [L. NAGESWARA RAO]

…...............................J. [HEMANT GUPTA]

New Delhi, September 06, 2019.

7