UNION OF INDIA & ORS.versusMANOJ DESWAL & ORS.

                        [2015) 12 S.C.R. 942


A                     UNION OF INDIA & ORS.
                                  v.
                     MANOJ DESWAL & ORS.
                  ·(Civil Appeal No. 5015 of2008)
B
                         October 28, 2015
       [ANIL R. DAVE AND ADARSH KUMAR GOEL, JJ.]
       Army Act, 1950 - ss. 16, 17 - Army Rules, 1954 - r.
c 13(3) -Army man-respondent on unauthorized leave for 108
  days- Subsequently declared deserter and discharged from
  service by Commanding Officer- Writ petition by respondent
  - High Court quashed the discharge order since the
  respondent was not afforded an opportunity to defend his
D case and the order was passed without isstJing any notice to
  him - On appeal, held: A person who remained absent
  unauthorized and who was declared deserter can never tum
  out to be a good soldier - Commanding Officer, as per the
E provisions of r. 13(3) had satisfied himself about the fact that
  respondent had remained absent without sanctioned leave
  and had been declared deserter and thus, was unlikely to
  become an efficient solider- In the circumstances, no fault
  with his decision about discharging respondent from service
F - No special notice is required to be given before discharge
  of a person who is not attested, since court of enquiry had
  already been held and respondent had been declared
  deserter- Thus, the order passed by the Commanding Officer
  was just, legal and proper - Judgment passed by the High
G Court set aside.

         Ram Sunder Ram v. Union of India 2007 (13) SCC
         255: 2007 (8) SCR292; Union of India v. Dipak
         Kumar Santra 2009 (7) SCC 370): 2009 (8) SCR
H        281 - referred to.
                                942
  UNION OF INDIA& ORS. v. MANOJ DESWAL & ORS.                       943


                 CASE LAW REFERENCE                                 A

   2007 (8) SCR 292            Referred to.         Para 10

   2009 (8) SCR 281            Referred to.         Para 10

   CIVIL APPELLATE JURISDICTION: Civil Appeal No. B
5015 of 2008.

     From the Judgment and Order dated 17.08.2007 of the
Division Bench of Delhi High Court in Writ Petition (Civil) No.
8400/2006.                                                          c
      YashankAdhyaru, Sr.Adv., R. Balasubramanian, Rekha
Pandey, R. S. Nagar (For B. V. Balramdas), Advs. with him,
for the Appellants.
                                                                    D
    Anil Kumar Bakshi, Dr. Sushil Balwada, Kulbir Singh Malik,
Advs., for the Respondents.

    The Judgment of the Court was delivered:

     ANIL R. DAVE, J. 1, Being aggrieved by the Judgment            E
dated 17th August, 2007 delivered by the High Court of Delhi
in Writ Petition© No. 8004 of 2006, this appeal has been filed
by the Union of India and others.

     2. The facts giving rise t? the present litigation in a nut-   F
shell are as under:

        Respondent no.1 was recruited and was undergoing
training for being appointed to the post of Store Hand Technical
(SHT) in the Army Supply Corps and he had joined his Basic G
Military training at Bangalore on 14th August, 2004. Upon
completion of the training but before being confirmed in service
or being appointed as a soldier, he was granted annual basic
 leave for 28 days from 5th January, 2005 to 1st February, 2005.
 Thereafter, he became sick and hospitalized from 4th February H
944       SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A to Sth February, 2005. Thereafter, he proceeded on casual
   leave for 15 days commencing from 24th February to 1Oth
   March, 2005 and resumed his service on 11th March, 2005
   and on 12th March, 2005 he requested for voluntary discharge
 . possibly because his mother was not keeping good health.
8 Subsequently, on 14th March, 2005, he withdrew his request
   for voluntary discharge and thereafter he remained absent from
   the training without sanctioned leave from 2"d April, 2005 till
   20th July, 2005 and resumed his duty on 21st July, 2005.
c      3. On 27th August, 2005 he had been discharged from
  service as in view of the Commanding Officer under whom he
  was working, he was 'unlikely to become an efficient soldier'.
  He had been discharged under the provisions of Army Rules,
  1954 (hereinafter referred to as 'the Rules'). Before his
D
  discharge, a summary enquiry had been made as he had
  remained absent unauthorisedly and in the said enquiry it was
  found that his absence was unauthorized. Looking at the fact
  that Respondent no.1 had remained absent and had not
E resumed his duty, he was declared as deserter by an order
  dated 30th July, 2005.

       4. In the aforestated circumstances, Respondent no.1 had
  challenged the validity of his order of discharge by filing the
F aforestated writ petition before the High Court and after
  hearing the concerned counsel,. the High Court had allowed
  the writ petition by setting aside the order of discharge dated
  27th August, 2005, but with liberty to the present appellants to
  hold a fresh enquiry against Respondent no.1. It was also
G provided in the judgment that payment of back wages would
  depend upon the final outcome of the fresh enquiry, which might
  be initiated against Respondent no.1.

        5. Being aggrieved by the aforestated judgment, the Union
H of lridia and others have filed this appeal.
  UNION OF INDIA & ORS. v. MANOJ DESWAL & ORS.                   945
                 [ANIL R. DAVE, J.]

    6, The learned counsel appearing for the Union of India A
mainly submitted that the High Court committed· a serious error
by setting aside the order of discharge only on the ground that
Respondent no.1 had not been afforded an opportunity to
defend his case before the order of discharge was passed.
He further submitted that without issuance of show cause notice 8
Respondent no.1 could have been discharged from service.

       7. The learned counsel appearing for the appellants drew
our attention to the fact that the order of discharge was just,
legal and proper for the reason that Respondent no.1 was not C
likely to become a good soldier in view of his indisciplined
behaviour. He further submitted that with regard to his
absence, a summary enquiry had been held on 29th July, 2005
in pursuance of an order of the Commanding Officer dated
26 1ii July, 2005. In the said inquiry, it was found that in fact D
Respondent no.1 had remained absent without sanctioned
leave or in an unauthorized manner for 108 days and for that
reason he had been declared deserter by an order dated 301h
July, 2005.                                                       E

     8. The learned counsel also drew our attention to Rule 13
(3) of The Army Rules, 1954 (hereinafter referred to as 'the
Rules') and submitted that as per the provisions of the said
rule, it was open to the Commanding Officer to discharge          F
Respondent no.1, who had not been attested as per the
provisions of Sections 16 & 17 of the Army Act, 1950
(hereinafter referred to as 'the Act').

     9. He further submitted that being not an attested trainee, G
status of Respondent no.1 was that of a probationer and the
order of discharge did not contain any stigmatic remark. The
order of discharge is an order of discharge simplicitor. In the
interest of administration, it was not thought proper to continue
Respondent no.1 as a trainee and therefore, the order of H
discharge had been passed, whereby Respondent no.1 had
 946         SUPREME COURT REPORTS                    [2015] 12 S.C.R.


  A    been discharged from service.

          10. The learned counsel relied upon the judgments
    delivered by this Court in Ram Sunder Ram v. Union of India
    (2007 (13) SCC 255) and Union of India v. Dipak Kumar
  B Santra (2009 (7) sec 370) so as to substantiate his case,
    that if an enquiry is made and thereafter, a non attested trainee
    is discharged, it is not necessary to issue a notice calling upon
    h,m to show cause as to why his services should not be
    terminated. According to him, Re£pondent no.1 had remained
  C unauthorisedly absent, which was an act of indiscipline and
    the said fact had been established in the court of enquiry held
    on 29th July, 2005. He had also been declared deserter.
    Moreover, as he had not been given regular appointment as a
    solider, being like a probationer, it was open to the
  D
    Commanding Officer of Respondent no.1 to discharge him
    from service as per the provisions of Rule 13(3) of the Rules.

         11. He, therefore, submitted that the impugned judgment
    delivered by the High Cou.rt is improper and unjust and
  E therefore, it deserved to be set aside.

         12. On the other hand, the learned counsel appearing for
    Respondent no.1 forcefully submitted that there was not only
    violation of the principle of natural justice but certain provisions
- F
    of the Rules had also been violated by the appellants while
    passing the order of discharge and therefore, the High Court
    was absolutely right when it quashed and set aside the order
    of discharge.

  G       13. The learned counsel for Respondent no.1 submitted
     that by not issuing show cause notice there was fragrant
     violation of the principles of natural justice. Moreover, the officer
     who could have passed the order of discharge was the Lt.
     General and Director General of Supplies and Transport and
  H ·not the Commanding Officer. He further submitted that there is
   UNION OF INDIA& ORS. v. MANOJ DESWAL & ORS.                947
                 [ANIL R. DAVE, J.]

virtually no difference between attested and non-attested A
solider and he also submitted that Respondent no.1 had, in
fact, not remained absent for 108 days. The said finding arriyed
at by the court of enquiry was incorrect and therefore, also the
resultant order of discharge wes bad in law. He, therefore,
submitted that the impugned judgment is just, legal and proper 8
and therefore, the appeal deserved dismissal.

     14. Upon hearing the leaned counsel, we are of the view
that the High Court committed an error by setting aside the
order of discharge and therefore, the appeal deserves to be C
allowed.

     15. It is an admitted fact that Respondent no.1 had not
been attested. Certain formalities·arerequired to be done for
being attested as per the provisions of Section 17 of the Act D
and admittedly the said formalities had not been done. The
status of Respondent no.1 was just like a probationer, \Nhose
service could be terminated without holding any enquiry.· 1n
spite of the fact that service of Respondent no.1 could have
been terminated without holding any enquiry, an enquiry had E
been held on 291h July, 2005 and it was found that Respondent
no.1 had remained absent for 108 days without any sanctioned
leave. The said act is an act of gross indiscipline. Absence of
Respondent no.1, being a finding offact, we would not like to F
interfere with the same especially when after holding the said
enquiry Respondent no.1 had also been declared deserter.

     16. A person who remained absent unauthorisedly and
who was declared deserter can never turn out to be a good G
soldier and as per the provisions of Rule 13(3) of the Rules, it
is very clear that the Commanding Officer can discharge non
attested person enrolled under the Act. The Commanding
Officer, as per the provisions of Rule 13(3) of the Rules, had
satisfied himself about the fact that Respondent no.1 had H
remained absent without sanctioned leave and had been
948         SUPREME COURT REPORTS                   [2015] 12 S.C.R.


 A    declared deserter and therefore, he was unlikely to become
      an efficient solider. In the circumstances, we do not find any
      fault with his decision about discharging Respondent no.1 from
      service.

 B       17. We have perused the judgments referred to by the
    learned counsel for the appellants and we are in respectful
    agreement with the view expressed by this Court to the effect
    that no special notice is required to be given before discharge
    of a person who is not attested, especially in view of the fact
 c· that a court of enquiry had already been held on 29th July, 2005
    and Respondent no.1 had been declared deserter by an order
    dated 30th...July, 2005.

        18. The learned counsel appearing for Respondent no.1
 D relied upon certain judgments and made an effort to submit
   that the Lt. General and the Director General of Supplies and
   Tran sport was the only officer who was competent to discharge
   Respondent no.1. We are not in agreement with the said
   submissions in view of the fact that Table IV of Rule 13(3) clearly
 E prescribes that the Commanding Officer, under whom the non
   attested person is working, can discharge him from service. It
   is an admitted fact that the impugned order of discharge had
   been passed by the Commanding Officer concerned, under
 r whom Respondent no.1 was working and the said
   Commanding Officer had satisfied himself about the fact that
   Respondent no.1 was not likely to become an efficient soldier.

           19. So as to satisfy ourselves, we had called forthe original
 C] record and on perusal of the original record, we have found
      that the court of enquiry had been held and Respondent no.1
      had also been declared deserter. In the circumstances, we
      are of the view that the order passed by the Commanding
      Officer dated 27th August, 2005 is just, legal and proper. The
 11 judgments cited by the learned counsel for Respondent no.1
    · do not appear to be relevant and applicable to the facts of the
   UNION OF INDIA& ORS. v. MANOJ DESWAL & ORS.                      949
                 [ANIL R. DAVE, J.]

case on hand and therefore, we do not think it necessary to A
discuss the same.

     20. In view of the aforestated facts, the High Court should
not have quashed and set aside the said order of discharge
which had been passed in accordance with law and therefore,         B
we set aside the impugned judgment delivered by the High
Court. The appeal stand disposed of as allowed with no order
as to costs.

Nidhi Jain                                        Appeal allowed.   C