Punishment of discharge under the Army Rules should be preceded by a preliminary enquiry to save it being struck down as unconstitutional, held the Supreme Court in a recent judgment on Friday.
The harsh view of the Court came on an appeal filed by an Operator of the Artillery Corps who was discharged for earning four “red ink entries” in his 12-year service period. The case highlighted how the Army disregarded a circular of the Government issued on December 28, 1988 mandating a preliminary enquiry and a hearing to such persons who are to be discharged from Army. In the case at hand, the aggrieved petitioner Veerendra Kumar Dubey had explained how the four instances of red ink entries related to “overstaying his leave” due to his own illness and the medical condition of his wife. But he was afforded no hearing or enquiry by the Army, which summarily discharged him on December 14, 1992 under Rule 13 of the Army Rules 1954.
Directing the Army to infuse more humaneness in its Rules, a three-judge Bench headed by Justice TS Thakur said, “The procedural mandate given to the authorities is to ensure that discharge is not ordered mechanically and that the process leading to the discharge of an individual is humanised by the requirement of an impartial enquiry into the matter and fair opportunity to the concerned especially when he is about to complete his pensionable service.” The discharge order of Dubey was set aside on this ground. But since the petitioner had superannuated, the Court directed the Army to treat him in service till such time that he can qualify for grant of pension.
The Army had argued that Rules do not provide for a preliminary enquiry and even if such a procedure is prescribed by the Circular, not complying with it will not nullify the discharge order. It was then the Court examined and found out that several officers in the Army are continuing in service despite award of four red ink entries. “If that be so, the only safeguard against arbitrary exercise of power by the authority would be to ensure there is an enquiry howsoever summary and a finding about the defence set up by the individual…any such unregulated and uncanalised power (exercised by the authority) would in turn offend Article 14 of the Constitution,” said the bench, also comprising Justices V Gopala Gowda and R Banumathi.
Moreover, in the opinion of the Court, four red ink entries was not some kind of “lakshman rekha”, which if crossed would render an individual “undesirable” or “unworthy” to serve in the force. In the petitioner’s case it was on account of overstayed leave which he suitably explained with hospital records as evidence. The relevance of an enquiry also becomes significant, noted the Court, when one realizes the “best part of his life” an Armyman gives to the armed forces, besides the hard stations and difficult living conditions he endures.