SEP. SATGUR SINGH versus UNION OF INDIA & ORS.

Citation: [2019] 11 S.C.R. 1023 · Decided: 02-09-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed
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Judgment (excerpt)

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SEP. SATGUR SINGH
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 1857 of 2018)
SEPTEMBER 02, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA , JJ.]
Service Law:
Discharge from service - On account of seven red ink entries
- Plea that discharge order since passed without conducting
enquiry as required under Para 5(a) of Army Instructions dated
28.12.1988, was not sustainable - Held: The nature of enquiry as
contemplated under Para 5(a) is a preliminary enquiry and not a
regular enquiry - The test of preliminary enquiry is satisfied if
explanation of the personnel is submitted and an order is passed
thereon - Thus, as per Para 5(a) adequate opportunity is granted
to the personnel to put his defence - Order of discharge cannot
be said to be unjustified.
Dismissing the appeal, the Court
HELD: 1. Para 5(a) of the Army Instructions/Circular dated
December 28, 1988 deals with an enquiry which is not a court
of inquiry into the allegations against an army personnel.  Such
enquiry is not like departmental enquiry but semblance of the
fair decision-making process keeping in view the reply filed. The
court of inquiry stands specifically excluded.  What kind of
enquiry is required to be conducted would depend upon facts of
each case.  The enquiry is not a regular enquiry as para 5(a) of
the Army Instructions suggests that it is a preliminary enquiry.
The test of preliminary enquiry will be satisfied if an explanation
of a personnel is submitted and upon consideration, an order is
passed thereon. In the present case, the appellant has not
offered any explanation in the reply filed except giving vague
family circumstance. Thus, he has been given adequate
opportunity to put his defence.  Therefore, the parameters laid
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   [2019] 11 S.C.R. 1023
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SUPREME COURT REPORTS
[2019] 11 S.C.R.
down in para 5(a) of the Army Instructions dated December 28,
1988 stand satisfied. [Para 7] [1028-E-G]
2. In reply to the show-cause notice, the appellant has not
given any explanation of his absence from duty on seven
occasions. He has been punished on each occasion for rigorous
imprisonment ranging from 2 days to 28 days.  A Member of the
Armed Forces cannot take his duty lightly and abstain from duty
at his will.  Since the absence of duty was on several different
occasions for which he was imposed punishment of
imprisonment, therefore, the order of discharge cannot be said
to be unjustified. [Para 8] [1028-H; 1029-A-B]
Veerendra Kumar Dubey v. Chief of Army Staff & Ors.
(2016) 2 SCC 627 : [2015] 10 SCR 1013 -
distinguished.
Case Law Reference
[2015] 10 SCR 1013
distinguished
Para 5
 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1857
of 2018.
From the Judgment and Order dated 30.04.2014  in TA No. 286
of 2010 (arising out of CWP 13268 of 2009)/order dated 21.02.2017 of
the Armed Forces Tribunal, Chandigarh Regional Bench at
Chandimandir in MA No. 3876 & 3877 of 2016 in T.A. No. 286 of
2010 (arising out of CWP No. 13268 of 2009)
Aftab Ali Khan, Adv. for the Appellant.
Ms. Madhavi Divan, ASG, A. K. Sharma, Vimla Sinha, Vanshdeep
Dalmia, Suchakshu Jain, Mukesh Kumar Maroria, Advs. for the
Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed on
April 30, 2014 by the Armed Forces Tribunal1, Chandigarh, Regional
Bench at Chandimandir whereby, the discharge of the appellant on
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account of seven red ink entries during his 11 years 9 months and 15
days service was not found to be unjustified.
2. The appellant was served with a show-cause notice on
September 22, 2004 that the appellant has proved himself undesirable
and retention in service is not considered suitable, in respect of seven
punishments: two in the year 1995; one in the year 1998; two in the
year 2000; and two in the year 2004.  The details of his punishments
seven times are as under:
(a) U/s 39(a) of Army Act21 days RI on 02.09.1995
(b) U/s 51 of Army Act28 days RI on 07.09.1995
(c) U/s 39(a) of Army Act21 days RI on 04.08.1998
(d) U/s 39(b) of Army Act07 days RI on 02.11.2000
(e) U/s 63 of Army Act02 days RI on 15.11.2000
(f) U/s 39(b) of Army Act05 days RI on 12.02.2004
(g) U/s 63 of Army Act21 days RI on 25.05.2004
3. In response to such show-cause notice, the reply of the
appellant was that he did not have any other source to look after the
welfare of his children and that he has committed a blunder and
mistakes due to his family problems and that he w
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