This
is an army case, decided by the Supreme Court of India, but the principle involved
is equally applicable in civil cases also.
This
is a case where it was found that no enquiry whatsoever was conducted by the
Commanding Officer at any stage against the appellant in this case as required
under the procedure. More importantly, there was nothing on record to suggest
that the authority competent had taken into consideration the long service
rendered by the appellant, the difficult living conditions and the hard
stations at which he had served.
The
material facts were not in dispute. It was not in dispute that the appellant
had within a period of 12 years of the service suffered as many as four red ink
entries. All these entries were awarded to him on account of overstaying leave
for a period ranging between 29 days to 66 days.
There
was nothing on record to suggest that the nature of the misconduct leading to
the award of red ink entries was so unacceptable that the competent authority
had no option but to direct his discharge to prevent indiscipline in the force.
Also the ASG, did not dispute the fact that many number of other personnel were
still in service no matter they have earned four red ink entries on account of
overstaying leave. In such cases, the only safeguard against arbitrary exercise
of power by the authority would be to ensure that there is an enquiry howsoever
summary and a finding about the defence set-up by the individual besides consideration
of the factors made relevant under the procedure.
The
SC took notice that it was common ground that a red ink entry might be earned
by an individual for overstaying leave for one week or for six months. In
either case the entry would a red ink entry and would qualify for consideration
in the matter of discharge. If two persons who suffer such entries were treated
similarly notwithstanding the gravity of the offence being different, it would
be unfair and unjust for unequal could not be treated as equal. More
importantly, a person who had suffered four such entries on a graver misconduct
may escape discharge which another individual who has earned such entries for relatively
lesser offences may be asked to go home prematurely. The unfairness in any such
situation makes it necessary to bring in safeguards to prevent miscarriage of justice.
That was precisely what the procedural safeguards purported to do in this case.
In
the result this appeal against a judgment and order dated 14th December 2011
passed by the Armed Forces Tribunal succeeded and was allowed by the Supreme
Court andt he order of discharge passed against the appellant was set aside.
Since the appellant has already crossed the age of superannuation, it was directed
that the appellant should be treated to have been in service till the time he
would have completed the qualifying service for grant of pension but without back
wages. Benefit of continuity of service for all other purpose should, however,
be granted to the appellant including pension. Monetary benefits payable to the
appellant shall be released expeditiously but not later than four months from the
dateof this order.
(Ref.:Supreme Court Judgement dated October 16, 2015 in Veerendra
Kumar Dubey V/s Chief of Army Staff & Ors.)
