Ex RFN CK Nakhat Singh vs UOI & Others on 21 November 2025

ORDER

2111.2025 Respondents HON'BLE MR. JUSTICE GOVERDHAN BARDHAR, MEMBER (J) HON'BLE MR SANJIV MITTAL, MEMBER (A)

1. By way of this Application under Section 14 of the Armed Forces Tribunal Act 2007, the Applicant has filed this OA, praying for directing the Respondents to quash and set aside Discharge Order dt 31.10.1999, treat him to be notionally in service in the same rank from the date of discharge till the date of attaining the qualifying pensionable service and thereafter grant him service pension/ pensionary benefits along with interest on arrears @ 9% per annumn.

2. Brief facts of the case are that the Applicant was enrolled in the Army in 1982 as a Cook. While posted to 20 Rajputana Rifles, the Applicant Sustained injuries during exercise for which he was admitted in Military Hospital, Ferozepur and after treatment he was sent on Sick Leave for 20 days. On completion of Sick Leave, the Applicant reported on duty but he was handed over Discharge Certificate by the Head Clerk and was directed to go back to home. The Applicant submits that he was discharged from Service OA No 600/2023 Ex Rn (Ck) Nakhat Singh Vs UOI & Ors without issue of any show cause notice and giving an opportunity of being heard. In reply to the Legal Notice dt 30.10.2023 issued to the Respondents, it was intimated that the Applicant has been paid an amount of Rs. 18,827/ on account of AFPP Fund but nothing stated about his illegal discharge from Service. The Applicant placed reliance on Hon'ble Supreme Court in the case of Veerendra Kumar Dubey Vs COAS, JT 2015 (9) SC 394 and submitted that the Respondents arbitrarily discharged him from Service without taking into consideration the length of service rendered by him. In view of the aforesaid averments, the Applicant has filed present OA.

3. The Respondents have filed a detailed Reply Statement and submitted that the Applicant was enrolled in Army on 26.10.1983 and after rendering 11 years and five days of service (including 387 days of Non Qualifying Service), he was locally discharged from Service on 30.10.1994 (AN) in terms of Rule 13(3) III (V) of Army Rules, 1954 being an Undesirable Soldier. While in service, the Applicant committed various offences under Sections 39(a) Absent without Leave and 39 (b)  Over Stayal on Leave and was awarded Rigorous Imprisonment for five times between 18.03.1985 and 10.07.1994. In addition, he was also awarded punishment of 7 days confinement to lines on 04.04.1985 for an offence under Army Act Section 44, ie., False Answer on enrolment. The Applicant was a perpetual offender and despite giving him ample opportunities, he failed to show improvement in his conduct and military discipline as that expected of a soldier. Under the provisions of Army

(c) dt dt 28.12.1988, a person may Headquarters lett¿r No A/13210/AG/PS-2(c) be discharged from Service as an undesirable soldier, after issuing a Show Cause Notice. The Applicant was issued Show Cause Notice on 22.10.1994 Taking into which was replied to by the Applicant on 30.10.1994. consideration the service profile of the Applicant and the reply filed by him, the Competent Authority decided to terminate the services of the Applicant on administrative grounds in the interest of the organization as his further retention in service would have been a bad example amongst other soldiers. Accordingly, the discharge of the Applicant was sanctioned on 31.10.1994 by the Competent Authority, ie., Commander 65 Infantry Brigade as "Service No Longer Required being an Undesirable Soldier" under Rule 13(3) II (V) of OA No 600/2023 Ex Rfn (Ck) Wakhat Singh Vs UOI & Ors Army Rules, 1954 and, consequently, the Applicant was locally discharged from Service on 31.10.1994 (AN). There is no provision for notional reinstatement of an undesirable soldier in service till the date of attaining the required qualifying service for pension. Moreover, the Applicant has earned only 11 years and 5 days of service (including 387 days of Non Qualifying Service). Since the Applicant has not completed 15 years of minimum qualifying service for grant of pension, he is not eligible for Service Pension in The terms of Rule 132 of Pension Requlations for the Army, 1961 (Part-1). Respondents have also placed reliance on AFT (PB), New Delhi Order in OA No 32/2009 in the case of Ex Rfn Om Lat Vs UOI& Ors and contended that the Applicant was a perpetual offender and cannot be reinstated in service. Further, the OA has been filed after inexplicable delay of more than 23 years. In view of the aforesaid averments, the Respondents have reiterated that the OA is devoid of merit and deserves to be dismissed.

4. After hearing of the case at length and seeking permission of this Bench, Learned Counsel for the Applicant placed on record copies of Hon'ble Supreme Court judgment dt 15.12.2016 in Civl Appeal No 12179-12180/2016 (arising out of Civil Appeal (D) No 34132/2013) in the case of Vijay Shankar Mishra Vs UOI & Ors and Hon'ble Allahabad High Court judgment in the case of Lalta Prasad Singh Vs VOI & Ors, 2017 Supreme (AIT) 1788, which are taken on record.

5. We have heard the counsel for the parties and perused the material placed on record.

6. Procedure for dismissal/discharge of Undesirable soldiers has been mentioned in Army HÌ letter No A/13210/159/AG/PS-2(c) dt 28. 12.1988, the relevant portion of which reads as under: "Procedure for dismissal/discharge of Undesirable JCOs/WOs/OR.

4. AR 13 and 17 prOvide that a JCO/WVO/OR whose dismissal or discharge is Contemplated will be given a show cause notice. As an exception to this, services of SUch a person may be terminated without giving him a show cause notice provided the competent authority is satistied that it is not expedient or reasonably practicable to serve such a notice. Such cases shoulad be rare eg., where the interests of the Where the serving of a show cause notice is security or the State so require. dispensed with, the reasons for doing so are required to be reCorded. See proviso to AR 17. OA No 600/2023 Ex Rfn (Ck) Nakhat Singh Vs UOI & Ors

5.

7. Note: 1. As far as possible, JCO, WO and OR awaiting dismissal orders will not be allowed to mix with other personnel. "13.

Discharge from service consequent to four red ink entries is not a mandatory or legal reguirement. In such cases, Commanding Officer must Consider the nature of offences for whih each red ink entry has been awarded and not be harsh with the individuals, especially when they are Due consideration should be about to Complete the pensionable service. given to the long service, hard stations and difficult Iivng conditions that the OR has been exposed to during his service, and the discharge should be ordered only when it is absolutely necessary in the interest of service. Such discharge should be approved by the next higher Commander. Authorities empowered to authorize discharge are mentioned in Rule 13 of Army Rules, 1954, the relevant portion of which reads as under:

Carrying out dismissal/ discharge. On recejpt of the orders of the competent authority for dismissal/discharge, all action to effect dismissal/discharge will be taken by the Regt Centre/Record Office or unit, as the case may be" Authorities empowered to authoize discharge -

Each of the authorities speaified in column 3 of the Table below, shall be the Competent authority to discharge from service persons subject to the Act specified in Column1 thereof on the grounds specified in column 2.

Any power Conferred by this rule on any of the aforesaid authorities shall also be exeraisable by any other authority superior to it. (2A) Where the Central GOvernment or the Chief of the Army Staff deciades that any person or cass of persons subject to the Act should be discharged from service, either unconditionally or on the fulfilment of certain specified conditions, then, notwithstanding anything Contained in this rule, the commanding officer shall also be the conmpetent authority to discharge from service such person or any person belonging to such cass in accordance with the said decision.

In this table "commanding officer" means the officer commanding the corps or department to which the person to be discharged belongs except that in the case of junior commissioned officers and warrant officers of the Speaial Medical Section of the Army Medical Corps, the "'commanding officer"means the Director of the Medica/ Services, Army, and in the case of junior commanding officers and warrant officers of Remounts, Veterinary and Farms, Corps, the "commanding officer means the Director Remounts, Veterinary and Farms. Category PersonS enrolled Act who Grounds of discharge under the ) to (iv) x have been attested II.

(v) All other classes Table Competent authority to authorize discharge Brigade/ Sub-Area Commander Manner of discharge The Brigade or Sub-Area Commander before ordering the discharge, shall, if the circumstances of the case permit give to the persOn whose discharge is contemplated an opportunity to show cause against the contemplated discharge. OA No 600/2023 Ex Rín (Ck) Nakhat Singh Vs UOI& Ors

8. Hon'ble Supreme Court in its judgment dt 28.07.2023 in Civil Appeal No 246/2017 in the case of Ex Sep Madan Prasad Vs UOI & Ors held that the indisciplined Armed Forces Personnel does not deserve any leniency in grant of punishments, the relevant paragraphs of which read as under: "16. Regulation 448 of the DSR cited by learned counsel contemplated the scale of punishments awardable by the SCM. The said Regulation states in so many words that these are general instructions isSued for the quidance of officers holding SCM for passing a sentence and that nothing contained in the said Regulation would be Construed as limiting the discretion of the Court to pass any legal serntence, even if there is good reason for doing so. Therefore, aiting the table of punishmnents listed under the Schedule appended to Regulation 448 to urge that for absence without leave or for overstaying leave, the normal punishment being rigorous imprisonment for three years or less to be undergone in military custody pDunishment of dismissal from serice could not have been inflicted on the appellant by the SCM, is unacceptable. Sufficient discretion vests in the SCM to inflict a higher punishment in the given facts and circumstances of a case. Same is the position under Sections 72 and 73 of the Act. Both the sections leave it to the discretion of the Court Martial to award a particular punishment, depending on the nature and degree of the offence. There is no merit in the submission made by learned counsel for the appellant that the said provisions are not applicable to a SCM.

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17. For the aforesaid reasons, we do not find any nfirmity in the impugned judgment passed by the AFT. The appelant had been taking too many liberties during his service and despite several punishments awarded to him earlier, ranging from imposition of fine to rigorous imprisonment, he did not mend his ways. This was his sixth infration for the very same offence. Therefore, he did not deserve any leniency by inflition of a punishment lesser than that which has been awarded to him.

18. Accordingly, the present appeal is dismissed as meritless, while upholding the impugned judgment. The parties are left to bear their own costs. Further, on the issue of dealing with habitual offenders, Hon'ble Supreme Court in its judgment dated 02.09.2019 in Civil Appeal No 1857/2018 the case of Sep Satgur Singh Vs UOT, held as under: "8. 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 lighty and abstain from duty at his wil. Since the absence of duty was on several occasions for which he was imposed punishment of imprisonment, therefore, the order of discharge canot be said to be unjustified. The Commanding Officer has recorded that the appellant is a habitual offender. Such fact is supported by absence of the appellant from duty on seven occasions. In view thereof, we do not find any error in the order of discharge of the appellant. Appeal is dismissed. "

10. In the present case, it is evident that the Applicant was a perpetual offender and a very indisciplined soldier. The Applicant had been awarded five red ink punishments for the offences under Sections 39 (a) and 39 (b). The Applicant was also awarded punishment of 7 days pay fine on 04.04.1985 OA No 600/2023 EX Rfn (Ck) Nakhat Sngh Vs UOI & Ors under Section 44 of Army Act, 1950, ie., False answer on enrolment. It cannot be ignored that within a short period of 11 years of service, which includes 387 days of Non Qualifying Service, the Applicant was awarded five red ink entry punishments and one black ink entry punishment which proves his utter disregard for military service and discipline. He was given ample opportunities to improve himself but he did not mend his ways and repeated the offences time and again. Such an indiscipline is detrimental to the morale of the Armed Forces Personnel and his further retention in service would have set a bad precedent and would also have a cascading effects on other fellow soldiers in the unit and the Armed Forces as a whole. Therefore, we are of the considered view that the Applicant was validly discharged from Service on the orders of the Competent Authority and we find no illegality or infirmity in discharging him from service as an undesirable soldier.

11. Needless to emphasise that the Applicant had voluntarily joined the Army to serve the Nation, but contrary to the Oath administered to him, he clearly belied the trust reposed in him to remain disciplined while discharging his military duties,This Tribunal is fully cognizant of the fact that the object of appropriate punishment to military personnel is not merely to inflict punishment, but also to ensure that undue leniency does not set a bad precedent for others to emulate and jeopardise the overall discipline and operational well-being of Army, as mandated by the Constitution of India. Moreover, it cannot be ignored that the discipline is the foundation of the Armed Forces which cannot be compromised at any cost to maintain the operational efficiency mandated by the Constitution of India. Therefore, in the light of principles laid down by Hon'ble Supreme Court in the cases of Ex Sep Madan Prasad (Supra) and Sep Satgur Singh (Supra), the Applicant cannot be reinstated in service and his discharge from service cannot be said to be unjustified. 12, The judgments cited by the Applicant are quite distinct from the facts of this case. In the cases of Vijay Shankar Mishra and Lalta Prasad Singh (Supra), the Applicants were to nearing completion of pensionable service of 15 years whereas in the present case, the Applicant had rendered only 11 years and five days of service (including 387 days of Non Qualifying Service) OA No 600/2023 Ex Rín (Ck) Nakhat Singh Vs UOI & Ors and, hence, the same yardstick cannot be applied to the instant case. In this case, the Applicant had repeated offences time and again despite ample opportunities having been afforded to improve his conduct. Therefore, a stricter view has to be taken lest it leads to further indiscipline amongst the Army personnel. Mere rendering of eleven years of service does not entitle a person for grant of Service Pension.

13. Moreover, the OA has been filed after an inordinate and inexplicable delay of more than 23 years. Therefore, this case is squarely covered by the judgment of the Hon'ble Supreme Court in the case of C. Jacob Vs. Director of Geology and Mining & Anr, (2008) 10 SCC 115, which held that a stale claim cannot be permitted to be reviewed. Persons who slept over his right is not entitled for any indulgence. Hon'ble Allahabad High Cout, in the case of Inderpal Singh Vs UOI & Ors in Civil Writ Petition 8524/2000 decided on 04.08.2004, held that the petitioner who himself was not interested in pursuing the matter and kept silent for 11 years, hence delay cannot be condoned.

14. In-fine, we are of the considered view that the OA is devoid of merit on all counts and, hence, is dismissed. Pending Miscellaneous Application(s), if any, also stand disposed off.

15. No order on costs. (SANJIV MITTAL) MEMBER (A) Ssy/ (GOVERDHAN BARDHAR) MEMBER (J) OA No 600/2023 Ex RM (Ck) Nakhat Singh Vs UOI & Ors