Exoneration in a Summary Court Martial does not prevent initiation of proceedings for discharge. Lack of requisite educational qualifications justifies discharge under Rule 13 (3) Table III (v) of the Army Rules.

JUDGMENT

L. NAGESWARA RAO, J.

Leave to Appeal is granted.

1. These Appeals arise from orders dated 05.01.2016, 21.03.2016 and 19.05.2016 passed by the Armed Forces Tribunal, Lucknow Bench, dismissing the Transfer Application filed by the Appellant.

2. The Appellant was enrolled in the Army on 26.04.1991. At the time of his appointment he produced his matriculation certificate issued by the Madhyamik Shiksha Mandal, Gwalior, Madhya Pradesh. On verification it was found that the certificate produced by him was not genuine. A charge-sheet was issued under Section 44 of the Army Act, 1950 (for short, ‘the Act’) and a preliminary inquiry was conducted against the Appellant. During the preliminary inquiry, the Appellant admitted that he did not have any proof to show that he had passed the matriculation examination in 1988.

3. The Appellant was tried by the Summary Court Martial and was found guilty under Section 44 of the Act. The Appellant was dismissed from service and sentenced to undergo rigorous imprisonment for three months in a civil jail.

4. Thereafter, the Reviewing Authority set aside the order of termination and the sentence imposed on the Appellant and recommended that the Appellant may be reinstated and the proceedings for discharge can be taken.

5. The Appellant was reinstated on 27.11.1992 and a show cause notice was issued to him on 27.05.1993 seeking an explanation as to why he should not be discharged from service. There was no response from the Appellant to the show cause notice. The Appellant was discharged from service on 10.07.1993. He filed a Writ Petition in the High Court challenging the order of discharge which was transferred to the Armed Forces Tribunal, Lucknow Bench. The Tribunal dismissed the Transfer Application holding that no ground was made out by the Appellant for setting aside the order of discharge. Dissatisfied with the order of the Armed Forces Tribunal the Appellant has approached this Court.

6. The learned counsel for the Appellant submitted that the order of discharge in exercise of the power under Rule 13 (3) Table III (v) is without jurisdiction. He argued that the Appellant cannot be dismissed in exercise of power under Section 20 of the Act after he was exonerated in the Summary Court Martial. He further urged that the order of discharge is vitiated as it amounts to double jeopardy. He relied upon a judgment of this Court in Union of India and Anr. v. Pursushottam,(2015) 3 SCC 779.

7. Learned Senior Counsel appearing for the Union of India justified the order of discharge by submitting that exoneration in a Summary Court Martial is not a bar for initiation of proceedings for discharge. He also submitted that the subject matter of the charge-sheet which led to the Summary Court Martial is completely different from the allegations made against the Appellant for his discharge from service. He stated that the order of discharge, essentially, was passed under item 3 Table III, annexed to Rule 13 of the Army Rules, 1954 which was well within the jurisdiction of the authority who has passed the order of discharge.

8. It is relevant to reproduce Section 44 of the Act which is as follows:

“44. False answers on enrolment. Any person having become subject to this Act who is discovered to have made at the time of enrolment a wilfully false answer to any question set forth in the prescribed form of enrolment which has been put to him by the enrolling officer before whom he appears for the purpose of being enrolled shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.”

9. As stated above, the initiation of a Summary Court Martial was for an offence under Section 44 of the Army Act. He was finally exonerated by the reviewing authority but discharged from service in exercise of power conferred under Rule 13 of the Army Rules.

10. The first submission made by the learned counsel for the Appellant that n