Follow Procedure for Termination

Captain Virendra Kumar vs. Union of Indias

Filed Under: Rules 15 & 15-A of the Army Rules, 1964 Paragraph 15 of the Army Instruction 9/S/62
Appellant: Captain Virendra Kumar
Respondent: Union of India
Citation: (1981) 1 SCC 485
Court: In the Supreme Court of India
Judges: VR Krishna Iyer and O Chinnappa Reddy

This is an appeal filed by Virendra Kumar against the order of his termination from service, on grounds of disability acquired during his service.

Facts

Captain Virendra was an Emergency Commissioned Officer in the Army. While he was fighting in the front line, he sustained a spinal injury due to which he had to be released by the Chief of Army with an offer of a pension of Rs. 51.50 per month.

Virendra filed a petition against this order in the High Court but it was dismissed by the High Court. He then filed this appeal.

Observations of the Court

The Court analyzed the arguments made by Virendra along side the relevant rules and provisions of Army Act, in light of which the Court concluded that Virendra’s case was equivalent to the case of a permanent officer of the regular Army. Rules 15 and 15-A of the Army rules deal with the termination of service by the Central Government on grounds other than misconduct. Accordingly, the Court stated that Rules 15 and 15-A of the Army Rules, 1964 were applicable to Capt. Virendra even though he was an Emergency Commissioned Officer.

The Court cited these two rules and held that these rules lay down the procedural basis for termination of service of Regular Commissioned Officers on account of physical disability or medical unfitness. It was further stated that since these rules also apply to Emergency Commissioned Officers they should have been applied in this case.

In accordance with these rules the Court held that the Chief of Army Staff must himself be satisfied that the officer is unfit to be retained in the service due to medical disability before any order of termination of service is passed. It was further pointed out that there were sedentary posts in the Army and the Chief should take this into account when considering Virendra’s case.

Once this was done, the Chief would have to inform him about the reasons for release from service. The Court further stated that once the Chief of Army Staff concluded that Virendra’s physical disability justified the termination of his service, he was to be given another opportunity to make an explanatory representation to the Central Government.

The Court contended that an injury during service did not automatically end the service of the Officer and the Army must adhere to the correct procedures. As a result of the invalidation of the termination of service, the Court held that Virendra should be taken back into service. Furthermore, the salary due to him from the time of termination of his services till the date of the decision would have to be paid to him. The Court directed that this had to be done within a period of 3 months.

The Court also stated that the fact that the order of release or termination was invalid should not be taken to mean that Virendra was a permanent or regular commissioned officer. According to the Court his services were still liable to be terminated provided the correct procedure was followed. It was stated that The Chief of Army Staff may either allot him a sedentary position or may even deal with him in accordance of the provisions of rules 15 and 15 (A).

Subject to the above directions, the Court allowed the appeal and dismissed the order passed by the High Court. The Union of India was also directed to pay costs quantified at Rs. 5000 to Capt. Virendra Kumar.