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1997 DIGILAW 45 (RAJ)

Union of India v. Tulsi Das

1997-01-08

BHAGABATI PRASAD BANERJEE, M.G.MUKHERJI

body1997
Honble MUKHERJI, C.J.–This special appeal is preferred by the Union of India impugning a judgment and order dated 3rd November, 1995 passed by a learned Single Judge of our Court in S.B. Civil Writ Petition No. 4965/90. (2). The respondent-writ petitioner Tulsi Das was appointed as Safaiwala in Class IV Non-Combatent Enrolled category and was posted at No. 5 F.B.S.U., Air Force C/o 56 A.P.O. Even though he was initially appointed for a term of 15 years which was to expire in February, 1988, he was granted an extension to qualify for pension so that he could serve for a total period of 20 years. While in service he was once awarded minor punishment of 14 days confinement to camp on 14.12.1974. It is averred by the writ petitioner-respondent that he fell ill and was under mental depression and he had to face treatment with the Assistant Surgeon, Civil Hospital, Barmer and, thereafter, he was recommended absolute rest due to mental imbalance for a period of one month with effect from 7.5.1988. Even though he was declared fit to join duty on 6.6.1988 and the period covered by his mental illness was duly certified to by the Assistant Surgeon, Civil Hospital at Barmer, he reported for duty on 29.6.1988 and was placed before the Commanding Officer, respondent no. 4 for trial. His prayer to regularize him for this period against his leave which was due to him was not heeded to and he was treated as absent without leave and was awarded with a minor punishment of seven days detention under section 82 of the Air Force Act, 1950. The writ petitioner-respondents conten- tion was that he had annual leave to his credit and the period of sickness could have been regularized under the provisions of the Defence Services Leave Rules. It was contended by the writ petitioner-respondent that annual leave of 60 days in a calendar year was due, apart from the casual leave of 30 days in a calendar year and he could also avail of sick leave on the recom mendation of the competent Medical Authority and there was no maximum ceiling limit in this regard. Moreover, he was entitled to 30 days compassionate leave against his entitlement of the next years annual leave which could be combined with the current years annual leave. Moreover, he was entitled to 30 days compassionate leave against his entitlement of the next years annual leave which could be combined with the current years annual leave. Even as on that date, 30 days annual leave stood to his credit against the year 1988. (3). It was more or less an admitted fact that the writ petitioner- respondent could not attend duty from 6.3.1989 to 9.4.1989 on account of his mental depression. A Court of Enquiry was directed to inquire into this unauthorised absence which was so ordered under section 107 of the Air Force Act. It is the writ petitioner-respondents contention that neither the statement of the writ petitioner-respondent was recorded nor the Court of Enquiry was ever completed and instead the writ petitioner- respondent was marched for trial before the Group Captain, who was the Station Commander of No. 5 FBSU Air Force. He was ultimately awarded with minor punishment of 20 days detention under section 82 of the Air Force Act. It was the further contention of the writ petitioner-respondent that the Group Captain, who was the Station Commander of No. 5 FBSU Air Force punished him twice within a period of less than one year and directed him to render personal service as Safaiwala in the residence of the respondent no. 4 Sri B.S. Ghuman, Group Cap- tain, who was also the Station Commander. His reluctance to do such work irritated the said respondent-Group Captain and being biased, he seized hold of the opportunity when the writ petitioner- respondent receiving a message on 29.5.1989 went to meet his brother and his brothers wife, both of whom were in critical condition in the hospital due to serious accidental burn injuries. The writ petitioner-respon- dent accordingly did not come for duty on 29.5.1989 and the respondent no. 4 Group Captain and Station Commander got two I.A.F. Police N.C.Os. detailed on that date to visit the hospital in order to verify the statement of the writ petitioner-respondent since he approached for sanction of leave. He was brought before the Adjutant and was assured that he was to be granted leave. His brothers wife died on 31.5.1989 and he applied for leave with effect from 1st June, 1989 and left his application for leave with his Section Incharge. His application was kept with the Group Captain. He was brought before the Adjutant and was assured that he was to be granted leave. His brothers wife died on 31.5.1989 and he applied for leave with effect from 1st June, 1989 and left his application for leave with his Section Incharge. His application was kept with the Group Captain. He, however, left for the hospital and went to his village after leaving his application for leave with his Section Incharge. His brother also died on 5.6.1989. In support of his contention he relied upon the Death Certificates of both his brother and his brothers wife. He was still declared absent without leave for the period 1.6.1989 to 12.6.1989. His leave applications were not granted for the reasons best known to the Group Captain. When he returned to the Unit after dischanging his social obligations, he was served with a warning letter by the Group Captain purportedly signed on May 30/31, 1989 and he was recommended for discharge effectively un- der Rule 15(2)(K) of the Rules of 1969. He was again awarded with minor punishment of four days detention on 15.6.1989 under section 82 of the Air Force Act so that he could ultimately be recommended for discharge by the Group Captain. He explained his position before the Adjutant stating that he was called by him on 29.6.1989 after the Police N.O.Cs. had verified the facts about the accidental burn injuries of his brother and his brothers wife and he was assured for grant of leave and, as such, he left for his village home leaving the application for leave with the Section Incharge. Despite this, he was marched before the respondent no. 4 Group Captain on 15.6.1989, who did not afford him any opportunity of being heard and did not also provide him any effective opportunity to produce the Medical Certifica- tes, which act was contrary to the provisions of Rule 24 of the Air Force Rules, 1969 and he was ultimately awarded with four days detention in clear breach of the principles of natural justice. Ultimately, the minor punishment being Fourth Entry depressed him so much that his mental condition got further aggravated and he reported sick at the Air Force Station Sick Quarters, Utarlai on 19th June , 1989, where he was checked up by the Medical Officer and ultimately he was transferred to Military Hospital, Jodhpur, where he was hospitalised from 20.6.1989 onwards for treatment for mental depression. Flight Lt. (Dr.) Kunte, Medical Officer, Station Sick Quarters, Air Force, Utarlai recommended his admission with the Military Hospital and also recommended him light duty for the next 14 days. He was ultima- tely served with a show cause notice vide HQ. SWAC-IAF No.SWAC/C.3401/18/11/Pl dated 4.8.1989 as to why he should not be discharged from service under Rule 15(2)(K) of the Rules for having incurred four Red Ink Entries in his documents. Reply to the show cause notice was required to be submitted to the Group Captain within a period of ten days. He submitted his reply to the show cause notice stating therein that he had no intention to be a regular absentee without leave, but the circumstances compelled him under the prevailing depressed mental and tragic conditions. He further contended that all these punishments were awarded to him within the last one year and prior to that he had absolutely a clean record for nearly 14 years or so. He explained that due to the circumstances beyond his control and due to long period of his illness and the un-natural death of his brother and his brothers wife the situation compelled him to remain on leave and of ultimately aggravated his mental condition so that he had to once against remain in Military Hospital, Jodhpur from 20th June, 1989 to 15th July, 1989, where he continued further treatment under the Medical Officer Incharge, Sick Quarter 5-FBSU. (4). Ultimately, the AOC-IN-C, HQ. SWAC IAG, Jodhpur vide order dated 13.10.1989 issued a discharge order to the writ petitioner- respondent under section 15(2)(K) of the Rules and he was informed about it on or before October 20/21, 1989. The copy of the said order was not given to him so as to deprive him of the right of appeal or even approach any Court of justice. The writ petitioner-respon- dent contends that no particular date for discharge was mentioned in the said order. He, thereafter, approached the respondent no. 3-the AOC-IN-C, HQ. The copy of the said order was not given to him so as to deprive him of the right of appeal or even approach any Court of justice. The writ petitioner-respon- dent contends that no particular date for discharge was mentioned in the said order. He, thereafter, approached the respondent no. 3-the AOC-IN-C, HQ. SWAC IAF, Jodhpur, but the said Officer did not meet him and instead passed on a message through his servant NCE Sewa Ram, Safaiwala with instructions to go and see the Staff Officer, Wing Commander Jai Sanghani and narrate the grievances to him. He approached the Staff Officer, who told him that nothing could be done in his case and orders were complete and he can approach the Chief of the Air Staff, Indian Air Force. The writ petitioner-respondent being an illiterate person and being financially poor and being under constant mental depression, could not approach the Chief of the Air Staff and instead returned back to the Unit. He learnt about his discharge from service when he was not allowed to go inside the Air Force premises on 5.11.1989 and he was informed that he having been discharged from service and as per the instructions of the Group Captain he could not be allowed to go inside the Air Force premises. (5). The writ petitioner-respondent sent a petition for review of the order of discharge from service passed under Rule 15(2)(K) vide his application dated 31.5.1990 addressed to the Army Authorities and ultimately he came to Writ Court in S.B. Civil Writ Petition No. 4965/90 praying inter-alia for quashing of the impugned order dated 13.10.1989 as also quashing of entry of punishment dated 15.6.1989 (Ex. 7 to the Writ application). He also prayed for an appropriate writ, order or direction upon the respondents to reinstate him in service and to grant him all consequential benefits. (6). The Air Force Authorities duly entered appearance and filed a reply denying material averments in the writ application, to which the writ petitioner also filed a rejoinder. It was contended by the Air Force Authorities that the impugned order was in accordance with law and the services of the Writ petitioner were terminated on the ground that he was a habitual offender and his case was covered by the Habitual Offenders Scheme (Annexures R/2 and R/3 to the reply). It was contended by the Air Force Authorities that the impugned order was in accordance with law and the services of the Writ petitioner were terminated on the ground that he was a habitual offender and his case was covered by the Habitual Offenders Scheme (Annexures R/2 and R/3 to the reply). It was pointed out before the learned Single Judge that the said particular Scheme of terminating the services of the habitual offender was ultimately approved by the Honble Supreme Court. (7). Be that as it may, the learned Single Judge without entering into an adjudication of the real controversy which was set for trial quashed the impugned order dated 13.10.1989 having found further that there was no question of reinstatement of the writ petitioner in service because he had completed 20 years on 28.2.1993 thereby failing to appreciate that the termination was from 5.11.1989. His Lordship further held that the writ petitioner would not be entitled to any other benefit of service including back wages, but he was entitled to pensionary benefits treating 20 years qualifying service as entitling him for pension. We do not think that the real controversy has been at all gone into and matters were over-simplified as anything. (8). In Life Insurance Corporation of India vs. Mrs. Asha Ramchandra Ambekar and anr. (1), it was held by the Supreme Court that the High Courts and/or the Administrative Tribunals cannot confer benediction impelled by sympathetic con- sideration. Yielding to instinct will tend to ignore the cold logic of law. The Court is to administer law as it finds it, however, inconvenient it may be. The Court should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, it should never be done. In the facts of the said reported decision, the High Court directed the Life Insurance Corporation to appoint the respondent no. 2 on compassionate ground by passing the Instructions and it was held by the Supreme Court that the appellant Life Insurance Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions, which could not be put aside and the High Court cannot direct a compassionate appointment to be ordered. 2 on compassionate ground by passing the Instructions and it was held by the Supreme Court that the appellant Life Insurance Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions, which could not be put aside and the High Court cannot direct a compassionate appointment to be ordered. It was well settled in law that no mandamus would be issued directing to do a thing forbidden by law or impermissible by law. It is true that there may be pitiable situations but on that score, the statutory provisions cannot be put aside. (9). We would accordingly set aside the impugned judgment and order as passed by the learned Single Judge and direct a re-hearing of the writ application in accordance with law. We expect that the hearing should be so done within a period of three months from this date. (10). The special appeal stands disposed of accordingly.