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2010 DIGILAW 1789 (PNJ)

Vishal v. Union Of India

2010-05-26

ADARSH KUMAR GOEL, ALOK SINGH

body2010
Judgment Alok Singh, J. 1. By way of present appeal, the appellant is assailing order dated 16.1.2009 passed by learned Single Judge, thereby dismissing CWP No. 730 of 2009, challenging order dated 10.4.2003 (Annexure P-3) discharging the petitioner from service on the ground that he was unlikely to become an efficient soldier. 2. Brief facts of the present case are that petitioner was enrolled in the Punjab Regiment of the Indian Army during the month of August, 2001 and was directed to report to Punjab Regimental Centre at Ramgarh; petitioner reported as per the direction in January, 2002; petitioner completed six months training at the Centre; petitioner came back and started advance training on 13.7.2002, then on 19.8.2002, he suddenly fell ill and was hospitalised and diagnosed with Viral Hepatitis; petitioner remained hospitalised for three months and was down graded to Low Medical Category P-3(T-08) from 8.1.2003 to 12.3.2003; petitioner was directed on 4.3.2003 to report to the Regimental Centre and was again examined by the doctor for medical categorisation; petitioner was again examined on 11.3.2003 and was found fit and recommended to be upgraded to Medical Category SHAPE I. Respondent No. 3 issued show cause notice dated 19.3.2003 to the petitioner as to why he be not discharged from service as he missed training for 234 days; petitioner has submitted his reply to the show cause notice on 29.3.2003. However, he was suddenly ordered to be discharged on 10.4.2003 without apprising him of the reasons of his discharge; Order of discharge dated 10.4.2003 was made under Army Rule 13(3) item IV on medical ground. Petitioner challenged the order of discharge by way of the writ petition, which was dismissed vide impugned order by learned Single Judge. Learned Single Judge has relied upon Annexure P-2 dated 29.3.2003 reply of the petitioner sent to the show cause notice dated 19.3.2003. In reply to the show cause notice, petitioner has not stated anywhere that he was unable to attend the training due to illness, rather petitioner has stated that he is ready to be discharged. 3. We have heard learned counsel for the parties and perused the record. 4. Learned counsel for the appellant fairly admitted that reply dated 29.3.2003 sent by the appellant - petitioner does not contain even a whisper about his illness. 3. We have heard learned counsel for the parties and perused the record. 4. Learned counsel for the appellant fairly admitted that reply dated 29.3.2003 sent by the appellant - petitioner does not contain even a whisper about his illness. In our view, petitioner ought to have taken the plea of illness and since he himself agreed to be discharged, hence now he cannot challenge his discharge on the ground that his absence from the training was due to illness. Not only this, Regulation dated 20.2.1999, photocopy of which was submitted by learned counsel for the appellant - petitioner before us, reads as under : "A recruit has been absent without leave for a period of 30 consecutive days during basic military training period, will not be allowed to rejoin his training again and such recruits shall be discharged after necessary disciplinary action. The absentee for less than 30 consecutive days may be considered for relegation." 5. From the perusal of the Regulation, we are satisfied that if a recruit has been absent for a period of 30 consecutive days during basic military training period, will not be allowed to rejoin his training again and such recruits shall be discharged after necessary disciplinary action. 6. Learned counsel for the appellant has placed reliance on the judgement dated 19.8.2004 passed by a Division Bench of this Court in CWP No. 4451 of 2004 (Raj Singh v. Union of India and others) and has argued that since the appellant was found medically fit and upgraded to SHAPE I by the Medical Board on 11.3.2003, hence his absence cannot be treated to be illegal and he may be allowed to join his basic training. 7. We have gone through the judgement passed by the Division Bench of this Court in Raj Singhs case (supra). We find that in the aforesaid judgement, there is no discussion about the Regulation dated 20.2.1999, photocopy of which is produced before us by learned counsel for the appellant and relevant Regulation has been reproduced by us hereinabove. 8. In view of the above, judgement passed by the Division Bench of this Court in Raj Singhs case (supra) does not lay down any law and is not applicable to the facts of the present case. 9. In view of the above, no interference is called for. Appeal is devoid of merit and hence, is dismissed. Appeal dismissed.