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2010 DIGILAW 95 (GAU)

Lance Naik, Dalbir Singh v. Union of India

2010-02-09

P.K.MUSAHARY

body2010
JUDGMENT P.K. Musahary, J. 1. Heard Mr. H.A. Sarkar, learned Counsel for the petitioner. Also heard Mr. C. Barua, learned Asstt. S.G.I. appearing for the respondents. 2. The relevant facts for the purpose of disposal of this petition are that the petitioner was serving in the JAT Regiment Station at North Lakhimpur in the State of Assam and he was transferred in the month of December, 2002 to the JAT Regiment, C/o. 99 APO. While serving in the 4th Battalion, the regiment authorities passed the impugned order on 15.10.2003 discharging the petitioner locally from Military service. Being aggrieved by the said order the petitioner decided to challenge the said action of the respondents in Court of law. Since the Army Headquarters are in New Delhi, the petitioner approached the Delhi High Court by filing a Writ petition on 5.11.2003 which was registered as WP(C) No. 7160/2003. A contempt petition was also filed in the said Court being Contempt Case (C) No. 508/2004. Both the Civil Writ Petition and the Contempt petition came up for hearing on 25.1.2006 and the Court allowed the petitioner's counsel to withdraw both the petitioners with liberty to assail the impugned order in appropriate Court inasmuch as the Delhi High Court has no territorial jurisdiction to decide the matter. Accordingly the petitioner has filed this petition before this Court challenging the said discharge order dated 15.10.2003. 3. Mr. Sarkar, learned Counsel for the petitioner submits that although there is provision for discharge on compassionate ground, the petitioner never filed any application for such discharge from service on compassionate ground. Such application was filed by some vested interest without the knowledge of the petitioner and as such the consequential impugned order dated 15.10.2003 is not acceptable and sustainable in the eye of law and the same is liable to be quashed. It is also submitted by Mr. Sarkar, learned Counsel for the petitioner that even if it is accepted or admitted that the application was filed by the petitioner on 15.10.2003, a question would arise as to how the application was recommended by the concerned authority on 10.10.2003 to the higher authority for acceptance. In this regard he has the drawn attention of this Court to communication dated 10.10.2003 (Annexure-EI) whereby the concerned officer requested the Records JAT for local discharge of the petitioner on compassionate ground due to domestic problem. From this communication, according to Mr. In this regard he has the drawn attention of this Court to communication dated 10.10.2003 (Annexure-EI) whereby the concerned officer requested the Records JAT for local discharge of the petitioner on compassionate ground due to domestic problem. From this communication, according to Mr. Sarkar, learned Counsel for the petitioner, conclusion can be made that the application dated 12.10.2005 is false and fictitious one. Mr. Sarkar, further submits that as per the guidelines contained in communication No. 0570/15/Rel/RA dated 8.12.1995 (Annexure-1) the application seeking premature discharge on compassionate ground should invariably be got verified from Zila Sainik Board/concerned Civil Authorities and the said verification report in original should be forwarded along with application of the individual. The respondent authorities have not followed this procedure before issuing the impugned discharge order and as such the impugned discharge order is liable to be set aside. 4. Mr. Barua, learned ASGI asserts that the petitioner, in fact, submitted application for discharging him on compassionate ground on 1.10.2003 and on the basis of the said application the impugned discharge order was issued on 15.10.2003. Thereafter, the petitioner was paid the Assam Force Personnel Provident Fund cumulated to the petitioner and the petitioner accepted the said amount without any objection. It is further submitted that the respondent authorities were examining his claim for pension as per the existing provisions regarding allegation of failure to verify the application, Mr. Barua, learned ASGI also submits that the statements made by the petitioner is incorrect since the letter dated 8.12.1995 aforesaid, pertains to premature discharge by force and not local discharge on compassionate ground of undesirable person. The petitioner was locally discharged as per the existing procedure on his application made to that effect. Having gone through the petition and the materials placed, I find that the petitioner nowhere made any statement to the effect that his application for premature discharge was not verified by the Zila Sainik Board or concerned authorities. What is stated in para 23 of the writ petition is that the respondent authorities failed to follow the mandatory provision before passing the impugned order dated 15.10.2003. 5. I have perused the circular/guidelines dated 9.8.1991 and 26.2.2000 (Annexures-3 and 4 to the counter-affidavit) containing the instructions for discharge of undesirable JCOs/OR at own request on compassionate ground. There is no provision for verification of the application. 5. I have perused the circular/guidelines dated 9.8.1991 and 26.2.2000 (Annexures-3 and 4 to the counter-affidavit) containing the instructions for discharge of undesirable JCOs/OR at own request on compassionate ground. There is no provision for verification of the application. I have also gone through the extract of the Interview Registrar (Annexures-7 and 8) to the counter-affidavit wherein it is recorded that the petitioner was given personal interview and he was specifically asked whether he wanted to go on premature discharge. He replied that he wanted to go on discharge on compassionate ground. The petitioner has not filed any rejoinder controverting the stand taken by the respondent authorities although this counter-affidavit was filed by the respondent as far back as on 9.8.2007. Since the aforesaid stand of the respondent authorities are not controverted or denied by filing any affidavit, it can be accepted that the petitioner voluntarily accepted premature discharge on the basis of his application made earlier. It has not also been contradicted that the amount so far released by the respondent authorities have not been paid to him or he refused to accept the said amount. 6. In view of the aforesaid position, this Court has to come to conclusion that the petitioner filed his application on 1.10.2003 for premature discharge from service to look after his family affairs and the same was accepted by the authorities concerned after giving him due opportunities including personal hearing. I find no merit in this case and accordingly this petition would stand dismiss. It is accordingly dismissed. No order as to costs. 7. It is submitted by the learned Counsel that the petitioner is entitled to pensionary benefits and the same has not been given to him. The authorities concerned shall examine his claim for pension as per the provision of the relevant Rules/circular etc. and if it is found that the petitioner is entitled, the same be paid to him without any further delay. Petition dismissed.