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2014 DIGILAW 619 (GAU)

Dalbir Singh v. Union of India & Ors.

2014-06-11

A.M.SAPRE, UJJAL BHUYAN

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Ujjal Bhuyan, J. -- Heard Mr. R.D.Lal, learned counsel for the appellant and Mr. C.Baruah, learned Central Government Counsel appearing for the respondents. 2. This appeal has been filed against the judgment and order of the learned Single Judge dated 9.2.2010 passed in WP(C) No.2169/2006 filed by the appellant as the writ petitioner whereby challenge made to the order dated 15.10.2003 discharging the appellant locally from military service was rejected. 3. Case of the appellant as projected in the writ petition is that at the relevant point of time he was serving as Lance Naik in the 4th Battalion of the Jat Regiment of the Indian Army. While serving in the 4th Battalion of the Jat Regiment, respondents passed the impugned order dated 15.10.2003 discharging him locally from the army service. Initially, appellant challenged the legality and correctness of the said discharge before the Delhi High Court but since the 4th Battalion of the Jat Regiment was stationed at North Lakhimpur in the State of Assam, the writ petition filed in the Delhi High Court was withdrawn with liberty to approach the appropriate forum. Thereafter the related writ petition was filed. 4. The appellant contended that he had a good record of service in the army and was committed to his duties. However, his Company Commander was not happy with him. As a result, some charges were levelled against him, such as intoxication, moving out of the barrack without prior permission etc. Though a Court of Inquiry was convened but there was no formal trial. On 12.10.2003, appellant was called by the Office Superintendent and on his instruction, an application was written by the appellant seeking pre-mature discharge from the army service for domestic reasons. Thereafter, the impugned order was passed on 15.10.2003 discharging the appellant locally from army service. Such discharge of the appellant was contended to be vitiated by mala fides and in violation of the procedure prescribed. The appellant therefore sought quashing of the discharge dated 15.10.2003 and for his reinstatement in service with consequential benefits. 5. It appears that respondents had filed counter affidavit resisting the contention of the appellant. Appellant had submitted application on 1.10.2003 for discharging him from service on compassionate ground and on the basis of the said application, the impugned discharge order was issued on 15.10.2003. Appellant was locally discharged as per the existing procedure by complying with the necessary procedural requirements. It appears that respondents had filed counter affidavit resisting the contention of the appellant. Appellant had submitted application on 1.10.2003 for discharging him from service on compassionate ground and on the basis of the said application, the impugned discharge order was issued on 15.10.2003. Appellant was locally discharged as per the existing procedure by complying with the necessary procedural requirements. 6. Learned Single Judge on due consideration dismissed the writ petition vide judgment and order dated 9.2.2010. 7. Learned counsel for the appellant contends that submission of the application by the appellant for local discharge was not a voluntary act. It was a result of intimidation and coercion. Appellant was forced by the superiors to write and submit the said application. Therefore, local discharge of the appellant based on such an application would be non est in the eye of law. He also submits that the impugned action of the respondents was arbitrary and without following any fair procedure. 8. Learned Central Government Counsel on the other hand supports the order of the learned Single Judge and submits that no interference is called for. 9. We have heard learned counsel for the parties and also perused the record produced. 10. Before proceeding further, it would be apposite to refer to the relevant portion of the order of he learned Single Judge, which reads as under :- “ 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. I have perused the circular/guidelines dated 9.8.1991 and 26.2.2000 (Annexure-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 Register(Annexure-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. I have also gone through the extract of the Interview Register(Annexure-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. 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 dismissed. It is accordingly dismissed. No order as to costs. It is submitted by the learned counsel that the petitioner is entitled to pensionery 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.” 11. We are in agreement with the views expressed by the learned Single Judge. 12. Chapter III of the Army Rules, 1954 comprising of Rules 11 to 18 deals with dismissal, discharge etc. Rule 13 deals with authorities empowered to authorize discharge. Sub rule (1) provides that each of the authorities specified in column 3 of the Table given, shall be the competent authority to discharge from service persons subject to the Army Act specified in column 1 thereof on the grounds specified in column 2. Under sub-rule(2), any power conferred by this rule on any of the aforesaid authorities shall also be exercisable by any other authority superior to it. Under sub-rule(2), any power conferred by this rule on any of the aforesaid authorities shall also be exercisable by any other authority superior to it. As per sub-rule(3), “commanding officer” means the officer commanding the corps or department to which the person to be discharged belongs except in the case of junior commissioned officers and warrant officers of the Special Medical Section of the Army Medical Corps. Under clause III (iv) of sub-rule(3), in the case of persons enrolled under the Act who have been attested, the competent authority authorized discharge is the “commanding officer” and the ground of discharge is “ at his own request before fulfilling the conditions of his enrolment.” The manner of discharge prescribed is that the commanding officer will exercise the power only when he is satisfied as to the desirability of sanctioning the application and that the strength of the unit will not thereby be unduly reduced. 13. Record of the case indicates that the appellant was locally discharged from service on his own request. Regiment Head Quarter had received a message from the 4th Battalion requesting accord of sanction for local discharge of the appellant. On 4.10.2003, the Jat Regiment sent a message to the 4th Battalion according approval to the local discharge of the appellant following which the appellant was discharged. 14. From the documents placed on record, it is seen that the appellant had submitted an application before the Commanding Officer of the 4th Battalion by his own hand writing in Hindi where the date was given as 1.10.2003. It was stated that his old parents were living with him. His wife was sick and was unable to look after his parents and two minor children . There was also no one to look after his farm land. He stated that because of such problems on the domestic front, he was unable to pursue counter insurgency duty. He therefore prayed for his discharge at the earliest. He was thereafter discharged by movement order dated 15.10.2003 of the Commanding Officer with effect from 16.10.2003. There was also no one to look after his farm land. He stated that because of such problems on the domestic front, he was unable to pursue counter insurgency duty. He therefore prayed for his discharge at the earliest. He was thereafter discharged by movement order dated 15.10.2003 of the Commanding Officer with effect from 16.10.2003. Contention of the learned counsel for the appellant that the appellant was pressurized and forced to submit the application for local discharge cannot be accepted because admittedly the appellant did not take any step either before the army authority or before the civil (police ) authority, if he was aggrieved by any act of coercion in the alleged extraction of his application dated 1.10.2003 for local discharge. No credence therefore can be given to the said contention of the appellant. We also do not find any procedural infirmity in the action of the Regiment authority in locally discharging the appellant from the military service. The record indicates that the authority had issued the discharge certificate with recommendation for civil employment. 15. In view of the discussions made above, we do not find any merit in the writ appeal which is accordingly dismissed. No cost.