Ravindra Mahadu Patil vs Major Daa And Qmg For Commander And ...
2004 Latest Caselaw 1292 Bom

JUDGMENT

S. Radhakrishnan, J.

1. The Petitioner, Ravindra Mahadu Patil, aged 28 years, is challenging by this Petition, an order dated 25th September, 1998 passed by Respondent No. 1, whereby the Petitioner was discharged from Territorial Army. The Petitioner was recruited to the Post of Javan/Shipai in March, 1992 and was drawing a salary of Rs. 3000/- per month. He joined at Devlali initially for a training period of three months and thereafter he had completed about four years of his service and five camps in Territorial Army. The Petitioner claims to have a good service record also. During his tenure, 1995-96, he also completed MT Cadre training for a period of five months and passed in first class and stood first. According to the Petitioner services like that of Petitioner are required during various camps. After the completion of that period every camp unit comes back to the Head Quarters at Devlali and thereafter persons like the present Petitioner are sent on leave to their houses and during this period they are not entitled to any salary but they are allowed to join civil services subject to the condition of resuming camp as and when called for.

2. In August 1997 the Petitioner's unit returned to Devlali from the Camp and the Petitioner was sent on leave for 20 days on October, 1997. As per the orders he was to resume duty on 23rd October, 1997. During the leave period he was in search of a civil employment and therefore he applied for an extension of leave upto 1st November, 1997 by registered post. This application was turned down and a telegram was sent by his unit calling him to resume duty immediately. Since the Petitioner was out of town for civil employment purpose as such he could receive the telegram only on 9th November, 1997. On 10th November itself he reached the Head Quarters for resuming duties. But he was informed that his unit had gone to the State of Rajasthan. Though the Petitioner requested them to make some arrangement to send him to the State of Rajasthan or to allow him to reach there at his own cost, the concerned office bearers informed him that there are no orders for sending him to the State of Rajasthan and he was asked to return back to his house. The Petitioner was further informed that on the arrival of his unit he can approach his Officers for resuming duties.

3. On 18th December, 1997 the said Unit came back and the Petitioner reported to the Unit. When he met Second-in-Command Lt. Col. D.S. Manral, without hearing anything, the Officer informed him that he stands discharged and asked him "to get lost from the office". Though the Petitioner tried to handover to him a letter given by the District Sainik Officer, the concerned officer didn't accept it. The Petitioner also pleaded with the Officer to allow him to complete the territorial army services and informed that only two camps were left out of seven camps and that he will lose the opportunity permanently for his lifetime if he is discharged in this manner. But the Petitioner says that he was humiliated and bluntly refused by the said Officer. The Petitioner tried to explain the entire episode through the representation to Respondents 2, 3 and 4 vide his letter dated 11th February, 1998 annexed as (Exhibit A) to the Petition. But there was no reply from the Respondents Later Petitioner received a letter from Lt. Gen. Adjutant for Commanding Officer for a personal interview vide his letter dated 19th February, 1998 annexed as (Exhibit D) to the Petition. Though the Petitioner appeared before the said officer on 24th February, 1998 at 9 am. As per the said letter, he was informed that the commanding officer had not turned up and he was asked to come again on 26th February, 1998. On 26th February the Petitioner met the Commanding Officer. But the Commanding Officer told the Petitioner that since he has already been discharged he cannot do anything in the matter. The Petitioner again made a representation to Respondent No. 4 on 8th August 1998 agitating that nobody is taking into account the genuine cause for delay in resuming duties. The Respondent 1 vide his letter dated 25th September, 1998 informed the Petitioner that his case has been considered and examined by the Head Quarters and he stands discharged from the services "as untraceable" under the provisions of Territorial Army Rule 14(b)(iii) r/w Territorial Army Rule 15(1A). There was no response from Respondents 2 and 4 when the Petitioner requested them to provide him with the copies of the extract of relevant rules.

4. The Petitioner was also called upon to furnish his bank details and subsequently a money order of Rs. 15000/- was sent to the Petitioner without giving any kind of details about the said payment. The Petitioner refused to accept the same under the impression that his chance for service may get permanently damaged by accepting the same, as in the event, the Petitioner was not allowed to complete two more camps he will not be able to get service anywhere else. The Petitioner had stated that he was facing tremendous difficulties due to the said unemployment.

5. A Division Bench of this Court by their judgment dated 6th March 1999 in the above Petition had asked the Respondents to take back the Petitioner in service by condoning the intervening period and to allow him to join the next embodiment. Respondents were also directed to allow the Petitioner to complete the remaining two camps and also to give all benefits of continuous service for completion of the seven camps. When the above judgment was challenged in the Supreme Court by way of a special Leave Petition by the Respondents herein, the Supreme Court had set aside the said judgment and order, on 11th September, 1999, on the ground of lack of reasons and had directed the High Court to dispose of the writ petition afresh, by a reasoned order.

6. The following issues arise in this Petition:-

a. Whether the impugned order dated 25th September 1998 passed by the Respondent No. 1 terminating the service of the Petitioner was illegal, arbitrary, null and void?

b. Whether the Petitioner is entitled to reinstatement in service with full back wages and all consequential benefits?

7. The Petitioner contends that Rule 15 of the Territorial Army Rules gives a table of persons who are competent to discharge an enrolled person. According to the Petitioner his order of discharge was not passed by the officer who was competent to pass such an order. Similarly the contention of the Petitioner is that the said order dated 25th September, 1998 is in violation of Rule 15(1A) since it was obligatory upon the competent authority to issue a show cause notice before discharging an enrolled person, which was admittedly not done by the concerned officer. The said Rule 15(1A)(b) reads as under:-

"(1-A) Where a discharge is authorized under the provisions of Clause (ii) and (iii) of Sub-rule (b) of Rule 14, the competent authority before authorizing the discharge shall, if the circumstances of the case permit, give the enrolled person as opportunity to show cause against the discharge, unless such discharge is at the request of the enrolled person."

Hence the contention is that there has been a clear violation of the principles of natural justice. The learned counsel for the Petitioner contends that the reason assigned in the impugned order of discharge was that the Petitioner was "untraceable", which was factually incorrect in view of the Petitioner's leave application. The said leave application was turned down by the concerned officer and a telegram was sent to the Petitioner. Immediately after receiving the telegram, the Petitioner reported at Devlali. Therefore it cannot be said that the Petitioner was "untraceable". The Respondent No. 1 had invoked Territorial Army Act Rules 1998, Rule 14(b) (iii), wherein one of the grounds of discharge is "services are no longer required". If the services of the Petitioner were no longer required then after embodiment of the Petitioner they could not have given a deadline to the Petitioner to resume duties and subsequently turned down Petitioner's leave application. Therefore the learned counsel for the Petitioner contends that it is very clear that the power of discharge was arbitrarily exercised with the only intention to keep the Petitioner out of services and punish him for no fault of his. The learned counsel for the Petitioner also contends that the Petitioner has been deprived of the V Pay Commission benefits and all such other benefits to which he was otherwise would have been entitled, had he been in service.

8. The learned counsel for the Respondents contends that after completion of annual training camps, part time soldiers are disembodied. During the course of disembodiment, Territorial Army Personnel are not being granted and pay, allowance, leave etc. All the part time Territorial Army Personnel like were disembodied from service with effect from 6th September 1997 with the advice to report to the unit on 23rd October, 1997 for an important army exercise. But an application was received from the Petitioner on 22nd October, 1997 stating his inability to join the Unit on 23rd October 1997 as he had joined security duty in a bank by way of civil service and would join the unit on 30th October, 1997. But the said application was not accepted as the Unit was about to leave and this was communicated to the Petitioner through a telegram. The Petitioner failed to join till 5th November and that he had reported to the unit only on 10th November, 1997. The Petitioner's Unit had moved to Rajasthan on 5th November itself. The learned counsel for the Respondent contended that the Petitioner was discharged from duty under the provisions of Territorial Army Act Rules 14(b)(iii) r/w Territorial Army Act Rule 15(1A).

9. The learned counsel for the Respondents also contended that there is no such mandatory provision in the Rules to give a show cause notice to the Petitioner, before his discharge. According to the learned counsel for the Respondents, the Petitioner was rightly treated as "untraceable".

10. After having heard both the learned counsel for the parties, and on perusal of the facts and records, it is very clear that the Petitioner was ready to join and in fact the Respondents had called upon him to join, hence the contention of the Respondents that as per Rule 14(b)(iii), "Services are no longer required", cannot be sustained at all. Ex-facie the said contention is contrary to the facts on record, and the said contention of Respondents cannot be accepted.

11. Over and above, as per Rule 15(1A), the Petitioner ought to have been given an opportunity to show cause against the proposed "discharge", which was also not done by the Respondents.

12. Even the contention of the Respondents that the Petitioner was "untraceable" is also contrary to the records as the Respondents had called upon the Petitioner to report and the Petitioner had sought to extend the leave by his telegram. Hence the contention that the Petitioner was "untraceable" also cannot be sustained.

13. Under the aforesaid facts and circumstances, the impugned order dated 25th September 1998 passed by Respondent No. 1 is quashed and set aside. Having regard to the facts and circumstances and in the larger interest of justice, we direct the Respondents to take back the Petitioner in service so as to enable him to complete the remaining two camps, by condoning the intervening period, provided the Petitioner is not age barred.

14. In the event the Petitioner is age barred for completing the said two camps, the Respondents shall pay the Petitioner all the dues as if had completed the said two camps, on par with the others who had completed the said two camps in 1998 and 1999, who were similarly situated as that of Petitioner.

15. Rule is accordingly made absolute in the above terms with costs.