Delhi High Court

Lokesh Kumar vs Union Of India And Anr. on 3 November, 2008

Author: Sanjay Kishan Kaul

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                            Date of decision:3.11.2008


+      WPC No. 12900/2004


       LOKESH KUMAR                          ..........Petitioner
                             Through: Mr. Y. D. Nagar, Advocate

                               Versus

       UNION OF INDIA & ANR.              .........Respondents

Through: Ms. Shilpa Singh, Advocate

CORAM:

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE MOOL CHAND GARG

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? No

3. Whether the judgment should be No reported in the Digest?

SANJAY KISHAN KAUL,J (ORAL).

1. The petitioner was enrolled in the Indian Navy as a Direct

Entry Sailor in the trade of (DE-MET) at INS, Delhi at New Delhi

and was, thereafter, directed to report at INS, Chilka in the state

of Orrisa. He joined the training ship of the Indian Navy, INS

Ranjit at Vishakhapatnam on 21.2.2000 and after completing the

said training he was retained for further training of his trade

between 2.3.2000 to 5.5.2000. However, while undertaking the

aforesaid training he was declared failed in three subjects. He

then availed leave w.e.f. 28.7.2000 to 28.8.2000. Thereafter he

was again retained for training but again could not succeed and

was declared failed in two subjects namely Photo and ATC again

which he could not clear even earlier. It was in these

circumstances the School of Naval Airmen CHILKA, forwarded

recommendation for discharge of the petitioner to the Chief Staff

Officer Training by his letter dated 28.2.2001 and the

Headquarters of the Naval Command, Kochi accorded their

approval for the discharge of the petitioner by orders dated

12.3.2001 which the petitioner states was not in accordance with

the Regulations 276 & 278 of the Navy Regulations. Thereafter

the petitioner was discharged from service. His representation

dated 15.5.2001 and a reminder dated 20.2.2004 is stated to

have not been disposed of.

2. The petitioner has filed the present writ petition seeking

directions to the respondents to quash and set aside the

impugned order of discharge being irregular/illegal and having

been issued without following the process as prescribed and in

accordance with the Navy Regulations 276 & 278 and other

policy letters issued from time to time. He has also sought a writ

of mandamus directing the respondent to reinstate the petitioner

with effect from the date of discharge i.e. 31.3.2001 with all the

consequential benefits.

3. According to the respondents the petitioner failed in the

final examination in the Basic Training at INS, Chilka. It has been

submitted that the petitioner had passed his basic training course

only after re-examination. It is further submitted that after the

completion of the training at INS Chilka he reported on 28th

February 2000 for his basic Air Course No. 40:387, at SFNA.

There in the first training cycle during the period from 28

February to 13th May 2002 he obtained 32/100 marks in General

Airmanship, 12/50 marks in Fire Fighting, 03/25 marks in Safety

Equipment, 02/25 in Photo and 10/25 in Meteorology. The

petitioner thus failed in five subjects. He was re-batched to basic

Air Course 40:439 (04 September 2000 to 18 Nov 2000) after

giving the statutory suitable warning and opportunity to improve

as per regulation No. 278(2) of Regulation for Navy Part III.

4. It is submitted that in the second attempt the petitioner

obtained 20/50 marks in ATC, 10/25 marks in Photo and 04/50 in

Education. The petitioner having failed in 03 subjects in second

attempt with the re-batched basic air course, he was relegated.

He was also again given statutory warning to show improvement

in his academic performance as per the regulations on the

subject. Thus the petitioner was given adequate opportunity to

improve himself and pass Basic Air Course but he failed to do so.

5. As per respondents the petitioner was to be re-batched for

further attempt to pass the required basic air course, he showed

absolute disregard for service discipline. He was found involved

in a case of theft and the petition unauthorisedly left the training

establishment at 1230 hours on 12th December 2000 without any

information and without any permission. He was marked absent

and he did not join his training. His father was informed

telegraphically with request to direct his son to report for duty

forthwith, failing which a warrant for arrest would be issued. He

joined back on 21 Dec. 2000 after absenting himself

unauthorisedly. Thereafter, he was tried summarily by the

Commanding Officer under Section 379 of the Indian Penal Code

read with Section 77(2) of the Navy Act, 1957 and Section 51 of

the Navy Act, 1951, the petitioner had also admitted his guilty of

committing theft and he was awarded the following punishment

vide INS Garuda Warrant No. 01/2001 dated 12 Jan 2001:-

i. Solitary confinement in Cell for 14 days( No. 8);

ii. Mulcts of Pay and Allowances for 9 days ( No. 6);

iii. Stoppage of leave for 40 days (No. 12)

6. In view of the above points, the Commanding Officer-in-

charge after satisfying himself to Discharge the petitioner from

service in accordance with Regulations Navy, Part III, Article

278(4) (C) for the petitioner having continued to show disinterest

in service and who had in a statement indicated his inability to

qualify the course- Basic Airmanship Training, made the

recommendation for his discharge to the Flag Officer

Commanding-in-Chief (for CTO Aviation), Headquarter Southern

Naval Command, Naval Base, Kochi-682004.

7. The case of the petitioner was examined by the

Headquarters, Southern Naval Command and the approval to

discharge him from Naval Service in accordance with the

Regulations Navy Part III, Article 278 (4)(c) was accorded and the

same was communicated vide letter dated 12th March 2001.

8. The petitioner was a trainee and was during probationary

service and was discharged as found unsuitable under the order

of the competent authority.

9. We have heard the learned counsel for the parties and

have perused the records. We have also gone through the short

synopsis/written arguments filed on behalf of the petitioner as

well as the respondents. A bare reading of statutory regulation

274 framed under the Navy Act shows that unsuitable,

incompetent or undesirable sailors can be discharged under

Regulation 278 which reads as under :

278. Unsuitable, incompetent or undesirable Sailors.- If the Commanding Officer finds that any sailor of the ship's company is unable, either through mental or physical incapacity or through incompetence, to perform the duties of the lowest rate in his branch to which he can be disrated, or if the retention of any sailor is considered undesirable on grounds of conduct or character, he shall take the appropriate course among the following:-

(a).....

(b)....

(c) Any sailor whole efficiency, physical condition or value to the service becomes materially impaired may be recommended for discharge under this clause. (Emphasis supplied)

10. In the present case, for the reasons stated above i.e. non-

clearance of the training papers in respect of basic air course

device despite giving of a statutory warning for which even the

petitioner was re-batched for enabling him to further attempt to

pass required basic air course, the petitioner showed absolute

disregard for service. He was also found involved in a case of

theft and unauthorisedly left training without any information and

without any permission for which he was marked absent. His

father was also informed telegraphically to direct his son to

report to duty forthwith. It is only, thereafter, he joined at

21.12.2000 when he was tried summarily by the Command

Officer under Section 379 of the Indian Penal Code read with