Pankaj Choudhary vs Uoi & Ors
2012 Latest Caselaw 5773 Del

+$~
*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                           W.P.(C) No.1587/2012


                               Date of decision:   26th September, 2012

      PANKAJ CHOUDHARY                                       ..... PETITIONER
                                Through   Mr. R.K. Saini, Adv. with
                                          Mr. Vikram Saini, Adv.


                                Versus

      UOI & ORS                                            ..... RESPONDENT

Through Dr. Ashwani Bhardwaj, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL, J (Oral)

1. The petitioner was appointed as Gentleman Cadet in the Indian Army

on 14th April, 2008 by 20 SSB, Bhopal through the UPSC's Combined Defence

Service Entry. It is undisputed that at the time of his appointment, the

petitioner was declared medically fit by the Research & Referral Hospital of

the Army at New Delhi where he had undergone the medical examination.

2. The petitioner was then sent to the Indian Military Academy (IMA) at

Dehradun for undergoing the training course for a duration of eighteen

months. The petitioner successfully completed the first and second term of

the training course. While undergoing the third term training between July,

2009 to December, 2009, in the month of September, 2009, the petitioner

suffered injury on his left shoulder while horse riding as part of the training.

The petitioner was treated at the Section Hospital of the IMA, Dehradun and

was advised physiotherapy and rest. As a consequence of his inability to

perform the requisite test as well as exercises relating to the training

because of his injury, at the end of the third term, in December, 2009, the

petitioner was relegated to the third term of the course and called upon to

repeat the same. The petitioner has complained that for want of sufficient

time for full recovery of the injury, he could not successfully complete the

third term and was again required to repeat the same from July, 2010.

3. It is undisputed that during this period as well, the petitioner was

unable to do the physical exercises required to be undergone as part of the

training which included chin-ups and chest touches. He was consequently

issued a letter of warning dated 2nd November, 2010 informing him that he

has been placed on the warning of withdrawal for failing the tests in this

regard in the third attempt. As a consequence of the petitioner's injury and

inability to complete the requisite physical requirements of the training, the

petitioner was issued a letter on the 1st of December, 2010 titled as

`withdrawal' informing him that he stood withdrawn from the training and

that he may be despatched home on a leave pending approval of the

withdrawal from the competent authority.

4. It is an admitted position that while awaiting approval of the

withdrawal, the petitioner was consequently sent home immediately.

5. It is the petitioner's case that he has not been communicated the

approval of the withdrawal as Gentleman Cadet from the Indian Army and

was awaiting the final decision thereon without any communication from the

respondents. The writ petitioner states that he had approached the

respondents personally on a number of occasions to know the outcome of

the above correspondence without any fruitful reply about the status of the

approval.

6. It has also been urged that as a result of the withdrawal and the

desptach of the petitioner from the Academy, he has not been paid any

stipend since December, 2009 and that he was also unable to take up any

job for the reason that he still stood on the rolls of the Army.

Aggrieved by the unfair and unwarranted negligence and the

indifference on the part of the respondents, the petitioner has filed the

instant writ petition praying for directions to the respondents to forthwith

take final decision with regard to the withdrawal of his appointment as

Gentleman Cadet from the Indian Military Academy. The petitioner also

prays for a direction to the respondent to pay him salary & allowances from

December, 2010 till the date the approval of the withdrawal is

communicated to him.

7. The respondents were served with advance copy of the writ petition

which appears to have motivated them to take steps in the matter. The

respondents, thereafter, issued a letter dated 27th March, 2012 to the

petitioner informing him of the approval of the withdrawal. The petitioner

accepts that he has received the communication dated 27th March, 2012 and

has thus prayed for compensation till the end of March, 2012.

8. In response to the notice to show cause, the respondents have taken a

stand that the competent authority had approved the withdrawal of the

petitioner from his pre-commission training exempting the cost of the

training which includes the stipend paid to him. It has been submitted that

the withdrawal was approved by the letter dated 11th February, 2011 of the

Integrated Headquarters of the Ministry of Defence (Army), which has been

placed on record.

9. It is stated by Dr. Bhardwaj, learned counsel for the respondents, that

the approval of the withdrawal was originally communicated to the petitioner

by the letter dated 11th February, 2011 and was re-sent on 27th March, 2012.

Copy of the letter dated 27th March, 2012 has been enclosed with the

counter affidavit.

10. When the matter was heard by us on the 19th September, 2012, on

request of learned counsel for the respondents, it was adjourned for hearing

today to enable the respondents to produce before this court records to

manifest that the letter dated 11th February, 2011 was actually sent to the

petitioner dated 11th February, 2011. We are informed today by Dr.

Bhardwaj, learned counsel for the respondents that the respondents do not

have any proof to support their contention that the communication was

actually or at all sent to the petitioner.

11. It is trite that such like official communications are despatched against

recorded delivery. The despatch and receipt of correspondence by the

authorities is also strictly maintained which position is not disputed before

us. Therefore, the irresistible conclusion from the inability of the respondents

to produce any record to support their averment in the counter affidavit is

that the communication was never sent to the petitioner who has therefore

remained under the belief that approval of his withdrawal from training is

still awaited. The petitioner has been compelled to file the present writ

petition in these circumstances.

12. The respondents are also unable to dispute that given the situation

where a withdrawal of the approval by the competent authority has not been

received, the person would continue to be on the rolls of the IMA and would

be unable to seek alternative employment.

13. Mr. Saini, learned counsel for the petitioner has further submitted that

even if it were to be held that the petitioner is not entitled to stipend, the

petitioner is entitled to compensation equal to the stipend he would have

drawn if he was still pursuing the training given the fact that he has been

prevented from pursuing an alternative career.

14. The respondents were bound to have processed the approval

expeditiously and communicated the same to the petitioner at the earliest.

In fact, they were duty bound to ensure that the communication was actually

received by the petitioner.

15. Learned counsel for the petitioner has urged that the action of the

respondents is negligent and mala fide. It has also been contended that a

completely false plea to the effect that the approval of the withdrawal was

actually sent to the petitioner, has been taken on affidavit in the counter

affidavit which has been filed.

16. The petitioner has lost a golden career on account of injury suffered

during training. His agony has been unfortunately compounded by the

respondents by keeping him in suspense about the status of his withdrawal

and hence his employment. If he had been informed with expedition, the

petitioner could have picked up the loose ends and explored employment

options available. We have no manner of doubt that the respondents have

acted negligently and have treated the entire matter with extreme

casualness. We are also of the view that the petitioner has been wrongfully

and unfairly deprived of fruitful engagement and employment for the period

from 1st December, 2010 to 31st March, 2012 (when the letter dated 27th of

March, 2012 was received by him). We find substance in the petitioner's

prayer that he deserves to be compensated for the negligence and tardiness

of the respondents and the amount equivalent to the stipend which the

petitioner would have drawn if he was continuing with the training, appears

to be fair compensation for the loss which the petitioner has enured.

17. The petitioner has been compelled to initiate the legal remedy by writ

petition which has also been necessitated for the inaction of the

respondents. The petitioner is therefore entitled to costs of the present

petition. We may note that given the false and unsupported stand taken in

the counter affidavit, we were inclined to take action against the concerned

officials for the same. However, for reasons of expediency, the same is not

being directed in the present case. The respondents are directed to be

vigilant and ensure that the stand taken in the counter affidavit is based on

necessary and relevant records.

18. In view of the above discussion, it is directed as follows:-

(i) the petitioner is deemed to have received the communication of the

approval of his withdrawal by the dated 27th of March, 2012.

(ii) The petitioner is held entitled to compensation which is assessed at an

amount equivalent to the stipend which the petitioner would have drawn if

he had continued with the training between the period from 1st December,

2010 to 27th March, 2012.

(iii) The petitioner shall be entitled to costs of the writ petition which are

assessed at Rs.20,000/-.

(iv) The payment in terms of para (ii) & (iii) above shall be made to the

petitioner within a period of two months from today.

(v)     The petition is allowed in the above terms.




                                                          (GITA MITTAL)
                                                             JUDGE



                                                          (J.R. MIDHA)
                                                              JUDGE
        SEPTEMBER 26, 2012
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