Ex. Spr. Anil Kumar Rawat vs Union Of India And Ors.
2013 Latest Caselaw 1233 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 Date of decision: 13.03.2013
+                            W.P.(C) 1632/2013
       EX. SPR ANIL KUMAR RAWAT                              ..... Petitioner
                             Through Mr. S.S. Pandey, Adv.
                    versus
       UNION OF INDIA AND ORS                                ..... Respondents

Through Mr. Ankur Chibber, Adv.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

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1. The Petitioner seeks a direction to quash the order of the Armed

Forces Appellate Tribunal dated 12.9.2012 dismissing his original

application as well as the order made in the review proceeding on 30.1.2013.

2. The Petitioner's case in brief is that he was recruited by the Indian

Army on 1.6.1990 in the Engineers Regiment. It is stated that during the

period 1991-1996 he served with 67 Engineers Bridge Regiment. During

this period it is alleged that on account of domestic problems he lost his

mental balance and earned three red ink entry punishments under Section

39(a) of the Army Act. In this background on 10.12.1998 a show cause

W.P.(C) 1632/2013 Page 1 notice was issued as to why he should not be removed or discharged from

service. The Petitioner's replies were considered and eventually by order

dated 31.12.1998 he was discharged from the service after having put in

eight years and seven months of service.

3. Counsel for the Petitioner urges that legal redress could not be

secured within time on account of the fact that he was suffering acutely

from mental illness. In support of this argument he relied upon various

documents right upto 2011. Some of these were also sourced under the Right

to Information Act. Counsel urged that having regard to the circumstance

that the Petitioner was allowed to work for two years after the last red ink

entry made in 1996, there was no provocation for his discharge, made on

31.12.1998.

4. Counsel further emphasised that order of discharge was ex facie

illegal because the concerned Regulation mandates that only upon the

personnel earning four or more red ink entries could he be proceeded with

and discharged.

5. Learned counsel argued that having regard to the Petitioner's pitiable

condition, since he is idle and unoccupied and virtually a liability upon his

family, this Court should adopt a humane approach inline with the decision

W.P.(C) 1632/2013 Page 2 of the Division Bench in WP(C) No.4656/2003, Ex. Sepoy Sube Singh vs.

UOI dated 20.4.2007. It was contended that like in that case this Court

should direct the Army authorities to treat the period during which the

Petitioner was out of employment as having been spent in service in order to

render him eligible for pension.

6. This Court has carefully considered the submissions. The following

portion of the impugned order of the Tribunal dated 12.9.2012 is relevant

and is reproduced below:

"Suffice it to say that no medical documents were filed along with the application, however, today learned counsel for the petitioner made available for our perusal certain medical papers, and a look at these documents shows that they are all of the year 2002, to start with, being upto 10.8.2002, 27.8.2002, then of 24.12.2008, 2.3.2009, 11.4.2009, 4.6..2009 and 9.9.2009. Then EEG report dated 2.6.2011 has been made available, which also shows low voltage activity which may be due to anxiety state, and fast activity may be due to restless mind. The CET scan record did not reveal any localization. The awake record did not reveal any sharp wave or signs of localization or laterlisation. Then certain papers of January, March and July 2011 have also been made available to show continued administration of some medicines.

However, taking everything on the face value, without going into the long land short effect of them, even according to the petitioner, after he improved his position of health, moved application under Right to Information Act and the information could be obtained in May, 2011. Even taking from that date, the petitioner is clearly bared by time.

Thus, we do no find any ground to condone the delay. The application for condonation of delay is dismissed.

W.P.(C) 1632/2013 Page 3 Consequently, the petition is also dismissed being time barred."

7. This Court is of the opinion that merely relying upon the medical

records, as in the present case it would not be sufficient to overcome

inordinate delay of 14 years in approaching the Court. Even though the

discretion of the High Court to entertain a belated claim is not constrained

by express provisions of law, at the same time Courts are mindful about the

time taken by the litigant claiming to be aggrieved by the order of an

administrative authority. In the present case the grievance occurred almost

15 years ago. No doubt the Petitioner claims to have been suffering from

mental or psychological illness, yet it is not as if he was unaware of his

rights altogether. He appears to have also written to the Army authorities

and even obtained the medical documents by seeking recourse to the Right

to Information Act. Having regard to the circumstances, this Court is of the

opinion that no fault or infirmity can be found with the order of the Armed

Force Tribunal.

8. As regards the plea that the court should adopt an approach similar to

one in Ex Sepoy Sube Singh (supra), this Court notices that there the

Petitioner had spent about more than 13 years in service. He also

approached the Court within reasonable time; the discharge took place in

W.P.(C) 1632/2013 Page 4 December, 2000 and the petition was filed in 2003.

9. Having regard to those special circumstances the Court which would

well have been acting within its right to direct reinstatement having

concluded that the discharge was unjustified yet did not do so and instead

moulded the relief by directing that the discharge be treated as postponed by

further two years period to enable him to earn pension. The facts of this

case are entirely different. The Petitioner had barely served eight years and

in order to be eligible for pension he had to serve further seven years. If he

had approached the Court within reasonable period of his discharge, there

could have been adjudication on the merits of his claim. Not having been

so, this Court is of the opinion that his highly belated claim could not have

been entertained.

10. In view of the above discussion, this Court is of opinion that the

petition is without merit. It is, therefore, dismissed.

S. RAVINDRA BHAT (JUDGE)

SUDERSHAN KUMAR MISRA (JUDGE) MARCH 13, 2013 aj

W.P.(C) 1632/2013 Page 5