Delhi High Court
Junior Warrant Officer D R ... vs Union Of India & Ors on 5 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 05.12.2014
+ W.P.(C) 8527/2014, CM APPL. 19699/2014
JUNIOR WARRANT OFFICER D R MUNDIYARA
..... Petitioner
Through: Mr. Piyush Kalra, Adv. with Mr.
Krishna M. Singh, Adv.
versus
UNION OF INDIA & ORS
..... Respondent
Through: Mr. Ajay Digpaul, CGSC with Mr.
Vijay Kinger and Mr. Talvinder
Kaur, Advs.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
KAILASH GAMBHIR, J. (Oral)
1. By this petition filed under Article 226 of the Constitution of
India, the petitioner seeks quashing of the order dated 17.09.2014
passed by the learned Armed Forces Tribunal (hereinafter referred
to as the „AFT‟), terming the same to be illegal and arbitrary. The
petitioner also seeks directions to the respondents for payment of
entire arrears, allowances, bonus etc. for the period 01.02.2010 to
14.12.2012 and that this period should be treated as a period spent
on duty by the petitioner. The petitioner also seeks a direction to the
respondents for considering his case for promotion from the date of
his reinstatement i.e., 06.01.2010, after taking into consideration
_____________________________________________________________________
__
the aforesaid period from 01.02.2010 to 14.12.2012.
2. Mr. Ajay Digpaul, the learned Standing Counsel is present on
behalf of the respondents along with Wing Cdr. Mr. Ashok
Chowhan who is assisting him.
3. The facts set out by the petitioner are that he got enrolled in
the Indian Air Force (IAF) on 06.01.1981 as an Airman and served
the IAF for 29 years unblemished; that after completion of 20 years
of engagement, he applied for extension of service which was
granted by the IAF authority in terms of AFO 11/99 para 4, sub
para "C"(IV). However, in August, 2007, the petitioner applied for
further extension in service from 01.02.2010 and for getting the
said extension in service, he had attached a medical certificate
which certified him to be medically fit. The IAF authority, vide
their reply dated 18.08.2008 had rejected the petitioner‟s request for
extension in service pursuant to which certain representations were
filed by the petitioner. Finally the IAF authority, vide their reply
dated 25.01.2010, rejected the petitioner‟s claim for the grant of
extension in service. The petitioner challenged the said decision of
the IAF authority before the learned AFT in O.A. No.48.2010. Vide
order dated 29.01.2010, while disposing off the said O.A. of the
petitioner, the learned AFT gave a direction for the medical re-
examination of the petitioner by the Medical Board. In the
meanwhile, the IAF authority took a decision to grant 30 per cent
disability pension to the petitioner, which as per the petitioner, was
never availed by him and in fact, was declined by him.
4. The learned AFT, vide its order dated 06.07.2011, had
_____________________________________________________________________
__
dismissed the Contempt Application filed by the petitioner without
taking into consideration the fresh report of the Medical Board.
Aggrieved by the said order of the learned AFT, the petitioner had
filed W.P.(C) 289/2012 before this Court. After considering the
facts in its entirety, vide order dated 24.04.2012, this Court directed
the respondents to constitute a fresh Medical Board for the medical
re-examination of the petitioner.
5. As per the petition, the said order dated 24.04.2012 was not
complied with by the respondents and therefore, the petitioner had
filed a contempt petition before this Court vide Civil Contempt
Petition No. 859/2012 and the said petition was taken up by the
learned Single Judge. On 14.12.2012, the respondents through their
counsel placed on record a communication dated 07.12.2012,
whereby a decision was taken by the respondents to reinstate the
petitioner for a period of three years from 06.01.2010 to
05.01.2013. The learned counsel for the respondents therein took a
stand that the needful had already been done by the respondents at
their end and therefore, the petitioner‟s contempt petition could be
disposed off in view of the communication dated 07.12.2012,
which was supplied to the petitioner‟s counsel in Court. Pursuant to
the said communication dated 07.12.2012, the petitioner reported
on 15.12.2011 to join the service.
6. The petitioner, vide his letter dated 06.03.2013, made a fresh
request to the respondents for regularising the past period with
effect from 01.02.2010 to 14.12.2012 and also for payment of pay,
allowances, bonus etc. for the said period. This request of the
_____________________________________________________________________
__
petitioner was rejected by the respondents vide their letter dated
17.07.2013. Thereafter, the petitioner approached the learned AFT
to challenge the said decision of the respondents vide O.A.
No.407/2013. This fresh O.A., filed by the petitioner, has been
decided by the learned AFT vide order dated 17.09.2014 and the
same is subject matter of challenge before this Court in the present
writ petition.
7. On perusal of para 7 of the impugned order, we find
reasoning of the learned AFT in denying the petitioner‟s claim on
the premise that the petitioner did not challenge the order dated
07.12.2012, although he was duly informed of the decision taken by
the respondents, rejecting his request for the grant of back wages is
totally irrational and perverse. The learned AFT took a view that
the petitioner should have raised the plea of back wages when the
contempt proceedings were taken up in this Court but he chose to
keep quite on that day and accepted the order of reinstatement. Why
we say the reasoning of the learned AFT is perverse because the
order dated 14.12.2012 passed by this Court in the contempt
proceedings clearly shows that a copy of the order dated 7.12.2012
was supplied by the respondent‟s counsel to the petitioner‟s in the
Court. Therefore, the petitioner did not have an occasion to
challenge the said order in the contempt proceedings. The contempt
proceedings were disposed off by the Court considering the fact
that the respondents had taken a decision to reinstate the petitioner
w.e.f. 06.01.2010 to 05.01.2013. Without wasting any further time,
the petitioner immediately joined and reported for duty on
_____________________________________________________________________
__
15.12.2012 and thereafter, vide application dated 06.03.2013, he
made a request for the grant of pay, allowances etc. for the said
period and for treating the petitioner as having spent the said period
on duty.
9. Considering the fact that the Medical Board constituted
pursuant to the directions given by this Court in WP(C) 189/2012,
found the petitioner medically fit, therefore, we are of the view that
the petitioner was not at fault if the previous Medical Board had not
declared him medically fit. The petitioner was prevented from
timely extension not because of any fault on his part but because of
some erroneous view taken by the previous Medical Board.
Therefore, this Court is of the view that the petitioner cannot be
denied the benefit of pay, allowances, bonus etc. for the said period
due to an error on part of the previous Medical Board or any other
lapse on part of the respondents. It is a matter of record that the
fresh Medical Board was constituted pursuant to the intervention of
the Court and had this been done by the respondents themselves,
then perhaps, this time could have been saved.
11. In view of the aforesaid circumstances, we are of the view
that the petitioner is entitled for pay, allowances, bonus etc. for the
period 01.02.2010 to 14.12.2012, taking this case to be peculiar in
its own facts and circumstances despite the fact that during the said
period, the petitioner had not discharged duties on his post. The
impugned order dated 17.09.2014 passed by the learned AFT is
hereby quashed.
12. So far the petitioner‟s claim with regard to his promotion is
_____________________________________________________________________
__
concerned, we leave it to the respondents to consider his case and
the said period from 01.02.2010 to 14.12.2012, for all purposes
shall be treated as a period spent on duty by the petitioner.
13. The petition stands disposed off in the above terms.
KAILASH GAMBHIR, J
DECEMBER 05, 2014/acm NAJMI WAZIRI, J.
_____________________________________________________________________
__
