Delhi High Court
A. Loganathan No. 15316061M ... vs Union Of India & Ors. on 31 July, 2020
$~4 & 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 31st July, 2020
+ W.P. (C) 4829 /2020
A. LOGANATHAN ..... Petitioner
Through: Mr. Uday Shankar Maurya, Adv.
Versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Suman Chauhan, CGSC with
Ms. Aakansha Kaul and Mr.
Manek Singh, Advs.
AND
+ W.P. (C) 4830 /2020
GURCHARAN SINGH ..... Petitioner
Through: Mr. Uday Shankar Maurya, Adv.
Versus
UNION OF INDIA & ORS. .....Respondents
Through: Mr. HV Shankar, CGSC
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
W.P. (C) Nos. 4829/2020 & 4830/2020 Page 1 of 5
C.M. Appln. Nos. 17433/2020 & 17435/2020 (Exemption from
filing certified copies of the annexures and from filing attested
copy of notary of affidavit/deficiency of court fee) in W.P. (C)
4829/2020
C.M. Appln. Nos. 17436/2020 & 17438/2020 (Exemption from
filing certified copies of the annexures and from filing attested
copy of notary of affidavit/deficiency of court fee) in W.P. (C)
4830/2020
1. Allowed, subject to just exceptions and as per the extant
rules.
2. The applications are disposed of.
W.P. (C) 4829/2020, C.M. Appln. 17434/2020 (for stay)
W.P. (C) 4830/2020, C.M. Appln. 17437/2020 (for stay)
3. The Petitioner in both these petitions are the applicants in
OA No.624/2020 and OA No.855/2020 respectively preferred
before the Armed Forces Tribunal, Principle Bench, New Delhi
(AFT), filed by the petitioners against the orders of the respondents
1 to 3 Indian Army of discharge of the petitioner in each of these
petitions from service, for the reason of 'Low Medical Category'.
The AFT, though has issued notice of the OAs filed by the
petitioners impugning the order of their discharge, but has refused
to grant the interim relief sought by the petitioners, of stay of the
order of discharge and which would have led to the petitioners
continuing in the service of the respondents No. 1 to 3 Indian Army
till the decision of the OA or even thereafter. Aggrieved therefrom,
these petitions have been preferred.
W.P. (C) Nos. 4829/2020 & 4830/2020 Page 2 of 5
4. We may mention that both the petitioners, enrolled as sepoys
with the respondents No. 1 to 3 Indian Army, way back in 1996,
were discharged in 2013, after 17 years of service but were
thereafter, in about the year 2015, enrolled in Defence Security
Corps, for a period of ten years, i.e., till the year 2025.
5. The counsel for the petitioners has vehemently argued before
us that the order of discharge of each of the petitioners, on the
ground of 'Low Medical Category', is erroneous, contrary to
judgments of this court, and is liable to be set aside. A judgment of
the Division Bench of this Court being judgment dated 25th
September, 2008 in W.P. (C) 698/1986 titled Subedar M.T.V.
Kunhi Kannan Nambiar Vs. Union of India in this respect is cited
and it is contended that the petitioners are entitled to continue in
service till the year 2025.
6. We have enquired from the counsel for the petitioners,
whether not, in the event of the petitioners being successful in the
OAs filed by them before the AFT, the reinstatement of the
petitioners will be with all consequential benefits of what the
petitioners would have earned during the said time.
7. The counsel for the petitioners states that, 'undoubtedly so,
but the petitioners by then would be too old to enjoy the money
even if paid to them'.
8. We are of the opinion that even if a prima facie case is to
exist in favour of the petitioners, for the petitioners to be entitled to
W.P. (C) Nos. 4829/2020 & 4830/2020 Page 3 of 5
interim relief, the petitioners have to show not only a prima facie
case but also that if the interim relief is not granted, they will suffer
an 'irreparable loss and injury' and that the 'balance of
convenience' is also in the grant of interim relief rather than in
non-grant thereof. In spite of our asking, no arguments have been
addressed on this aspect.
9. We are of the view that the said two ingredients of
'irreparable loss' and 'balance of convenience' are not satisfied by
the petitioners. As aforesaid, the petitioners, in the event of
succeeding in the OAs filed by them before the AFT, would get all
the emoluments, which they would have earned had the order not
been passed. No case of any irreparability of the injury caused by
non-payment of emoluments month by month, is pleaded. On the
contrary, the 'balance of convenience' is not in favour of imposing
the petitioners, who have been found unfit, on a disciplined force
like the Indian Army. The presence/continuation of the petitioners
in the Indian Army, under Court orders, can be detrimental to the
discipline required and expected in a Force like the Indian Army,
with the petitioners, under the blanket of Court order, not abiding
by the discipline required.
9. We may mention that we have dealt with such interim reliefs
in judgment dated 15th July, 2020 in W.P.(C) No. 4138/2020 titled
Col (TS) Ajay Sangwan Vs. Union of India and in judgment dated
23rd July, 2020 in W.P.(C) No. 4413/2020 titled CDR Senthil VP
Vs. Union of India and other connected petitions also and given
W.P. (C) Nos. 4829/2020 & 4830/2020 Page 4 of 5
detailed reasons therein and in view thereof, do not feel the need to
reiterate the same.
10. It also cannot be lost sight of that the AFT has been
constituted as a specialist Tribunal to deal with the disputes as have
arisen, relating to Armed Forces and the writ jurisdiction of this
Court has been invoked against the order of the AFT of non-grant
of interim relief. Once the order of the AFT is found to be in
accordance with law and no perversity is found therein, the
question of interference in writ jurisdiction does not arise.
12. The petitions are dismissed.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J.
JULY 31, 2020
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