HUKUM SINGH, S/O. SRI. KACHERU SINGH, Vs. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE, DHQPO, NEW DELHI - 110 011, COL. S.N. TIWARI, COMMANDING OFFICER, 6 PARA (SF) C/O 56 APO AND BRIG. DEEPAK SINHA, OFFICER INCHARGE RECORDS, P

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned counsel for the respondents.

(2.) THE petitioner had joined the Indian Army as a Sepoy in the year 1983 and was posted at Agra in the Para regiment Training Centre. It is the petitioner's case that after he served at Agra, he was posted to Manipur and according to him, he has been serving the army to the best of his ability and to the satisfaction of his seniors. In the year 1987, it was his case that he was posted to Dras at Jammu and Kashmir and after about a year, he was posted back to Agra. In the year 1995, he was promoted as a Naik and was posted to Bangalore at the Para Regiment. The petitioner submits that thereafter he was promoted as Havaldar and posted to Baramulla at Jammu and Kashmir. Subsequently, be was again posted to Agra in the year 2001 and he was serving there. The petitioner claims that he graduated, obtaining a Bachelor's Degree, while in service. Respondent No. 2 was the Commanding Officer of the petitioner and Respondent No. 3 was the Officer in charge of the records. Since he was a qualified Graduate, the petitioner claims he had an edge over his other colleagues and he informed Respondent No. 2 that his wife was suffering from a mental condition and that she was keeping indifferent health. Respondent No. 2 had suggested that he voluntarily retire or seek a premature discharge from service. The petitioner was not ready to do so. However, he was ordered by one Capt. G.M. Khan, who was the Company Commander, to tender his papers for premature discharge from service. When he has further enquired as to why he should do so, he was informed that it was on the orders of Respondent No. 2. The petitioner felt that he had no choice but to submit his papers seeking premature discharge and the petitioner also put up his pension papers on the ground of premature discharge during the month of August 2005. The petitioner, however, had a guilt feeling that he was letting down his family by submitting his papers for premature discharge. It is the petitioner's case that his wife, as soon as she learnt about the petitioner's intention, had sent a telegram to Respondents 2 and 3, during August 2005 itself, requesting the authorities to cancel the request made by the petitioner towards discharge. She wrote a letter dated 9.9.2005 again requesting the said authorities to cancel the petitioner's application for premature discharge. She had stated that she believed that the petitioner may have been influenced to submit his papers for discharge. It transpires that one Lieutenant Colonel Yashpal Singh had replied to the wife of the petitioner stating that Respondent No.2 was the competent authority to decide the issue and therefore, she had written yet again to Respondents 2 and 3 requesting that they reconsider the intention of the petitioner seeking premature discharge. The petitioner was, however, directed to report at the Bangalore Para Regiment and accordingly, he had come to Bangalore from Agra to fulfil the formalities of the premature discharge. In the meanwhile, the petitioner, however, bad changed his mind and wrote to Respondents 2 and 3 at New Delhi and also addressing other superior officers requesting cancellation of his intended discharge in terms of his letter dated 17.02.2006. However, the respondents having proceeded to process his application for discharge and having issued the impugned order, the petitioner is before this Court.

(3.) THE learned counsel for the respondents have entered appearance and filed Statement of objections to vehemently oppose the petition. Firstly, the learned counsel for the respondents would submit that the petition itself is not maintainable as this Court would have no jurisdiction in respect of the alleged cause of action. The learned counsel would point out that the petitioner was actually posted to Haryana and he had submitted his application seeking discharge while he was at Agra and the petitioner's application for such discharge having been accepted at Agra and the petitioner merely having come to Bangalore to submit his papers for pension and the order of discharge having been served upon the petitioner at Agra, this Court would hardly have the jurisdiction to entertain the present petition and would submit that the petition ought to be rejected on that ground alone and without prejudice to this preliminary objection, it is further contended that the petitioner of his own volition, submitted his application seeking premature discharge. Allegations made against his superior officers to the effect that they had influenced and compelled him to submit his resignation, is Utter falsehood and mischievous on the part of the petitioner. The petitioner's wife suffering from a mental condition was known to all in the regiment as the petitioner made it a point to broadcast this circumstance and it was of his own volition that he had submitted his application for discharge. The petitioner's wife having addressed the respondent - officers seeking to withdraw the discharge, is wholly irrelevant as the entire process was complete in addressing the petitioner's application for discharge and when it was in the final stage of the order being formally issued to the petitioner, the petitioner having chosen to withdraw the application for discharge, is therefore not binding on the respondents who had already taken a decision to discharge the petitioner and the formal act of serving the order of discharge on the petitioner was alone pending. Therefore, in the eye of law, it cannot be said that the petitioner's application for discharge was not accepted. Hence, it is not open for the petitioner to seek withdrawal of his application for discharge after the same was processed by the competent authority and he had been asked to report at Bangalore along with his papers for pension on account of his premature discharge. The petitioner had also filed his papers in respect of pension was concerned which would be the clinching circumstance as to whether or not the petitioner's application for discharge from service was accepted, if in fact he had submitted his papers for pension, it Would follow that the petitioner was acting clearly on the understanding that his application for discharge was accepted. For otherwise, the question of submitting his pension papers would not arise. Therefore, he would submit that viewed from any angle, there is no substance in the present petition as there is a completed offer and acceptance of the petitioner's application for premature discharge from service and acceptance by the authorities. The same being sought to be questioned at this point of time, would not arise and therefore, would submit that the petition be dismissed.