EX CLK SAJJAN SINGH Vs. UOI

JUDGEMENT

(1.) In this petition for a writ of certiorari, the petitioner calls in question the correctness of an order dated 17.01.2005 passed by the Officer-in-charge Artillery, Records, Nasik Road Camp discharging the petitioner from service at his request, which request according to the petitioner, stood withdrawn by him before the discharge was sanctioned.

(2.) The petitioner was enrolled as Naik Clerk in 74. Medium Regiment of the Indian Army on 31.01.2001. In July, 2004 he was transferred in the same capacity to 27, Mountain Artillery Brigade where he reported for duty on 30.07.2004. The authorities in charge of 27, Mountain Artillery Brigade found the petitioner to be professionally weak and described him as an unwilling worker who lacked initiative and was not able to work under stress and strain. In terms of an order dated 30.09.2004 issued by 27, Mountain Artillery Brigade, the petitioner was repatriated back to his parent regiment. The communication also indicated that the petitioner was ready to proceed on discharge and a copy of the application submitted by the petitioner to that effect enclosed and forwarded to the parent unit of the petitioner. From the official record made available to us by learned counsel for the respondents, it appears that the Commanding Officer of 74, Medium Regiment accepted the request made by the petitioner for voluntary discharge on 14.12.2004 and the petitioner sent for completion of the formalities to the Artillery Records which in turn passed an order on 17.01.2005 discharging the petitioner w.e.f. 31.03.2005. A copy of the said order has been enclosed by the petitioner as Annexure P 4 to the writ petition.

(3.) The petitioner's grievance in the above backdrop is that the sanction of his discharge by the Commanding Officer on 14.12.2004 followed by the discharge order paassed by the Artillery Records on 17.01.2005 is illegal and wholly unjustified keeping in view the fact that the request made by the petitioner for voluntary discharge had been withdrawn by him in terms of two different communications, one dated 02.11.2004 and the other dated 06.11.2004 addressed to the Commanding Officer of the unit through proper channel. It is contended by Mr. D.N. Sharma, counsel appearing for petitioner that although first of the withdrawal letters dated 02.11.2004 does not bear any acknowledgment about the same having been submitted to the Commanding Officer, there is a proper acknowledgment on the second letter dated 06.11.2004 as is evident from the endorsement made on the second page of the said letter. It was contended that once the request for voluntary discharge stood withdrawn by the petitioner before the Commanding Officer who had sanctioned the discharge acting upon the said request, there was no reason for the Commanding Officer sanctioning discharge nor was there any justification for the Artillery Records to issue a discharge order ignoring, in the process, letters of withdrawal formally submitted by the petitioner. Reliance was placed by Mr. Sharma upon Rule 11(2) of the Army Rules, 1954 apart from a decision of a Division Bench of this court in Shashi Pal Sharma v. Govt. of NCT of Delhi & Ors., 127 (2006) DLT 88 : 2006 (86) DRJ 363[DB]. It was urged by Mr. Sharma that not only the Scheme of the Army Rules but even the general Principles of Law entitled the petitioner to withdraw the request for voluntary discharge from service at any stage before the said request had been accepted by the competent authority. The submission of withdrawal letters not being in dispute in the instant case, it was not open to the Commanding Officer or any other authority, for that matter, to send the petitioner out of the service, his conduct and deficiencies reported by the 27, Mountain Artillery Brigade notwithstanding.