P. N. MANOHARAN Vs. COMMANDING OFFICER

JUDGEMENT

(1.) Petitioner was employed in Territorial Army under the second respondent. He joined that Army on 31st August 1977 and served in accordance with the bond executed by him upto 31st August 1984. By Ext. P1 letter petitioner was informed that his present term of engagement expires on 30th August 1984 and if he is willing to serve further in the Territorial Army he has to send his willingness along with an application for extending his service. Since he had completed his terms of engagement and he was free to choose not to serve further he expressed his unwillingness and requested that he may be discharged from service with effect from 31st August 1984 as per his letter, Ext. P 2 dated 23rd August 1984. In reply to that, he was informed that his physical presence is required in the Unit for completing documentation for initiating discharge drill and that his case of discharge will therefore be considered when he reports for annual training camp commencing on 25th September 1984. Petitioner sent Ext. P 4 communication requesting the second respondent to make necessary orders for the issue of discharge certificate. In pursuance to the insistence of the petitioner to get the discharge certificate, it appears that second respondent issued a discharge certificate on 25th October 1985. With that certificate he applied for enrolment in Defence Service Corps (hereinafter referred to as D.S.C.). He was duly selected. He joined the service of D.S.C. on 13th January 1986. On 27th July 1987 he was served with a show cause notice asking him to explain why he should not be discharged from D.S.C. as a case of irregular reemployment. The reason appears to be that he was discharged from service under R.14(b)(iii) of the Territorial Army Rules on the ground of service no longer required. Petitioner submitted his reply to that notice. A copy of that reply is marked in this case as Ext. P 7. His explanation was rejected and he was discharged from service by Ext. P 8 order dated August 1987. That order is under challenge.

(2.) Notices on this petition were served on the respondents in 1987 itself. Central Government Standing Counsel entered appearance on behalf of the respondents. No counter affidavit has been filed in the case disputing the claims of the petitioner.

(3.) Petitioner was employed in the Territorial Army under the command of the second respondent. He joined the Territorial Army on 31st August 1977. His engagement was for a period of 7 years. That 7 year period expired on 31st August 1984. This is admitted by the second respondent in Ext. P1 communication sent to the petitioner. As per R.14(a) of Territorial Army Rules, 1948 every person enrolled shall, on becoming entitled to receive his discharge, be so discharged with all convenient speed. So the second respondent should have issued the discharge certificate discharging the petitioner from the Territorial Army immediately on his becoming entitled to receive his discharge namely 31st August 1984. But the discharge certificate was issued only on 25th October 1985. That certificate can only be one issued under R.14(a) of the Territorial Army Rules, 1948. Clause (b) of that Rule has no application to the discharge given to the petitioner. Sub clause (iii) of clause (b) of R.14 applies to persons discharged during the period of engagement. It cannot apply to persons discharged on the expiry of the period of engagement. Petitioner having been discharged on the expiry of the period of engagement cannot be treated to have been discharged on the ground of his services are no longer required. So the premises on which Ext. P 6 show cause notice happened to be issued was erroneous.