THAMPAN Vs. ADJUNCT GENERAL

JUDGEMENT

(1.) PETITIONER was selected to the Air Defence Wing on 29-7-1982 and completed his training on 22-12-1983 which was duly attested by the competent authority. There was no adverse remark, his performance during the training was found satisfactory, and he obtained life membership card of the Regiment. On 16-3-1984, however, he got Ext. P5 order of discharge, from the second respondent stating that with effect from that dale his service was no longer required. No reason was given for the order, which had the effect of a summary dismissal from service not warranted by the provisions of the Army Act or other relevant enactments. Against the order, he made Ext. P6 representation, before the third respondent, on 30-3-1984. He also filed o. P. No. 5391 of 1984, which was dismissed by Ext. PV, "without prejudice to his right to approach this court in case the final order passed on Ext. P6 went against him. " Predictably, by Ext. P5, Ext. P5 was upheld" under item 4 of the table annexed to Army Rule 13. " It is submitted that Exts. P5 and PS are illegal, violative of Article 311 (2) of the Constitution of India and S. 23 of the Army Act. There was flagrant breach of the principles of natural justice and his constitutional rights under Arts. 14 and 16 of the Constitution. In the circumstances, he has prayed to quash Exts. P5 and P8 and has prayed for a direction to the second respondent to reinstate him in service "with full back wages and other benefits with effect from 16-3-1984. "

(2.) IN the counter affidavit filed by the third respondent, the basic facts relating to the recruitment and training as alleged have been admitted. It is stated, that the petitioner was discharged by the second respondent viz. , the Commandant, 23/air Defence Wing, Artillery Centre, nasik Road Camp since his service was no longer required under item IV of the table annexed to R. 13 of the Army Rules. It is pointed out that the discharge was made on the basis of a special verification report, which indicated that he was unfit for retention in service. He was recruited and allowed to undergo training before receipt of the specifically verification report, about which he could not complain. The discharge was made having regard to his antecedents as revealed in the report and in the best interest of the Defence Service. He cannot put forward a right to his retention in service which would be against national interest. There was no question of infringement of Art. 311 (2) of the constitution or of S. 23 of the Army Act, in as much as the discharge was made under R. 13 of the Army Rules. No reasons need be given for the discharge, which was made under the relevant rules. None of his right has been violated and he is not entitled to the relief claimed.

(3.) SECTION 23 of the Army Act reads: "23. Certificate on termination of service.- Ever}' junior commissioned officer, warrant officer, or enrolled person who is dismissed, removed, discharged, retired or released in the service shall be furnished by his commanding officer with a certificate, in the language which is the mother tongue of such person and also in the English language selling forth, - a) the authority terminating his services; b) the cause for such termination; and c) the full period of his service in the regular army". But then, according to the respondents, the above provision is inapplicable since the discharge was made under item IV of the table annexed to R. 13 of the Army Rules, on the basis of the special verification report, which indicated that he is unlikely to become an efficient soldier.