ALI JABED Vs. UNION OF INDIA

JUDGEMENT

(1.) BY means of the present writ petition, the petitioner has approached this Court for issuing a writ of certiorari quashing the order of discharge dated 16.9.1995 under Rule 13(3)(v) of the Army Rules.

(2.) THE fact arising out of the present writ petition is that the petitioner joined the Indian Army as Sipahi on 22.6.1984 and after completion of 11 years, two months and two days, has been discharged from service on 16.9.1995. The petitioner's case is that petitioner has got a clean service record and has participated in the operation of Sri Lanka and he is a disciplined soldier and, therefore, the order of discharge under the aforesaid Rule is illegal and is liable to be set aside. The case of the petitioner is that the petitioner was given only five days leave to attend his seriously ill wife from Pathankot to Fatehpur which was insufficient and a telegram was sent by the petitioner for its extension and no reply was given by the authorities and as such the respondents have taken the aforesaid days as absent without leave and for the aforesaid act, the petitioner was given a punishment of 42 days RI in the military guard room from where he was released. While the petitioner was inside the detention cell, he was asked whether he wished to continue on service or not and on his affirmation, an application was taken from the petitioner inside the cell for continuing in service on 8.8.1995 in Pathankot and suddenly, the petitioner was discharged from service. The punishment awarded to the petitioner who has rendered such a long service for more than 11 years, is having the responsibility of the family and is entitled to complete 15 years of service for the purposes of pension. It has also been stated that as required under the Army Rule 13 (iii)(iv), as the requirement of the aforesaid rule has not been completed which is mandatory in nature as on show cause notice was given to the petitioner before passing the order of discharge, therefore, the order of discharge against the petitioner is unjust, unreasonable and against the mandatory provision of law. The further case of the petitioner is that if there was something against the petitioner, the petitioner could have been fried by the Court Martial without observing the said procedure, no order of discharge can be passed.

(3.) IT has also been stated that the petitioner was provided opportunities by the unit concerned to improve himself but the petitioner had shown utter disregard to the military discipline and failed to improve himself and, as such, the petitioner was discharged finally from the term service on 17th September, 1995 under Rule 13(iii)(v) of the Army Rules before completion of his terms of engagements being undesirable in accordance with the Army Head Quarters letter No. A/13210/159/ RG -PS2(C), dated 28.12.1988. Since the discharge of the petitioner was duly sanctioned under the provision of the Army Rules, being an unreasonable soldier, he is not eligible for reinstatement into Army service. It has also been specifically denied by the respondents that no representation or application was received from the petitioner as submitted by the petitioner.