ANIL NANASAHEB PAWAR Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this petition under Articles 226/227 of the Constitution of India, the petitioner has prayed for quashing the order of dismissal passed against him on 15th June, 1989. He has also prayed that after quashing the order of dismissal it be declared that the petitioner is entitled for the pensionary benefits. In the alternative he has prayed that even if the order of dismissal is upheld nonetheless it be decided that he is entitled to the pensionary benefits.

(2.) THE facts leading to the passing of the order of dismissal may be briefly noticed. The petitioner joined the Indian Army as a Sepoy on 14-1-1975. He was promoted to the post of N/naik in 1986 and further promoted as Naik in 1987-88 whereupon he has designated as D. M. T. under drivers trade. He availed annual sanctioned leave to visit his parental home from 19th November, 1988 to 12th January, 1989. Thereafter he did not join duty till 30th April, 1989. Thus he was absent from duty without any sanctioned leave for a period of 108 days. The petitioner has given a long winded story as to why he did not report for duty after the expiry of his leave. Upon his return to duty, an enquiry was conducted and a Court Martial was appointed. In the Court Martial he made a statement to the effect that he set out on the return journey after the leave by bus on 9th January, 1989. The bus had mechanical failure. Thus he reached Bombay V. T. Railway Station at 21. 00 Hrs. on the same evening. Due to his late arrival he missed the train which was to take him to his place of duty. He states that he fell asleep at 10. 30 p. m. When he woke up the next following morning at 5. 00 a. m. he found that his suit case was missing. He approached the Railway Police who advised him to lodge an F. I. R. with the Bombay V. T. Police Station. He thereafter lodged an F. I. R. The next following day his lost suit case had been recovered but the police did not hand over the same as the matter had been referred to the Court of law. Ultimately he was constrained to go home because on 12th January, 1989 the Court hearing had been adjourned to 21st Jan. 1989. At that time instead of leaving for his place of duty he decided rather to visit his home. He also states that he was suffering from pain in the chest and, therefore, doctor had advised him to take rest. Upon reaching his village his parents took him to a private doctor. He was undergoing treatment with his private doctor till he left home for resuming his duty. During this interregnum he attended the Court on 21st January, 2nd February and 17th February, 1989. It was on 17th February 1989 that the suit case was ultimately handed back to him. Curiously in the statement it is stated as follows. " Thereafter many times I made up my mind to rejoin but did not feel like leaving home. Later my parents and wife brought me twice to Bombay V. T. Railway Station and bought me ticket also. I had no desire to board the train and used to return home. I do not know why I did so. Finally I left home on 24 April 89 and reached Bombay in the evening. The same evening I boarded a train and rejoined voluntarily on 30 April 89 at 1900 Hrs. I have been a disciplined soldier till now. I do not know why I did this mistake of not reporting to Military Hospital, Poona, Bombay or any other Military Hospital for medical treatment. " on the basis of the fact that he had been absent without sufficient cause he was charge-sheeted under section 39 (b) of the Army Act, 1950. The charge was to the effect that " at Misamari while granted annual leave w. e. f. 10th November 1988 to 12th January, 1989 he failed to rejoin the unit on expiry of the said leave till voluntarily rejoined on 30th April, 1989 at 19. 00 Hrs. " He pleaded guilty to the charge. On the basis of the plea of guilty an order of dismissal was passed on 15th June, 1989. On the very same day he was asked that he may submit a petition against this award to the Competent Authority. He was asked to give his consent as to whether he would like to submit a petition against the punishment awarded on the basis of the summary Court Martial proceedings. On the very same day the petitioner wrote a letter stating therein that he does not wish to submit any petition against the punishment of dismissal from service awarded to him by the Summary Court Martial held on 15th June, 1989. From 15th June, 1989 until 12th October, 1992 the petitioner kept quiet and did not take any action against the impugned order of dismissal. It was on 12th October, 1992 for the first time when he addressed a petition to respondent No. 4. No explanation has been given in the petition as to why it took him three years. Thereafter he sent reminders in November and December, 1992. In August, 1993 he submitted a representation through respondent No. 4 asking them to modify the penalty of dismissal to compulsory retirement. On 13th September, 1993 respondent No. 5 informed the petitioner that his petition dated 12th October, 1992 was rejected by respondent No. 4. Not satisfied, in February, 1994 he sent a mercy petition to respondent No. 2. The said mercy petition also stands rejected by an order dated 17-1-1996 which was communicated to him by a covering letter dated 29th January, 1996.

(3.) THE petitioner had filed the present petition during the pendency of his mercy petition. In the petition the petitioner claims that his absence from duty was innocent and unintentional. He has also stated that the authorities had compelled him to write letter dated 15th June, 1989 wherein he had stated that he would not be filing any petition against the punishment imposed on him. He has also tried to make out a case that the punishment is disproportionate to the misconduct committed. His conduct prior to the order of dismissal was satisfactory. He , therefore, claims that he should have been treated leniently. At best an order of compulsory retirement could have been passed. In any event even if they were to pass an order of dismissal then his pensionary benefits ought not to have been forfeited. A perusal of paragraph 13 of the petition, however, shows that he admits that he has completed only 14 years, 5 months and 2 days till his dismissal on 15th June, 1989. He also admits that he would have been eligible for voluntarily retirement only after completion of 15 years of service i. e. on 13-1-1990. Thus he admits that he was short by six months of service to retire in normal course and to avail pension/gratuity and other benefits. However, due to the dismissal the petitioner did not get any pensionary/retirement benefits at all and in addition he is declared unfit for any Government employment due to penalty of dismissal.