UNION OF INDIA Vs. SURESH KUMAR

JUDGEMENT

(1.) Letters Patent Appeal, on hand, is directed against judgment dated 08.10.2010 whereby learned Single Judge has allowed the respondent/writ petitioner's petition, set aside his discharge ordered vide order dated 09.11.2007 and directed appellant/respondent to reinstate him with all consequential benefits. The background facts need to be noticed, in the first place.

(2.) Respondent/writ petitioner was enrolled in Army on 22.11.1995. He was initially posted in 8th Bn. J&K Light Infantry Regiment and thereafter deputed to 24th Rashtriya Rifles where he served for two years and participated in anti-insurgency operations in terrorist infested areas. He, after a brief interval was again sent on extra regimental duty to 42 Rashtriya Rifles. He resented his second posting to Rashtriya Rifles, because of stress he experienced while posted at 24 Rahstriya Rifles and combating militancy. He after his second deputation overstayed on leave. Though he reported back to his regiment - 8th Bn JAKLI, yet a few years after resumption of duty he was discharged from service vide order dated 09.11.2007. The reason given in the discharge order was that respondent/writ petitioner's service, was no more required. His representation against the discharge order did not yield any result, constraining him to invoke writ jurisdiction of this Court through writ petition being SWP no. 867/2008.

(3.) The case set up before the writ Court was that the discharge order impugned in the petition had been made in flagrant violation of principle of natural justice; that it was made in disregard of the Army Act and Rules made thereunder and that he was not given a fair and reasonable opportunity to explain that his absence from duty was not willful or deliberate. It was insisted that his overstay on leave and absence from duty was attributable to the mental stress he suffered because of his active participation in anti- insurgency operations.