CWP No.16380/2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.16380/2007 Date of Decision: 11.8.2008. Pargat Singh ............. Petitioner Versus Union of India and others. ..............Respondents. CORAM:HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE JASWANT SINGH Present:- Sh.Rajiv Anand, Advocate for the petitioner. Sh.Rajiv Sharma,Central Govt.Standing Counsel for respondents. ***** JASWANT SINGH, J This writ petition has been filed by the petitioner for quashing of his discharge from the Army vide order dated 31.10.2006 (Annexure P-4), whereby inspite of withdrawal of his request for discharge vide application dated 7.10.2006 before the effective date of discharge i.e. 31.10.2006, he was relieved from Army service. Briefly the facts are that the petitioner was enrolled in the Army as a Sepoy on 9.7.2001. It is stated that on 21.8.2004 while on Santry Duty/ Field Active Duty petitioner slipped and injured his right knee. He was diagnosed as suffering from “Traumatic Synovitis Rt.Knee Recurrent”. He was treated and despite his being in medical category of SHAPE 1, he was facing difficulty in coping with his duties due to injury in his right knee. Therefore, he made an application dated 4.4.2006 (Annexure P-1) for voluntary discharge from service. The petitioner, however, stated the reasons for his discharge as due to domestic problems as he was otherwise CWP No.16380/2007 2 declared to be in medical category as SHAPE 1. His case was recommended for discharge by his Commanding Officer and he was ordered to be discharged from Army on 31.10.2006 (a.n.) It is further stated that the petitioner, on realising that he will not be entitled to any service element of pension,made an application dated 7.10.2006 through proper channel for withdrawal of his request for discharge to be made effective w.e.f. 31.10.2006. His request for continuance in Army service was, however, not acceded to and he was relieved from his duty w.e.f. 31.10.2006. Thereafter, he made a representation dated 13.4.2007 (Annexure P-5) before respondent no.2 for redressal of his grievance but the same evoked no response. Hence the present writ petition. Respondents, upon notice, filed written statement wherein it has been stated that the petitioner was discharged at his own request and he signed all necessary documents for his terminal benefits so that he could draw the same before he proceeded on discharge to his home for availing the opportunity of six months of discharge procedure. It was further stated that his request dated 7.10.2006 was not found received in the office and further it was not possible at that stage to cancel his discharge. We have heard learned counsel for the parties. Counsel for the petitioner has contended that petitioner was entitled to, as per settled principles of law, withdraw his request for voluntary discharge before the effective date and having done so vide his application dated 7.10.2006 (Annexure P-2) before his Commanding Officer/through proper channel, he had discharged his onus. In support of his submission he has placed reliance upon Balram Gupta v. Union of India and another, 1987 (Supp) Supreme Court Cases,228; J.N.Srivastava v. CWP No.16380/2007 3 Union of India and another (1998)9 Supreme Court Cases 55; Power Finance Corporation Ltd. v. Parmod Kumar Bhatia (1997) 4 Supreme Court Cases 280 and Shambhu Murari Singh v. Project and Development India Ltd. 2002(2) RSJ 551. He further contends that non-consideration of said request for withdrawal by the competent authority vitiates his discharge from Army service. On the other hand learned counsel for the respondents has submitted that the discharge once sanctioned could not be withdrawn at a belated stage and therefore, action of the respondents in relieving the petitioner w.e.f. 31.10.2006 is legal and valid. Relevant Rule 11 of the Army Rules,1954 which is relevant for the adjudication of the present dispute between the parties is reproduced as under:- 11. Discharge not to be delayed.- (1) Every person enrolled under the Act shall, as soon as he becomes entitled under the conditions of his enrolment to be discharged, be so discharged with all convenient speed: Provided that no person shall be entitled to such discharge, if the Central Government has, by notification suspended the said entitlement to discharge for the whole or a part of the regular Army. (2) The discharge of a person, validly sanctioned by a competent authority,may, with the consent of the discharged person, be cancelled by any CWP No.16380/2007 4 authority superior to the authority who sanctioned the discharge either without any conditions or subject to such conditions as such discharged person accepts.” A reading of sub-Rule (2) makes it clear that once discharge has been validly sanctioned, the said discharge, on the request of the discharged person can be cancelled by the superior authority without or with such conditions as be acceptable to a discharged person, meaning thereby that even after discharge, such an employee can be reinstated on the request/consent of the discharged employee. The relevant instruction NO.15/2003 (Annexure P-7) further provides that Formation Commander shall be superior authority as defined under Rule 11(2) for cancellation of such discharge. In the present case, we find that the petitioner had made an application, even prior to his discharge, to his Commanding Officer for continuation in service on the ground that without any entitlement to pension his family shall be starved. Thereafter, on 10.10.2006 a letter had been addressed to competent authority with copies to officers concerned stating that the petitioner was willing to remain in service and further requesting for an early necessary action in view of the discharge procedure being in progress. The respondents having specifically not denied such request of petitioner at Annexure P-2 and its receipt reflected in Annexure P-3, having further not shown any consideration by the competent authority on such request but a mere line in the written statement that such request for withdrawal is not available in the office, leads us to draw an adverse inference to the effect that the request for withdrawal of voluntary discharge was made and was not decided by the competent authority before CWP No.16380/2007 5 his discharge. Thus, it is evident that the petitioner had in fact, made a request for withdrawal of his voluntary discharge before the effective date for consideration by the competent authority upon which no decision was taken. The legal position on this aspect is no longer res integra. In the cited cases i.e. Balram Gupta's, J.N.Srivastava's, Power Finance Corporation Ltd.'s and Shambhu Murari Singh's case (supra), referred to above, it has been consistently held that even if the voluntary retirement notice moved by an employee gets accepted by the authorities within the time fixed before the date of retirement is reached, the employee has right/ locus standi to withdraw the proposal for voluntary retirement. A learned single Judge of this Court in Ex.Maj. Dipinder Singh v. Union of India and another, 2004(1) RSJ 143, after considering all the relevant rules and regulations of the Army in extenso, in the concluding para 25 of his judgment, has held as under:- “Therefore, keeping in view of the above position, it is evident that the petitioner could withdraw his request for premature retirement after its approval or acceptance and it was for the Central Government to consider the same in accordance with its discretion. Therefore, question no.1 is answered in affirmative that an army officer can withdraw his request for premature retirement after its approval or acceptance but before it became effective.” Learned counsel for the petitioner at the time of arguments stated CWP No.16380/2007 6 that if on his reinstatement petitioner is granted continuity of service and notional benefits to fix his pay etc., then he is willing to forego all actual monetary benefits for the period he has remained out of service. By applying the ratio of the aforementioned decisions and the facts of the present case, we find that the action of the respondents, in not considering his request for continuance in service and withdrawal of his earlier request for premature retirement, to be illegal. Accordingly, the writ petition is allowed and the order dated 31.10.2006 (Annexure P/4) is quashed. Further, the respondents are directed to reinstate the petitioner with effect from the date he was relieved from the Army i.e. 31.10.2006 with continuity of service and notional fixation of his pay with all increments, but without payment of any monetary benefits for the period he has remained out of service. It is further directed that the petitioner be reinstated forthwith. (Jaswant Singh) Judge 11.8.2008 (Jasbir Singh) joshi Judge