IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B. Civil Writ Petition No.2723/02 Subhash Chandra vs. The Union of India & Ors. Date of Order : : 18th December, 2008 HON’BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.S. Bhadauria for petitioner. Shri Sanjay Pareek for respondents. REPORTABLE This writ petition has been filed by petitioner Subhash Chandra challenging the order of his discharge from the territorial army and with the prayer that the order of discharge from service be quashed and set aside and respondents be directed to take the petitioner on duty. Factual matrix of the case is that the petitioner after his recruitment as grenadier / sepoy in the Territorial Army (for short-`T.A.') was enrolled with effect from 1.1.1989. He gained two promotions in the rank of Lancenaik and Naik and was granted third promotion as Havildar in B-Company of 123 Inf. Bn. 1 (TA) Gdr. This unit was embodied under Rule 33 of the Territorial Army Rules, 1948 for Missa Camp (Operational Area) of Distt. Nogaon (Assam) in April, 2001. The petitioner was also embodied in the said operation in May, 2001 with regular army. The said B-Company was disembodied in mid of the month of December, 2001. Petitioner was granted leave-cum- disembodiment certificate by the Company Commander with effect from 15.12.2001 to 20.1.2002. Another order on the same day was passed by the Commanding Officer Major T.A. Mohlah directing the petitioner for embodiment for annual training camp on 1.2.2002 at Rear Headquarters of the Unit at Jaipur. According to the petitioner, he remained under disembodiment only for 11 days from 21.1.2000 to 31.1.2002 after he had duly availed of sanction of leave for 37 days. It is contended that the annual training camp had to be attended voluntarily. If an enrolled person / officer of T.A. is not able to attend such camp, he is free to attend the next camp. When the 2 petitioner went to attend the annual training camp at Rear Headquarters, Jaipur on 1.2.2002, he was told by the Officer Commanding that the unit had already been embodied in the month of December, 2001 with the regular army and the petitioner had to join the unit in the month of December, 2001. Telegram was sent at the residential address of the petitioner. When he did not join, his services were terminated. The petitioner was directed to meet the Commanding Officer of the Unit which was embodied with regular army at Jodhpur. Petitioner went to village Sulkhania Chhota and enquired from the Village Post Office as to whether any telegram in his name or in the name of any of his family members, was ever received. The Post Master gave a certificate that from December, 2001 till 15.2.2002, no telegram was received in the name of the petitioner. The petitioner then met the Rear O.C. Shri Prabhu Singh Rathore of the Unit at Jaipur 18.3.2002 and submitted the said certificate to him to show that he never 3 received such telegram. He requested that he may be allowed to join his duties at Jaipur, but he was not allowed. Petitioner then presented himself before the Commanding Officer of the Unit on 20.3.2002 at Jodhpur and narrated the whole problem. The Commanding Officer however refused to take him on duty and informed him orally that his services have been terminated. Shri R.S. Bhadauria, learned counsel for the petitioner has argued that since petitioner did not receive the intimation timely, he could not join and that this was not a fault on his part. His services were terminated arbitrarily. Petitioner had rendered services in the Territorial Army for more than 13 years. It was argued that similarly situated persons who joined the annual training camp late were allowed to join the duties at the sweet will of the officers of the T.A. Reference was made to the cases of Grenadiers Madan Singh and Maga Ram. Respondents have thus subjected the petitioner to a discriminatory treatment. 4 Section 106 of the Territorial Army Act, 1948 was violated because the procedure contained therein for declaring a person retired has not been followed. The respondents have failed to appreciate that Post Master, Gandhi Nagar, Jammu Tawi informed by letter dated 22.4.2002 that telegram of the petitioner was presented to telegram office Rajgarh, Churu, Rajasthan. However, due to rush of `Recall Messages’ in the month of December and January, the messages got delayed in sending for which the dispatcher rider of office of the respondents was informed. It was argued that this confirmation provided by the Post Master at Jammu and the Post Master of Village Post Sulkhania Chhota which is the native place of the petitioner and the certificate about non receipt of telegram clearly proves bona fides of the petitioner. Learned counsel argued that even for the purpose of discharge Sections 14 and 15 of the Territorial Army Act, 1948 are required to be complied with. They were however not 5 complied with. It was therefore prayed that the writ petition be allowed in the terms prayed for. Shri Sanjay Pareek, learned counsel appearing for The respondent-Union of India argued that the B-Company deployed at MISSA (Assam) under Headquarters 4 Corps, was disembodied with effect from 15.12.2001. All troops were sent to the disembodiment / leave cum disembodiment depending on the case. The petitioner also proceeded on leave cum disembodiment from the permanent location of the unit at Jaipur. All members of the company were handed over call up telegram for ATC with direction to report at Rear location at Jaipur on 1.2.2002. This was because the unit received a signal on 23.12.2001 from Indian Army (TA Directorate) to embody all those who are disembodied under Rule 33 of the Territorial Army Rules, 1964. The unit issued call up express telegram to all the concerned including the petitioner on 24.12.2001. It is contended that as per Rule 14(b) (iii) of the TA Rules, persons who do not 6 report for embodiment under Rule 33 are liable to be discharged forthwith. However, to give the benefit of time to individuals, the unit waited for complete one month for troops to get embodied. The petitioner along with 6 other ranks was discharged on 23.1.2002 being untraceable under Rule 14(b)(iii) of the TA Rule. It was denied that the petitioner reported to Rear location of the Unit at Jaipur on 1.2.2002. The petitioner instead reported on 4.2.2002 to Sub Maj PS Rathore but was rightly told that he had already been discharged being untraceable. Petitioner then approached Batallion Headquarters location for an interview with the Commanding Officer on 20.3.2002, which he was granted. He was required to explain that if he had no clue of the unit embodiment under Rule 33 of the TA Rules, he should have at least come on 1.2.2002, to which he stated that his father was unwell so he came on 4.2.2002. Refuting allegation of discrimination, Shri Sanjay Pareek, learned counsel for the respondents 7 contended that Grenadier Maga Ram reported Rear location of unit at Jaipur for Annual Training Camp on 1.2.2002 because he did not receive the call up telegram and letter, therefore, he could not report in time. Keeping his sincerity in mind and the conduct that he reported as required on 1.2.2002 for Annual Training Camp, he was given the benefit of doubt and accepted in the unit. Regarding Grenadier Madan Singh, it is submitted that he reported by due date on 1.2.2002 and took permission in writing from the Commanding Officer to be given disembodiment due to extreme compassionate reasons. The permission was granted and he thereafter re-reported on due date. It is contended that not only the petitioner but six other ranks were also discharged along with him being untraceable under Rule 14(b)(iii) of T.A. Rules on 23.1.2002. The unit wrote a letter to the Post Master, Jammu Tawi (J&K) with a copy to Post Master, Post Office Sulkhania Chhota, Tehsil Rajgarh, Distt. Churu and Head Post Master, Churu 8 on 11.4.2002 to enquire about the non receipt of telegram by the petitioner. The Junior Telecom Officer, T.O., Gandhinagar, Jammu Tawi (J&K) by his letter dated 22.4.2002 replied that the telegram was dispatched to the petitioner vide their LN 125. The Unit also received a letter from Post Office Sulkhania Chhota, Churu vide letter stating that they have not received any telegram in respect of petitioner. The respondents contended that this letter could not be relied as it does not contain any number, name and designation of the Post Master. It is alleged that the letter appears to have been managed by the petitioner. I have given my anxious consideration to the arguments aforesaid and perused the material on record. What is evident from the arguments aforementioned and the pleadings of the parties is that the petitioner was not the only one who did not report on time as originally fixed. When the unit was disembodied on 15.12.2001 and all troops were sent to the disembodiment / leave 9 cum disembodiment, petitioner was also sent for leave / disembodiment at the location of the unit at Jaipur. At that time, the petitioner and other two persons were directed for embodiment for annual training camp on 1.2.2002 at Rear Headquarters of the Unit at Jaipur. The respondents have not denied that it was not the petitioner alone, but Grenadiers Madan Singh and Maga Ram also did not join at the appointed time. Their contention however is that the unit issued call up express telegrams to all the troops including the petitioner on 24.12.2001 and copies of call up telegrams were also sent by post. They were required to report to rear location at Jaipur. The petitioner reported at the Rear location on 4.2.2002 for annual training camp. Since Grenadier Maga Ram showed sincerity in having reported to Rear location on 1.2.2002 for the Annual Training Camp, he was given the benefit of doubt and accepted in the unit. For Grenadier Madan Singh, it has been stated that he also reported on due date i.e. 10 1.2.2002 and on reporting back, he took permission in writing from the Commanding Officer to be given disembodiment due to extreme compassionate reasons. He was granted permission and then he re- reported by due date. In the case of the petitioner, however, the stand of the respondents is that he was discharged along with six other ranks being untraceable under Rule 14(b)(iii) of the TA Rules. The respondents have not made it clear whether those six other ranks include Grenadier Madan Singh and Grenadier Maga Ram. It is not the case of the respondents that Grenadier Madan Singh and Grenadier Maga Ram was also amongst those six other persons who were discharged on 23.1.2002. There is no reason why, if they were not discharged summarily being untraceable by recourse to Rule 14(b) (iii) of the TA Rules, similar treatment could not have been accorded to the petitioner? Their decision to extend the benefit of doubt to Grenadier Madan Singh and Maga Ram on the spacious plea that 11 they having reported to Rear location at the appointed time showed sincerity of mind, could as well be applied to the case of the petitioner to await his reporting till 1.2.2002. Why the action of the discharge in the case of the petitioner only was hastened, is not clear? Moreover, in the case of these two persons the respondents also have not disputed that in the case of Madan Singh and Maga Ram also, they were shown this leniency because they did not receive call up telegrams sent on 24.12.2001. The Post Master, Gandhi Nagar, Jammu Tawi in response to the enquiries made by the respondents has categorically informed them that telegram of the petitioner was also transmitted to telegram office Rajgrah, Churu. However, due to rush of `Recall Messages’ in the month of December and January, the messages got delayed in sending for which the dispatcher rider of office of the respondent was informed. The contents of this letter dated 22.4.2002 are worth mentioning: 12 “Regarding your booking of telegram for Hav. Subhash Chander R/o Rajgarh, Churu (Raj) & N.K. Pokhpal Singh, R/o Kaingang Farrukhabad (UP), it is intimated that both the messages stands transmitted to their destination. However, due to heavy rush of `recall Messages' in the month of December & January the messages got delayed in sending for which the dispatcher (DR) of your office had been pre informed. The message of Hav. Subodh Chander have been sent vide our LN 125 & message fv NK Pokhpal Singh have been sent vide LN 323. Further action may be taken at your level.” Not only this, the Post Master of Village Post Office, Sulkhania Chhota also in his letter addressed to the respondent has clearly stated that no telegram was ever received in their office from 1.12.2001 till 26.4.2002 to be delivered to the petitioner. The respondents are seeking to underplay that part of the letter of the Post Office Jammu Tawi which states that due to heavy rush in the month of December, 02 and January, 02, the messages got delayed in sending, for which the dispatcher of 13 their office was pre-informed. What is still more surprising is that the respondents are seeking to completely disbelieve the letter of the Post Master Village Sulkhania Chhota in which he categorically stated that no such telegram in the name of the petitioner was ever received in their post office. When the telegram was never received in the Post Office Village Sulkhania Chhota, the reason for which is evidently clear from the letter of the Post Master, Gandhi Nagar, Jammu Tawi, there was no question of such telegram being delivered to the petitioner. The petitioner is asserting that he duly reported to the Commanding Officer on 1.2.2002, but he was not allowed to join saying that his services have already been dispensed with. If such explanation is accepted by the respondents to extent of benefit of doubt to two of his fellow Grenadiers, who like the petitioner also did not receive telegram and therefore reported on 1.2.2002, why was joining of the petitioner on 1.2.2002 accepted, is not 14 explained? When he asserts that he reported to join on 1.2.2002 and was not allowed joining because he was told that he stood already discharged, his version inspires confidence because it is corroborated by the respondents themselves that the petitioner being untraceable, had actually been discharged on 23.1.2002 under Rule 14(b)(iii) of the T.A. Rules and when he had been discharged, the refusal of the Subedar Major Prabhu Singh Rathore to allow him to join on 1.2.2002, can clearly be explained. The petitioner is therefore justified in saying that he was not allowed joining on 1.2.2002 and was advised by the Subedar Major Prabhu Singh Rathore that he should meet the Commanding Officer of the Unit, which was embodied with regular army at Jodhpur. The petitioner then coming to know about the reason of his discharge proceeded to his native place and collected a certificate from the Post Office Sulkhania Chhota that no telegram in the name of petitioner was received in the 15 Post Office, which the petitioner has produced on record as Annexure-3. In the facts of the case, therefore the discharge of the petitioner from the territorial army by respondents in the summary manner by recourse to Rule 14(b) (iii) on their satisfaction that his services are no longer required, was wholly arbitrary and illegal. Such an order of discharge by invoking Rule 14(b)(iii) and 15(1A) treating the petitioner to be untraceable person, is wholly unsustainable in law because as required by Rule 15(1A), no show cause notice so as to provide him an opportunity of hearing was given. Rule 14 (b) provides that any enrolled person may be discharged on any of the grounds provided therein and sub-clause (iii) thereof further provides that such discharge can be made if services are no longer required. It is actually Rule 14 (b)(iii), which has been invoked by the respondents in the present case. Rule 15 (1A) of the Territorial Army Rules provides for the authorities competent to 16 authorise the discharge and in the table given under the sub-rule, for discharge made with reference to Rule 14(b)(ii) under the column of competent authority, it is provided that at any time during first two years of training if an enrolled person is unlikely to become an efficient soldier, or is untraceable, or does not report for training for a period of one year, or in the case of an unattached recruit at his own request, the Commanding Officer, in all other cases, the sub Area Comdr or TA Gp Commander, shall be the competent authority. In fact, it is Rule 14(b)(ii) which should have been invoked in the case of an enrolled person, if within first two years of training as per satisfaction of the competent authority he is unlikely to become an efficient soldier or he is untraceable or he does not report for training for a period of one year or in the case of an unattached recruit, at his own request. Since the case of the petitioner was not dealt with by the respondents under Rule 14(b)(ii) 17 and that was because the petitioner prior to his discharge had rendered 13 years of service, therefore, his case could not be covered under that Rule. In order to overcome this legal hurdle, the respondents devised a convenient method of invoking Rule 14(b)(iii) and they discharged the petitioner on the plea that his services are no longer required. But even if they wanted to invoke Rule 14 (b)(iii), they were still required to serve upon the petitioner a notice and provide him opportunity of hearing to show cause against his proposed discharge. This is so provided by Rule 15 (1A) which reads as under: Rule 15(1A) Where a discharge is authorised under the provisions of clause (ii) and (iii) of sub-rule (b) of rule 14, the competent authority before authorising the discharge shall, if the circumstances of the case permit, give the enrolled person an opportunity to show cause against the discharge, unless such discharge is at the request of the enrolled person. 18 The aforesaid rule clearly provides that where a discharge is authorised under the provisions of clause (ii) and (iii) of sub-rule (b) of rule 14, the competent authority before authorising discharge shall, if the circumstances of the case permit, give the enrolled person an opportunity to show cause against the discharge, unless such discharge is at the request of the enrolled person. There are thus two exceptions to the requirement of opportunity of hearing as per this Rule; either when the discharge is made at the request of the enrolled person himself or if the circumstances of the case do not permit for giving such notice before discharge. No such extraordinary circumstances have been shown, nor was there any such emergency which required the respondents to immediately discharge the petitioner without giving him an opportunity to show cause against the discharge. Once a person subject to Territorial Army Act had rendered services to the respondents at such a length of time, directing his 19 discharge in the summary manner, in which the respondents have discharged the petitioner, was wholly arbitrary and capricious exercise of power. In fact, nothing has been shown by the respondents as to what efforts were made by them to provide opportunity to the petitioner to show cause against his proposed discharge. The order of discharge passed in the case of the petitioner therefore having been passed in violation of Rule 15(1A), supra is declared to be arbitrary and illegal. Here in the present case, the petitioner was enrolled with Territorial Army on 1.1.1989 and he was discharged on 23.1.2002 and by that time he had already completed 13 years of service. Implication of the satisfaction arrived at by the respondents that the petitioners was no longer traceable, would be that petitioner was treated by the respondents as absent without leave. As noticed above, Rule 14(b)(ii) for such an eventuality could be invoked only if a person subjected to Territorial Army Act is untraceable within first two years of 20 training, which is a summary procedure. In all other cases, the procedure provided for by Section 106 of the Army Act, 1950, which by virtue of Section 9 of the Territorial Army Act, 1948, would be applicable to every enrolld person when called out or embodied or attached to regular army, then the procedure for proceeding against such person issuing required declaration by mechanism of holding Court of enquiry and the consequences of his non joining the duties thereafter as enumerated in sub- section (2) of Section 106, which is that such person shall be deemed to be a deserter, shall have to be followed. No such procedure in the present case was followed by the respondents. In view of the discussion made above, the order of discharge of the petitioner is quashed and set aside being unreasonable, arbitrary and illegal and violative of Rule 14(1)(ii) and Rule 15 (1A) of the T.A. Rules and also violative of Article 14 and 16 of the Constitution of India. Petitioner shall be entitled to 21 reinstatement within all consequential benefits. The writ petition is allowed in the terms aforesaid within no order as to costs. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (Mohammad Rafiq),J. Rs/- 22