1
IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH,
JAIPUR
:ORDER :
APPLICANT:
Bharatsingh Ex Rfn No.2874629 Aged about 44
Years Son of late Shri Gokul Singh Resident of
VPO- Tatera via Ajitgarh District Sikar
VERSUS
NON-APPLICANTS :
1. The Union of India through Secretary to the
Govt., Ministry of Defence, South Block, New
Delhi
2. The Principal Controller of Defence Accounts
(Pension), Allahabad (U.P.).
3. The Commandant Rajputana Rifles Regimental
Centre cum Officer Incharge, Recods, the
Rajputana Rifles, Delhi Cantt. C/o 56 APO
4. The Commanding Officer, 19 Rajputana Rifles
C/o 56 APO
5. Col. M. Ramkrishna Ex-C.O., 19 Rajputana
Rifles through D.G. Infantry, Army HQ, DHQ,
PO New-Delhi. 2
TRANSFERRED APPLICATION NO.40 OF 2009 In the matter of S.B. Civil Writ Petition No. 3702 of 2006, transferred to this Tribunal Vide order dated 10.11.2009.
:::
DATE OF ORDER FEBRUARY 14,2011 :::
PRESENT
HON’BLE MR. JUSTICE BHANWAROO KHAN [J] HON’BLE LT GEN SUSHEEL GUPTA [A]
Mr. R.S. Bhadauria for the applicant. Mr. Kunal Rawat assisted by Col Veerendra Mohan, OIC (Legal) for the non-applicants.
BY THE TRIBUNAL:(PER BHANWAROO KHAN,J.)
1. The applicant Bharatsingh, who was enrolled in the Indian Army on 10.8.1979 and was dismissed from service with effect from 6.5.1997, initially filed a writ petition before the Rajasthan High Court Bench at
Jaipur, for setting aside the order dismissing him from service with effect from 6.5.1997, for his reinstatement back in service and further for grant of disability pension, which stood transferred to this
Tribunal vide order dated 10 th November, 2009. 3
2. The brief facts leading to this application are: that the applicant joined the Indian Army on
10.8.1979. Since the applicant was a habitual offender, proceedings were initiated for discharging him from service as his services were no longer required in the interest of the organization. He was served with a show cause notice on 25.9.1993 after complying with the relevant provisions of law and after obtaining reply from him, his discharge from service was sanctioned on 2 nd October, 1993 under Army Rules 13(3)III(v).
After sanction of his discharge from service, the applicant was to be sent to his home but he was sent to Rajputana Rifles Regimental Centre on 21 st October,
1993 alongwith complete discharge and medical papers to undergo the Release Medical Board as the applicant was in low medical category. The Rajputana Rifles
Regimental Centre was asked to hold the Release
Medical Board of the applicant but however, the applicant went away without leave and reported back to his Unit after the lapse of almost two and half years.
The then Commanding Officer turned down the request for his reinstatement and instead, a show cause notice was again served upon the applicant and after 4 following the due procedure, the applicant was dismissed from service. Hence this application.
3. The non-applicants filed a detailed reply to the application. There is no dispute regarding factual aspects of the case. However, it was submitted that during discharge process, the applicant remained absent illegally, as such, his name was struck off from the strength of the army. The applicant had rendered
14 years 6 months and 11 days of service prior to his dismissal. Since the applicant had earned five red ink entries and he reported to the Commanding Officer after the lapse of two and half years, the Brigade
Commander refused to reinstate him back in service as the applicant had already been dismissed from service on the basis of his desertion. According to the non- applicants, though prior to dismissal, proceedings under Army Rule 13(3)III (v) were initiated for discharging the applicant from service and even the discharge of the applicant was also sanctioned but his discharge process could not be completed, hence the applicant was dismissed from service on the ground of desertion and thus, his claim for reinstatement in service, for grant of disability pension and for other 5 reliefs cannot be sustained, hence this application deserves to be dismissed.
4. We have heard Mr. R.S.Bhadauria, the learned counsel for the applicant and Mr. Kunal Rawat, the learned counsel for the non-applicants and have carefully gone through the record of the case.
5. There is no dispute about the fact that initially when proceedings were initiated against the applicant for his being undesirable in service, a show cause notice was issued to him on 25.9.1993 on the basis of incurring five red ink entries and after obtaining reply from him, the applicant was proposed to be discharged from service and ultimately, his discharge was sanctioned by the Brigade Commander on 2 nd October,
1993. Thus, it is clear that discharge proceeding were completed and it was decided by the competent authority to discharge the applicant from service on the basis of incurring five red ink entries and considering him as undesirable in service and he is no longer required in service. The rest of the formalities for discharging the applicant from service were to be completed after the holding of the Release Medical 6
Board. The applicant was sent from his Unit to
Rajputana Rifle Regimental Centre where he remained for a pretty long time but when his Release Medical
Board could not be held, he went away from Rajputana
Rifle Regimental Centre. Once the discharge was sanctioned in favour of the applicant and the applicant was sent for Release Medical Board, then it cannot be said that the discharge proceedings were not completed and it were not communicated to the applicant. In this view of the matter, the argument of the learned counsel for the non-applicants that since the discharge proceedings were not completed and even it were never conveyed to the applicant, has no substance because after sanctioning the discharge the applicant was asked to go to Rajputana Rifle
Regimental Centre to appear before the Release
Medical Board. The applicant reported to Rajputana
Rifle Regimental Centre and remained there for a pretty long time but when his Release Medical Board could not be held, he went away. The Release Medical
Board is always held in the interest of an individual at the time of his discharge from service and if it is not conducted because of any reason, it cannot be presumed that in all probabilities, the discharge was 7 not complete. Since the applicant was sent to
Rajputana Rifles Regimental Centre for appearing before the Release Medical Board alongwith his discharge order, it cannot be said that discharge proceedings were not completed and discharge order was not conveyed to the applicant. When the discharge proceedings were completed and the applicant was asked to appear before the Release
Medical Board, though he remained on the strength of the army because of not holding of Release Medical
Board, it cannot be presumed that the applicant was not discharged from service as per order dated 2 nd
October, 1993. Thus, on account of sanctioning of discharge of the applicant from service, discharge of the applicant cannot be revoked on any other ground.
It is not borne out from the record that discharge of the applicant was ever revoked, hence the discharge of the applicant attained its finality. As a matter of the fact, the discharge of the applicant was to take effect after holding of Release Medical Board. The law is well settled that Release Medical Board is always held in the interest of the individual concerned and if the individual concerned does not want to appear before the Release Medical Board, he cannot be forced to 8 appear before the Release Medical Board. In this view of the matter, when the applicant left the Rajputana
Rifles Regimental Centre after remaining there for a pretty long time as his Release Medical Board was not held, he is not at any fault. There is no plausible explanation from the side of the non-applicants as to why the Release Medical Board was not held even after sanctioning of discharge of the applicant from service and despite his remaining at Rajputana Rifles
Regimental Centre for a pretty long time for that purpose. As stated above, the discharge of the applicant from service was never revoked, as such, the order dismissing the applicant from service cannot be sustained.
6. From the facts and circumstances of the case stated herein above, it is apparent that the applicant was enrolled in the Indian Army on 10.8.1979 and his discharge was sanctioned on 2.10.1993. Thus, from the date of his enrolment till the date of sanction of his discharge, he had served the Indian Army for 14 years
6 months and 11 days. The applicant had remained in
Rajputana Rifles Regimental Centre from 21.10.1993 to 12.2.1994 and during this 3 months and 25 days, 9 his Release Medical Board could not be held. If this period of 3 months and 5 days service is included in the period of service rendered by him from the date of his enrolment till the date of sanction of his discharge from service i.e. 2.10.1993, the total period comes to
14 years 10 months and 6 days, out of which, if the period of absence from service i.e. 3 months and 11 days is reduced, then the total qualifying service comes to 14 years 6 months and 25 days of service.
The law is well settled that short fall in qualifying service can be condoned to the extent of one year. In the facts and circumstances of this case, we consider it just and proper to condone of whatever short fall in the qualifying service of the applicant to the extent of one year.
7. Resultantly, this application is allowed and the order dated 6.5.1997 dismissing the applicant from service is set aside. The non-applicants are directed to grant service pension to the applicant with effect from
12.2.1994, the day when he left the Rajputana Rifles
Regimental Centre considering his qualifying service to be of 15 years. Since no Release Medical Board of the applicant was held, the applicant is not entitled to get 10 any disability pension. The arrears of the service pension be paid to the applicant with in a period of three months from the date of this order with interest at the rate of 6% per annum.
8. In the facts and circumstances of this case, the parties are left to bear their own costs of this application.
[LT GEN SUSHEEL GUPTA]A. [ BHANWAROO KHAN],J.