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ARMED FORCES TRIBUNAL, REGIONAL BENCH, CHENNAI

O.A. No. 37 of 2014

Friday, the 22 nd day of August 2014

THE HONOURABLE JUSTICE V. PERIYA KARUPPIAH (MEMBER - JUDICIAL) AND THE HONOURABLE LT GEN K. SURENDRA NATH (MEMBER – ADMINISTRATIVE)

123554-F, ERA-III-Shibu Yohannan S/o M.K. Yohannan Ship Building Centre (Visag) Krishna Gate, Near Naval Dockyard Visakhapatnam, A.P.530014. ...Applicant

By Legal Practitioner: Mr. M.Selvaraj

vs.

1. Chief of Naval Staff Naval Head Quarters Integrated Head Quarters (IHQ) Defence Head Quarters (DHQ) New Delhi-110 011.

2. The Project Director (for G.M.(L.A. & P) Ship Building Centre Krishna Gate, Naval Dockyard Road Visakhapatnam-530 014.

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3. The Flag Officer Commander-in-Chief (for SO (Personnel), Head Quarters , Naval Base Visakhapatnam-530 014.

4. Union of , rep. by its Secretary Ministry of Defence, New Delhi-110011. …Respondents

By Lt Rahul Ahlawat, Asst. JAG Officer, Navy

ORDER

[(Order of the Tribunal made by Hon’ble Justice V. Periya Karuppiah, Member (Judicial)]

1. This is an application filed by the applicant challenging the order passed by the first respondent passed in IHQ MOD No.RP1201CGD, dated 03.12.2013 in rejecting the request for premature discharge on compassionate grounds and to grant discharge of the applicant immediately from his service and to render justice.

2. The factual matrix of the applicant’s case would be as follows:

The applicant was enrolled in the on 23.1.1998 for a period of 15 years. After his basic training in INS Chilka, he was transferred to INS Shivaji for his professional training for a period of 6 months. On such completion, he was sent to INS Subhadra, Mumbai for his sea tenure in the rank of ME II. In the year 2001, he had qualified 3 for Naval Entry Artificer Course and he did the same. As a condition precedent, he signed to serve Navy for a further period of 5 years after the completion of 15 years of his initial engagement. At that time, there was no such problem to his parents since his unmarried sister was at their home and was taking care of his parents. After her marriage in

September 2013, she migrated to her marital home and therefore, the applicant and his parents shifted their residence to Veerapuram,

Tiruvallur District for their livelihood. The applicant’s father is aged about 65 years suffering from Primary Hyper Tension and Polyarthalgia and is undergoing treatment in a private hospital. There is no one to look after him since the applicant’s mother is also equally sick due to

Primary Hyper Tension, Polyarthalgia and Pelvicinflammatory with right hydrosalphinx and Fibroiduterus. Hence the applicant has to look after his parents and there is no other family member to look after them. The applicant’s relatives are living in Kerala. The applicant with no other option in hand, submitted his request for discharge from service on

20.05.2013 on compassionate grounds. After scrutiny, the said application was forwarded by the second respondent to Eastern Naval

Command, Vishakapatnam on 15.07.2013. After studying his case closely, the same was forwarded to Bureau of Sailors on 19.08.2013 for further action. The Bureau of Sailors then sent the relevant papers and its recommendation to the first respondent for consideration but the first 4 respondent had rejected the plea of the applicant and passed the impugned order dated 03.12.2013. The applicant has to travel from his house to his Unit every day for half-an-hour in bus to reach Avadi

Railway Station and there he has to catch a train or a bus which will take one and half an hour to reach the Unit. He has to travel 4 hours to and fro for performing his duty. The applicant has also to take permission every now and then to accompany his parents atleast once in a month.

The nature of applicant’s duty is to sail in the sea in ships for days together unless and until the applicant gets long leave or discharge from service. He cannot look after his parents till their death. The rejection of the claim of the applicant for premature discharge by the first respondent is arbitrary and illegal. It is against Regulation 280 of the

Regulations for the Navy. Therefore, the applicant requests that the respondents may be directed to discharge the applicant on compassionate grounds in a sympathetic manner and thus the application be allowed.

3. The objections raised in the reply statement of the respondents would be as follows:

The applicant has not exhausted his alternative remedy in accordance with Section 23 of the Navy Act 1957 read with Regulation

234 to 239 of Regulations Navy Part-II (Statutory). The sailor(applicant) had never put up any formal representation before his 5

Commanding Officer and further to higher authorities upto the Chief of the Naval Staff and Government of India, Ministry of Defence as per the provisions of Section 21 of the AFT Act 2007. The sailor(applicant) is an artificer highly skilled ERA who has undergone considerable training at

Government expenses. The sailor is experienced in operation and maintenance of critical components related to ATV project. Accordingly, the sailor was re-engaged till 31.01.2018 as per the extant orders in force. The ailments as told in the application for discharge from service on compassionate grounds dated 20.07.2013 are not correct. The ailments of the sailor’s parents are nothing but part of ageing process and can be treated in service hospitals. The service would provide the necessary support for treatment of dependents as required. The sailor

(applicant) was posted to a shore billet in Chennai taking a compassionate view of the sailor’s case where he can also look after the treatment of his parents. Now it is planned to transfer him to

Vishakapatnam for employment with respect to specialization after a period of two years. The sailor/applicant submitted his willingness for his further service in June 2001 and was re-engaged till 31.01.2018 and thereby availed the benefits of “X Group pay on conversion and better promotion avenues and now the sailor is required to complete his tenure in the Navy as payback for training. It is significant that the sailor’s instant request has come up after having completed pensionable service 6 of 15 years and 4 months. The discharge on compassionate grounds shall not be claimed as a right under Regulation 280 of the Regulations for the Navy Part-III (Statutory). The competent authority after analyzing the case did not approve the request for premature discharge of the applicant. The sailor himself voluntarily opted for NEA (ERA) course and for undergoing such course, there is a requirement for extension of service for an additional period of 5 years from the date of expiry of initial term of engagement which is a contracted obligation.

This course provides avenues for promotion for career advancement within service. No sailor out of 25 sailors who had undergone NEA ERA course has been discharged till date due to any reason. Para-18 of

No(Str) 02/07 would provide once re-engagement is granted to a sailor consequent to his willingness, the engagement will generally not be cancelled due to any alternate circumstances affecting the sailor. The sailor will be required to serve upto the period re-engaged for. The request of the applicant was rightly rejected by the respondents and the reasons put forth by the applicant are not sufficient in accordance with the pronouncement of the orders of the Hon’ble Apex court and AFT

Regional Bench of Kolkata. Therefore, the respondents request that the application filed by the applicant may graciously be dismissed being devoid of any merit. 7

4. The applicant has answered to the objections raised by the respondents in their reply statement by way of rejoinder which runs as follows:

The applicant was asked to extend the service for a further period of 5 years for undergoing NEA (ERA) course scheduled from

25.9.2000 to 17.05.2003 which was illegal. The applicant served the

Navy for more than 11 years after the completion of the course. There is no condition or requirement for extension of the service on the basis of the course neither at the time of enrolment in the terms of engagement nor in any Act, Rules and Regulations of the Navy. The competent authority failed to consider the case in a reasonable manner based on the factual position of the applicant. As per Regulation 280 (a) of

Regulations Navy Part-III (Statutory) in cases where it is clear that when undoubted material hardship to the sailor or dependent is involved by his retention in service and the same was justified, then the applicant should be discharged. The arbitrariness of the respondents cannot be permitted in the name of discipline and security of the nation.

Therefore, the application may be allowed as prayed for.

5. On the above pleadings, we find the following points emanated for consideration: 8

(1) Whether the applicant is entitled for the grant of premature discharge on compassionate grounds as sought for in his application?

(2) Whether the impugned order of the first respondent dated

03.12.2013 rejecting the claim of the applicant for premature discharge on compassionate grounds is liable to be set aside?

(3) To what relief the applicant is entitled for?

6. Point Nos. 1 & 2: The applicant is a serving sailor in the Navy who was enrolled in Indian Navy on 23.01.1998 for a period of 15 years.

In the year 2001, he had qualified in Naval Entry Artificer course, a two year diploma course and he had to fulfill the condition of signing a further period of 5 years after the completion of 15 years in his initial engagement. Thus the applicant was engaged to serve Navy for a consolidated period of 20 years from the date of enrolment. Accordingly, he underwent diploma training and did well. The applicant had submitted an application for premature discharge on extreme compassionate grounds under Regulation of the Regulations for the Navy

Part-III (Statutory) on 20.05.2013. In the said requisition, the applicant highlighted the ailments of his father aged about 65 years and his mother aged about 54 years. The applicant had also stated in the said application that he is the only son, to look after his aged parents who are residing at Veerapuram which is located in the outskirts of Chennai and it 9 is difficult to attend a hospital from the said place and therefore, the applicant should be extra-cautious towards parents’ safety and his presence is always required for their support. He had also requested to consider his application for discharge from service on compassionate grounds. The said requisition was forwarded in accordance with the procedures and was placed before the Chief of Naval Staff and the request for premature discharge of the applicant on compassionate grounds was rejected by Chief of Naval Staff and the same was communicated to the applicant through , Bureau of Sailors by the Integrated Head Quarters of Ministry of Defence through its letter dated 03.12.2013. The reasons stated in the said letter in respect of the ailments of the parents of the applicant was that they are only a part of ageing process and can be treated in service hospitals. Furthermore, it is stated that the applicant became an Artificer through NEA Scheme where he submitted his willingness for a further service in June 2001 and was re-engaged till 31.01.2018 and he cannot withdraw his option for continuing in service and to go on premature retirement. It is also further stated that the said course was conducted by the Government with considerable expenditure and the sailor was highly skilled in operation and maintenance of critical components relating to special projects and there was a shortage of 17.4% with reference to ERAs in the Navy. However, it was advised that the applicant may re-apply for 10 discharge, after completion of 2 years at Chennai. The said impugned order is challenged in this application by the applicant.

7. The learned counsel for the applicant would submit in his oral and written arguments that extension of service for a period of 5 years for undertaking NEA (ERA) course scheduled from 25.09.2000 to

17.05.2003 is out of the terms of conditions of service. Therefore, the terms of original engagement alone would bind the applicant who initially engaged for 15 years of service on the date of his enrolment. He would also submit that the option given by the applicant at the time of entering the course for extending the service period was illegal and the applicant should have been given discharge on the compassionate grounds. The liberty given to the applicant to apply once again for premature discharge on compassionate grounds after his engagement at Chennai for 2 years would be amounting to accepting the reasons given by the applicant and the applicant should have been given premature discharge itself by the Chief of Naval Staff.

8. He would further submit that the applicant’s parents are suffering from Primary Hyper Tension and Polyarthalgia and his mother is additionally suffering from Pelvicinflammatory with right hydrosalphinx,

Fibroiduterus which are supported by medical documents. He would insist that the applicant is the only son and his only sister had gone abroad after her marriage and therefore, it is a clear case for granting 11 the relief of premature discharge as asked for by the applicant. He would request this Tribunal to hold that the impugned order rejecting the premature discharge of the applicant as illegal and to direct the respondents to discharge the applicant on the application made by him to that effect.

9. Per contra, the learned Assistant JAG Officer Lt Rahul Ahlawat would submit in his oral and written arguments that the request of the applicant did not contain any merit and therefore, it was rightly rejected by the Chief of Naval Staff. He would further submit that the sailor is a highly skilled ERA who is experienced in operation and maintenance of critical components relating to Special Project and the request for his retention in the Unit exist continuously since 2011 and there is also a shortage of 17.4% with respect to ERAs in the Navy. He would further submit that the applicant after becoming an Artificer through NEA scheme submitted his willingness for further service in June 2001 and was re-engaged till 31.01.2018. Having opted for continuing in service and availed the benefits thereof, the applicant ought to have completed his tenure in the Navy. He would cite a judgment of the Hon’ble Apex

Court reported in 2005 5 SCC 325 between UOI & others and R.P.

Yadav in support of his argument. He would also contend that the ailments of the parents of the applicant are due to ageing process and they may be treated in the service hospitals and the support would be 12 more than that of any other hospital. He would further submit that the applicant was posted to shore billet in Chennai for two years. On considering the grievances of the sailor in order to help him to give proper treatment to his parents, the applicant was scheduled to be transferred to Visakhapatnam for employment with respect to specialization after the expiry of a period of two years. The applicant’s request was considered in accordance with Regulation 280 of the

Regulations for the Navy Part-III (Statutory) and it was rightly rejected by the Chief of Naval Staff and an opportunity was given to him that he could re-apply for discharge after completion of 2 years at Chennai. The oral undertaking given by the learned counsel for the applicant that the applicant is ready to re-imburse the expenditure for giving training cannot be helpful since the training given to the applicant was towards the nation’s interest and security. He would also submit in his argument that the cancellation of re-engagement and for release from the force be claimed by the sailor as a matter of right in view of the provisions of

Section 14 of the Indian Navy Act, 1957 and Regulation 280 of

Regulations for the Navy Part-III (Statutory). The Hon’ble Apex Court had also laid down the said principle and therefore the applicant cannot ask for cancellation of re-engagement as illegal and to seek for premature discharge on compassionate grounds, as a matter of right.

He had also cited the judgment of this Tribunal made in O.A.No.88 of 13

2012 in the case between SND Adhikari and UOI and others , dated 28 th

March 2013 and a judgment of Kolkata AFT Bench in the case of MMK

Pasha, MCPO l, 148101-W. He would also submit that the applicant having signed in the re-engagement proforma for sailors produced as

Annexure 2-A cannot seek for premature discharge on compassionate grounds as a matter of right.

10. Considering the submissions of both sides, we would find that the applicant/sailor had applied for premature discharge on extreme compassionate grounds on the foot of ailments of his parents. The said application filed by the applicant on 20.05.2013 was forwarded by the 3 rd respondent on 19.08.2013 for consideration of the first respondent.

According to Regulation 280 of Regulations for the Navy Part-III

(Statutory), such an application for premature discharge shall be forwarded by the Commanding Officer through the administrative authority to the Naval Barracks for being transmitted to the

Chief of the Naval Staff and the said application shall be scrutinized and if there are grounds appear to be reasonable, it shall be referred to

Deputy Commissioner or Collector of the district concerned for the verification of the circumstances stated in the application and for opinion about the justification of the claim and after obtaining the recommendation or opinion from the civil authorities, the Chief of Naval

Staff shall determine about the requisition of the sailor towards 14 premature discharge on compassionate grounds. As far as the application submitted by the applicant is concerned, the same was not found reasonable and therefore, the Chief of Naval Staff has rejected the request of the applicant on 3.12.2013 and the same was communicated to the Commodore, Bureau of Sailors. Challenging the said order, the present application is filed. The applicant has produced the medical documents of his father and mother to substantiate the reasons stated by him in the said application for premature discharge. No doubt, the said documents would show that the father was suffering from Primary

Hyper Tension and Polyarthalgia. Similarly, his mother was suffering from Primary Hyper Tension, Polyarthalgia and Pelvicinflammatory with right hydrosalphinx, Fibroiduterus. The said ailments were considered by the Chief of Naval Staff as part of ageing process and can be treated in service hospitals and the parents of the applicant would be provided with necessary support for treatment as required by them. However, the applicant/sailor was given liberty to re-apply for discharge after completion of two years at Chennai. Therefore, we could find that the prime reason for rejecting the claim of the applicant cannot be the non- acceptance of the reason put forth towards the ailment of the applicant’s parents. However, we find yet another point from the order of Chief of

Naval Staff that the applicant/sailor was given considerable training at the Government expenses and he is a highly skilled ERA who is 15 experienced in operation and maintenance of critical components relating to Special Projects and his retention is being required continuously since

2011 due to the shortage of 17.4% with regard to ERAs in the Navy.

Whether this would be a sufficient reason for the first respondent to reject the claim of the applicant is the present question. No doubt in

Regulation 280 of the Regulations for the Navy, it has been laid down as follows:

“ (1) Sailors may in exceptional cases, obtain their

discharges in India on extreme compassionate grounds,

that is to say, in cases in which it is clear that undoubted

material hardship to the sailor or dependents is involved

by his retention in the Service. “

11. On the basis of this rule, the claim of the applicant was rejected by the Chief of Naval Staff. Accordingly, it was found that the discharge on extreme compassionate grounds would be given in exceptional cases where there is a clear and undoubted material hardship to the sailor or dependent involved by his retention in service. The requirement of the applicant/sailor as ERA in the Navy was insisted due to 17.4% of shortage of ERA in the Navy. Apart from that it is an undisputed fact that the applicant was trained at the Government expenses. The submission of the learned counsel for the applicant is that he is ready to 16 re-imburse the expenditure incurred by the Government for giving him such training is curious to note at this stage. There cannot be any dispute that the Government expended much on the applicant to give him training so as to handle Special Projects. It is also not disputed by the applicant that there is a shortage of ERAs in Navy as told by the respondents. Whether the Chief of Naval Staff can refuse the plea of the applicant for premature discharge without referring to the civil authorities for verification is the next question. The reason put forth by the Chief of Naval Staff is that the applicant’s service is required for Navy as a trained ERA to handle Special Projects. Therefore, he need not go for any verification or investigation of the ailments of the applicant’s parents through civil authorities. The Chief of Naval Staff has been empowered by the provisions of Section 14 of the Navy Act 1957 which would run as follows:-

“14. Liability for service of officers and sailors:--

(1) Subject to the provisions of sub-section (4), officers

and sailors shall be liable to serve in the Indian Navy or

the Indian Naval Reserve Forces, as the case may be, until

they are duly discharged, dismissed with disgrace, retired,

permitted to resign, or released.

(2) No officer shall be at liberty to resign his office

except with the permission of the Central Government and 17

no sailor shall be at liberty to resign his post except with

the permission of the prescribed officer.

(3) The acceptance of any resignation shall be a matter

within the discretion of the Central Government or the

officer concerned , as the case may be.

(4) Officers retired or permitted to resign shall be liable

to recall to naval service in an emergency in accordance

with regulations made under this Act, and no such recall

shall be liable to serve until they have been duly

discharged, dismissed, dismissed with disgrace, retired,

permitted to resign, or released. “

(Emphasis supplied by us)

12. According to the provisions of the aforesaid section, no sailor shall be at liberty to resign his post except with the permission of the prescribed officer, viz., the Chief of Naval Staff. This power given to a prescribed officer cannot be regarded as a curtailment of the fundamental rights of the applicant in view of provisions of Section 4 of the Navy Act, 1957 which gives exemption. Therefore, the Chief of

Naval Staff who is the prescribed officer for granting permission for the resignation or premature discharge of the applicant can exercise his 18 discretion to grant or not to grant the request of the applicant for premature discharge.

13. It has also been dealt with in a judgment of the Hon’ble Apex

Court reported in (2005) 5 SCC 325 between UOI and others and

R.P. Yadav and the relevant portion is as follows:

“ An incidental question that arises is whether the claim made

by the respondents to be released from the force as of right is

in keeping with the requirements of strict discipline of the

naval service. In our considered view the answer to the

question has to be in the negative. To vest a right in a

member of the Naval Force to walk out from the service at any

point of time according to his sweet will is a concept abhorrent

to the high standard of discipline expected of members of

defence services. The consequence in accepting such

contention raised on behalf of the respondents will lead to

disastrous results touching upon the security of the nation. It

has to be borne in mind that members of the defence services

including the Navy have the proud privilege of being entrusted

with the task of security of the nation. It is a privilege which

comes the way of only selected persons who have succeeded

in entering the service and have maintained high standards of

efficiency. It is also clear from the provisions in the

Regulations like Regulations 217 and 218 that persons who in 19

the opinion of the prescribed authority, are not found

permanently fit for any form of naval service may be terminated and discharged from the service. The position is clear that a sailor is entitled to seek discharge from service at the end of the period for which he has been engaged and even this right is subject to the exceptions provided in the

Regulations. Such provisions, in our considered view, rule out the concept of any right in a sailor to claim as of right release during subsistence of period of engagement or re-engagement as the case may be. Such a measure is required in the larger interest of the country. A sailor during the 15 or 20 years of initial engagement which includes the period of training attains a high-degree expertise and skill for which substantial amounts are spent from the exchequer.

25. Therefore, it is in the fitness of things that the strength of the Naval Force to be maintained is to be determined after careful planning and study. In a situation of emergency the country may ill-afford losing trained sailors from the force. In such a situation if the sailors who have completed the period of initial engagement and have been granted re-engagement demand release from the force and the authorities have no discretion in the matter, then the efficiency and combat

preparedness of the Naval Force may be adversely affected.

Such a situation has to be avoided. The approach of the High 20

Court that a sailor who has completed 15 years of service and

thereby earned the right of pension can claim release as a

matter of right and the authority concerned is bound to accept

his request, does not commend itself to us. In our considered

view, the High Court has erred in its approach to the case and

the error has vitiated the judgment. “

(Emphasis supplied by us)

In the said judgment it has been clarified elaborately about the requirement of the trained sailors. In the case discussed in the judgment, the Hon’ble Apex Court had come down heavily against the grant of permission for a sailor to get discharge prematurely and found that a sailor cannot be released as a matter of right.

14. In this case, the applicant was engaged for 15 years and his period of engagement has been extended by 5 years on his execution of re-engagement proforma issued to the individual on 06.06.2001 and thus the applicant underwent NEA (ERA) course and after the completion of the said course, he became an ERA who is a specialized sailor to handle Special Project. Along with him, 25 personnel were given training in the said course and nobody was granted any premature discharge as they are very much required to handle the Special Projects. The reason given by the Chief of Naval Staff that his service is required in Navy no doubt outweighs the reasons given by the applicant for premature 21 discharge regarding the ailments of his parents. The answer given in the impugned order by the Chief of Naval Staff that the parents of the applicant can be given proper treatment in the service hospitals is quite convincing. Therefore, the order passed by the Chief of Naval Staff is in accordance with Regulation 280 of the Regulations for the Navy, Part-III

(Statutory). The Chief of Naval Staff had exercised his discretion given under Section 14 of the Navy Act promptly and had passed the order of refusal to the request of the applicant for premature discharge on compassionate grounds. Therefore, we find no reason to interfere with the impugned order passed by the Chief of Naval Staff. Furthermore, the Chief of Naval Staff has given liberty to the applicant to apply for premature discharge after completion of his two years term at Chennai so as to consider his plea of premature discharge in the circumstances prevailing in future regarding the requirement of his service. Therefore, there is no point for us to interfere with the impugned order and the plea of the applicant to set aside the order of the Chief of the Naval Staff is not therefore sustainable. Consequently, the applicant is not entitled for premature discharge as asked for by him. Accordingly, both the points are not decided in favour of the applicant.

15. Point No.3: In view of the reasons and discussions held in the previous points that the impugned order passed by the Chief of Naval

Staff dated 03.12.2013 cannot be set aside and the applicant is not 22 entitled to get any direction against the respondents to sanction the discharge of the applicant immediately and therefore, the application filed by the applicant for those reliefs is liable to be dismissed.

16. In fine, the application is dismissed. No costs.

Sd/ Sd/ LT GEN K. SURENDRA NATH JUSTICE V.PERIYA KARUPPIAH MEMBER (ADMINISTRATIVE) MEMBER (JUDICIAL)

22.08.2014 (True copy)

Member (J) – Index : Yes/No Internet : Yes/No

Member (A) – Index : Yes/No Internet : Yes/No

VS

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To:

1. Chief of Naval Staff Naval Head Quarters Integrated Head Quarters (IHQ) Defence Head Quarters (DHQ) New Delhi-110 011.

2. The Project Director (for G.M.(L.A. & P) Ship Building Centre Krishna Gate, Naval Dockyard Road Visakhapatnam-530 014.

3. The Flag Officer Commander-in-Chief (for SO (Personnel), Head Quarters Eastern Naval Command, Naval Base Visakhapatnam-530 014.

4. Secretary Ministry of Defence, New Delhi-110011.

5. Mr. M.Selvaraj Counsel for applicant

6. Lt Rahul Ahlawat, Asst. JAG Officer, Navy. For respondents

7. OIC, Legal Cell (Navy), Chennai.

8. Library, AFT/RBC

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HON’BLE MR.JUSTICE V. PERIYA KARUPPIAH MEMBER (JUDICIAL) AND HON’BLE LT GEN K. SURENDRA NATH MEMBER (ADMINISTRATIVE)

O.A.No.37 of 2014

Dt: 22.08.2014