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Armed Forces Tribunal, Regional Bench, Chennai O.A 1 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. 2 3. The Flag Officer Commander-in-Chief (for SO (Personnel), Head Quarters Eastern Naval Command, Naval Base Visakhapatnam-530 014. 4. Union of India, 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 Indian Navy 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.
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