Sunil Kumar, Army No. 4272510. Vs The Union of India and Others

@JUDGMENTTAG-ORDER

Mihir Kumar Jha, J.@mdashHeard Mr. Vivek Prasad, Learned Counsel for the petitioner and Mr. Sarvadeo Singh, Learned Counsel for the respondents. The prayer of the petitioner in this writ application reads as follows:-

1(I) For a direction upon the respondents to cancel the illegal discharge of the petitioner in view of the fact that he had withdrawn his letter of resignation before its acceptance.

(II) For a direction upon the respondents to take the petitioner back in service with all consequential benefits.

2. During the pendency of this writ application the petitioner by filing LA. No. 329 of 2010 has also sought an additional relief for quashing of an order dated 26,6.2006 describing it to be his order of discharge from service of Armed Force.

3. In support of the aforementioned prayer, Learned Counsel for the petitioner would submit that since the petitioner had already withdrawn his letter of resignation dated 21.9.2005 seeking voluntary retirement from the service in Indian Armed Force by filing an application on 15.5.2006, the later decision by the Army authorities to retire the petitioner with effect from 31.5.2006 should have been automatically recalled, inasmuch as, the petitioner had a right to change his decision before being given retirement. He has further tried to make out a case that the petitioner was actually compulsority retired from Army service on the ground of Low Medical Category and, therefore, he should have been offered some other job as per his physical condition in stead of being altogether retired from Army service, which had the effect of denying him either pension or disability pension.

4. On the other hand, Mr. Sarvadeo Singh Learned Counsel for the respondents in the light of the stand taken in the counter affidavit, has submitted that the petitioner had sought voluntary retirement on his personal ground by filing an application on 21.9.2005 and all such applications including that of the petitioner after consideration by the competent authority were disposed of by an order dated 9.10.2005 and the petitioner''s discharge by way of acceptance of his resignation from service was also communicated and acted upon by directing him to report in Bihar Regimental Center, Danapur for discharge drill with effect from 7.5.2006 in order to relieve on 31.5.2006. He would also point out that pursuant to the said order, the petitioner had also reported for discharge drill in Bihar Regimental Center on 7.5.2006 and, thereafter, he had filed an application for recalling his resignation on 15.5.2005 which could not have been acted upon in view of aforesaid acceptance order dated 9.10.2005 as contained in Annexure-A to the counter affidavit.

5. Mr. Singh has also submitted that as a matter of fact after the petitioner stood retired w.e.f. 1.6.2006 he had filed an application on 9.6.2006 seeking reinstatement in service even by way of alternative employment on some other post or payment of retirement benefit which was also rejected by the competent authority by an order dated 26.6.2006. In this regard he has also explained that the aforesaid order dated 26.6.2006, rejecting both of his aforesaid claims namely either for reinstatement in service or for payment of retirement benefit, was in fact made subject matter of a writ application CWJC No. 2761 of 2007 which was dismissed by this Court on 18.4.2009 in view of the letter of the resignation of the petitioner dated 21.9.2005 requesting for his voluntary discharge on his own ground of his family problems. He would accordingly submit that in the given circumstances, the petitioner''s this second writ application literally against the same cause of action would not be maintainable.

6. Mr. Prasad in reply would submit that when an order dated 18.4.2009 in CWJC No. 2761 of 2007 was passed dismissing the writ petition and this Court in the present writ application by an interim order dated 18.8.2009 had held it to be barred by the principles of constructive res judicata the petitioner had filed a modification application, MJC No. 2762 of 2009 and this Court in its order dated 29.10.2009 had given liberty to the petitioner to assail the order dated 26.6.2006 and as such, this writ application is now maintainable.

7. In the considered opinion of this Court, the additional prayer of the petitioner in I.A. No. 329 of 2010 for quashing the alleged order of discharge dated 26.6.2006 being in effect not an order of discharge the whole matter has to be dealt in the background of the earlier order dated 18.4.2009 passed by this Court in C.W.J.C. No. 2761 of 2007, relevant portion whereof reads as follows:-

It is submitted on behalf of the petitioner that the retiral dues with regard to disability pension as well as other dues on account of gratuity and other claims, as detailed in paragraph-1 of the writ application, have not been paid.

Learned Counsel for the respondents submits that on mere perusal of the letter dated 26th June, 2006 (Annexure-3), it would appear that the petitioner was not qualified for receiving the service pension as well as the disability pension as he did not complete the minimum qualifying service of fifteen years in terms of Rules 132 and 178 of the Pension Regulation Part 1, Army, 1961. The said decision has not been assailed by the petitioner, and as such, no pension can be paid to the petitioner contrary to the above rules, and accordingly, it was not paid. As regards other dues, details have been given in the counter affidavit and reasons have been assigned for denial of other claims of the petitioner with regard to leave encashment, A.G.I, disability benefits.

Learned Counsel for the petitioner submits that in the rejoinder affidavit, in paragraph 4 it is explained that he did not complete the required service on account of his ill health and the authority did not give him suitably posting, and as such, the petitioner had made request for his discharge on his own.

Learned Counsel for the respondents, however, disputes the same by placing the representation of the petitioner as contained in Annexure-R/9 in order to show that the petitioner had requested for his discharge on his own on account of his family problems.

Considering the submissions of the parties, as noticed above, and on perusal of their respective pleadings, I do not find any merit in this writ application. The same is, accordingly, dismissed.

8. From reading of the aforementioned order, it would be clear that when the petitioner in C.W.J.C. No. 2761 of 2009 had tried to make out a case for grant of disability pension as also grant of gratuity and other claims by accepting his order of discharge, the same was dismissed by this Court on the ground that the resignation of the petitioner did not amount to his being discharge on medical ground in Low Medical Category and that his such discharge was by based on his own request regarding his personal and family problems. Once this aspect becomes clear, the petitioner''s plea of maintaining this writ application on the strength of the order passed in MJC No. 2762 of 2009 is also wholly misconceived, inasmuch as, in this writ application filed on 12.8.2009 the order dated 26.6.2006 was initially not challenged and for the other relief of cancellation of his order of discharge, this Court in the interim order dated 18.8.2009 had held the writ not maintainable on the ground of constructive res judicata by recording as follows:-

The petitioner was a sepoy in the Indian Army. He was down graded to low medical category because of certain ailments. He then tendered resignation from Army, It is alleged that before the resignation was accepted he sent an application withdrawing his resignation. It is alleged that notwithstanding the same taking a compassionate view of the matter petitioner''s resignation was accepted and he was discharged from Army. Having been discharged he sought retiral dues. Having not been the same he filed a writ petition being C.W.J.C. No. 2761 of 2007 claiming disability pension and other dues on account of gratuity and other claims. In the said writ proceedings a counter affidavit was filed wherein it was clearly stated that in the letter discharging the petitioner it was clearly mentioned that he was not entitled to any retiral dues. In the counter affidavit it was also stated that the petitioner had not completed the minimum service period entitling him to disability of pension further he not having been discharged by Army on its own but was discharged as a consequence of his resignation being accepted, he was entitled to retiral dues or pensionary benefits. The writ petition was heard and disposed of by order dated 18.4.2009 in which it is clearly noted that the decision of the Army authorities disallowing pensionary benefits was not challenged. The writ petition was thus dismissed. It may be noted that the petitioner in spite of being told the ground for not allowing pensionary benefits did not challenge the same nor did it seek the leave of the Court to challenge the same in a separate proceeding that order attained finality.

By this writ petition petitioner has now sought to challenge the said decision. Prima facie, in my view, considering the principles as engrafted in explanation 4(i)(b) to Section 11 of the CPC when it was open to the petitioner to challenge the said order in the earlier proceeding, he having not challenged the same, the challenge cannot be permitted, now as it is hit by principles of constructive res judicata.

Learned Counsel for the petitioner prays that he be given a chance to approach the writ court which had earlier disposed of the earlier proceedings for any relief that may be possible.

9. The submission of Mr. Prasad Learned Counsel for the petitioner that liberty given in the order dated 29.10.2009 in M.J.C. No. 2762 of 2009 filed by the petitioner would make this writ application maintain able also does not seem to be correct inasmuch as all that was recorded therein reads as follows:-

This application is for modification of the order dated 18.4.2009 passed in C.W.J.C. No. 2761 of 2007.

A counter affidavit has been filed on behalf of the opposite party-Union of India.

Mr. Vivek Prasad, Learned Counsel appearing on behalf of the petitioner submits that by the aforesaid order dated 18.4.2009, the above writ application was dismissed by taking note of letter dated 26th of June, 2006, whereby it was communicated to the petitioner that he is not entitled to the service pension nor the disability pension since he did not complete the minimum qualifying service of 15 years as required under the Rules referred to in the said letter. Learned Counsel for the petitioner submits that the petitioner proposes to assail the aforesaid decision, contained in the letter dated 26th of June, 2006. However by inadvertence, the petitioner did not make such submission while the aforesaid writ application was being heard and disposed of.

Having heard the rival submission of the parties, in my opinion, in case the petitioner desires to assail the aforesaid order, it will be open to him to do so in accordance with law before an appropriate forum. The order dated 18.4.2009 is modified to the above extent.

This M.J.C. application, thus stands disposed of.

10. Thus LA. No. 329 of 2010 filed in this case for assailing the order dated 26.6.2006 would also be of no avail inasmuch as the decision of the petitioner being discharged from service had already taken by the Army authorities way back on 9.10.2005 and not on 26.6.2006 and the order of this Court dated 18.4.2009 while dismissing the earlier writ petition of the petitioner had held that his discharge was made on his own request.

11. It would thus be necessary for this Court to take into account the sequence of events in chronological manner. The petitioner in fact with his open eyes had submitted his application on 19.9.2005 for acceptance of his resignation, which reads as follows:-

12. As would appear, this was filed by the petitioner from his place of posting and was acted upon by the authority by accepting his resignation from service in the form of discharge on compassionate ground as would also be apparent from the order of the authority dated 9.10.2005, which also is reproduced hereinbelow:-

DISCHARGE FROM SERVICE ON COMPASSIONATE GROUNDS

1. Approval is hereby accorded to discharge the following P wef 31 May, 2006 (AN) in terms of items l(i)(b) in case of JC and III(iv) in case of OR the table annexed to Rule 13(3) of Rule 1954 at their own request on extreme compassionate ground. They would report to the Bihar Regiment Centre (Depot Coy) for discharge drill on 7 May, 2006:-

2. Discharge documents as per Appx. ''3'' & T to Para 544 of BIHAR ROI 2004 and this office letter No. 1604/G/25/NE dated 22 Dec., 80 in respect of above pers as applicable to them may please be submitted to this office forthwith for publication discharge occurrences.

3. Please ensure that release medical board in respect of Low Medical Category Personnel and release medical examination for those in category ''SHAPE-1" are held in advance to their expected date of discharge. In this connection please refer this office letter No. 1504/G/R/NE dated 22 Nov., 89.

4. Please ensure that if above personnel cannot be sent then BIHAR Regt. Centre (Depot Coy) by due date for carrying out of discharge formalities, they are discharged from service local JCOs/OR 1992 and AO 21/81.

RESTRICTED

5. Please ensure that Certificate-cum-Declaration of family par Appx. ''A'' to Para 7 of Army Headquarter''s letter No. A/201 of pension docu instead of old formats.

6. Copies of movement order will be endorsed to all concerned.

7. Please ack.

Sd./-

ACK vide A/48/288 (A.S. Panghal) dt. 9 Oct., 2005

Lt Col
CRO
For OIC Records

13. The acceptance of the resignation of the petitioner, therefore, became fait accompli as would be clear from reading of the aforesaid order, which was sent to all concerned and obviously to the petitioner as well. As a matter of fact, the petitioner has not disputed the receipt of the said order dated 9.10.2005 nor can be heard to say that he was not aware of acceptance of his resignation and his discharge on compassionate ground on his own request inasmuch as, the alleged application dated 15.5.2006 was filed by him not only after partly complying the said order dated 9.10.2005 by reporting for the discharge drill at Bihar Regimental Center, Danapur on 7.5.2005. Moreover, the wordings of his application dated 15.5.2006 for revoking the communicated decision of acceptance of his resignation contained in the order dated 9.10.2005 would leave nothing for speculation that the petitioner''s resignation letter had already been accepted. In the aforesaid application dated 15.5.2006, the petitioner had stated as follows:-

14. Thus from reading of the aforesaid application, it would be more than clear that the petitioner wanted the decision which had already been taken for acceptance his resignation by way of discharge on compassionate ground to be revoked on the ground that his earlier application was filed by him under compulsion. The fact that the petitioner in his earlier application dated 19.9.2005 had given the reason for acceptance of his resignation being his parents becoming old and there being partition in family leading to a situation where there was no one else to look into the Interest of the family consisting of minor children would leave nothing for speculation that the petitioner had sought to be give up all his earlier pleas simply for making out a ground he had not voluntarily resigned and he had to continue in service because his two children were still minor who needed to be looked after by the petitioner. Thus from the wordings of the resignation letter of the petitioner dated 19.9.2005 read with the subsequent application seeking withdrawal of his resignation it would become clear that the change of ground of the petitioner was subsequent to the decision taken by the authority accepting his request of his resignation by way of discharge on compassionate ground. Once the decision however for acceptance of resignation on 9.10.2005 was already taken and also communicated to the petitioner and in fact even acted upon by him in the form of reporting for discharge drill at Bihar Regimental Centre on 7.5.2006, his application dated 15.5.2006 for withdrawal his resignation was of no avail. Once this aspect would becomes clear, there would be no difficulty in holding that the prayer of the petitioner for holding the discharge of the petitioner from service as illegal has got no merit.

15. As a matter of fact it was this aspect which was clarified by the competent authority on 26.8.2006 while rejecting subsequent application of the petitioner dated 9.6.2006 wherein he after his being relieved from service on 31.5.2006 had made a prayer for alternative employment and/or at least payment of post retirement benefit. In the order dated 26.6.2006 the competent authority had recorded as follows:-

Records-The Bihar Regiment

PIN-900441

C/o 56 APO

1603/P/4/NE

26 June, 2006

No. 4272510A Ex Sep Sunil Kumar

Vill.-Krishna Nagar Koolipara

P.O.-Sahibganj

Dist.-Sahibganj

State-Jharkhand

PIN -816109

RE-INSTATEMENT IN SERVICE PERSONNEL DISCHARGED FROM SERVICE ON EXTREME COMPASSIONATE GROUNDS AT THEIR OWN REQUEST

1. Refer Your application dated 9 June, 2006.

2. It is to inform that you have been discharged from service on extreme compassionate ground at your own request without completion of minimum qualifying service of 15 years. Therefore neither you are eligible for service pension nor for disability pension in terms of Rules 132 and 176 of Pension Regulations Part-I Army 1981 (Revise Edition) respectively.

3. You have already been discharged from service on extreme compassionate grounds at your own request and struck out of strong of the Army with effect from 1 June, 2006. Therefore, there is no provision to re-instate you in service.

4. The individual who are discharged from service without earning any type of pension do not come under the purview of definition of ex-servicemen as laid down vide Govt. of India, Min of Def letter N 4008/DGR/S&R/RES-9 dt. 27 Nov. 95, hence non ex-service men has been mentioned in your discharge book (IAFY-196A)

Sd/-
(Sondoe LS)
Maj.
SRO
for OIC Records.

16. Thus it is more than apparent that the order dated 26.6.2006 is not an order of discharge but only rejection of his claim for reinstatement and/or grant of pension which has become final in view of the order of this Court dated 18.4.2009 dismissing his writ petition C.W.J.C. No. 2761 of 2007 for grant of retirement benefit and disability pension on the ground of his order of discharge being illegal.

17. The remaining submissions that since the respondents have admitted this fact that the offer of withdrawal of resignation of the petitioner had been made prior to the resignation come into force, the respondents were duty bound to recall the decision of the discharge of the petitioner, is also to be noted for its being rejected. In paragraph No. 14 of the writ application, whatever has been said by the petitioner in the following words:-

14. That, the petitioner vide his letter dated 15.5.2006 withdrew his resignation and requested the authority to ignore the letter of resignation in the interest of his children and family.

is not in consonance with the document annexed by the petitioner in the form of application dated 15.5.2006, where actually he had wanted the communicated decision of acceptance of his resignation to be revoked. As noted above, the said decision has already come into force and the petitioner had also acted in consonance of the same by reporting to the Bihar Regimental Center for discharge drill with effect from 7.5.2006 and, therefore, his filing of application on 15.5.2005 was wholly a belated act.

18. In that view of the matter, this Court would not be in a position to also accept the submission of Mr. Prasad that it was a case of plain and simple withdrawal of resignation before its coming into force. Reference in this connection may be made to the judgment of Apex Court in the case of Chand Mal Chayal Vs. State of Rajasthan, where it was held that after resignation of the employee had been accepted, the claim of re-employment could not be considered. As a matter of fact, in that case the appellate had resigned from service to contest election and there fore it was voluntary act of his resignation and in fact after acceptance of his resignation dated 27,1.1990 it was accepted on 28.1.1990, and he had been not only re- lieved from the service on 29.1.1990 but also filed his nomination for contesting the election, but had subsequently withdrawn his such nomination on 2.2.1990 and then had asked his employer by his application dated 12.2.1990 to withdraw resignation either by reinstating on the old post or by way of reemployment the Apex Court had however held that once such resignation was accepted the same could not be withdrawn.

19. this Court at this stage also must notice to one more submissions made by Mr. Prasad that as a matter of fact from the discharge certificate and the booklet issued, it would be clear that the petitioner''s discharge was made on Low Medical Category and, therefore, he could not be denied of disability pension.

20. this Court however is simply not in a position to accept such a submission for a simple reason that the petitioner''s own application dated 21.9.2005 or even the subsequent application dated 15.5.2006 do not even remotely refer to the petitioner''s discharge being on medical ground. As a matter of fact, when the authority had in the discharge certificate clearly mentioned the reason of discharge being under Rule 13(3)(iv), it has to be understood that such discharge was on the request of the petitioner, inasmuch as, table under Rule 13(3) reads as follows:-

13. Authorities empowered to authorize discharge.-(3) In this table "Commanding Officer" means the officer commanding the corps or department to which the person to be discharged belongs except that in the case of Junior Commissioned Officers and Warrant officers of the Special Medical Section of the Army Medical Corps, the "Commanding Officer" means the Director of the Medical Services, Army, and in the case of Junior Commissioned Officer and Warrant Officers of Remounts, Veterinary and Farms, Corps, the "Commanding Officer" means the Director, Remounts, Veterinary and Farms.

(Underlining for exphasis)

21. It would thus be clear that under the Army Act, 1950, there are different modes of discharge including one on the ground of being found medically unfit for further service and the other being at his own request before fulfilling the conditions of his enrolment. this Court would find in the discharge certificate there was a clear reference to Rule 13(3)(iv), which will leave this Court with no other option but, to hold that the petitioner''s discharge was not under Low Medical Category and, therefore, any reference to the counter affidavit as with regard to the acceptance of certificate would not change the situation that the petitioner had voluntarily submitted his application for being discharged from Army service and was discharged at his own request when the same was also allowed by the competent authority. Once this aspect becomes clear, there would be no difficulty for distinguishing the judgment of the Apex Court in the case of Kunal Singh Vs. Union of India (UOI) and Another, which has been also followed by the learned Single Judge of this Court in the case of Ex.L/NK Rama Shankar Prasad vs. The Union of India & Ors. (CWJC No. 8412 of 2009*) in its order dated 10,9,2009. As a matter of fact, the reading of the said order would itself go to show that it was a case of out and out discharge on Low Medical Category and, therefore, whatever principles have been laid down in the said case, would not at all be applicable to the facts of the case of the petitioner, who as noted above was discharged on his own request.

22. The conduct of the petitioner will also make it clear that in earlier writ petition when he had moved this Court in CWJC No. 2761 of 2007, he had not questioned the decision of his acceptance of resignation and allowing his application for voluntary retirement on his own request rather he had come out with a case that his such discharge should be treated to be on low medical ground so as to entitle him for grant of retirement pension and disability pension. The petitioner in fact did not assail the decision his discharge rather was only pressing for benefit of such discharge and, therefore, by taking a mere liberty of this Court to assail an order dated 26.6.2006, which is only by way of disposal of the representation of the petitioner dated 9.6.2006 (which has also not been brought on record by the petitioner in this case), he cannot create a fresh cause of action with regard to and issue which was decided against him holding that his discharge based on his own request would not make him entitled for payment of retirement benefit and/or disability pension. That being so, this application is wholly misconceived and is accordingly dismissed.