2000 Supreme(SC) 1029

2000(4) Supreme 318
SUPREME COURT OF INDIA
(From Delhi High Court)
K.T. Thomas, D.P. Mohapatra and Ruma Pal, JJ.
Union of India & Ors. -Appellants
versus
R.P. Yadav etc. -Respondents
Civil Appeal No. 3345 of 2000
(Arising out of SLP (C) No. 9839 of 1999)
With
Civil Appeal No. 3346 of 2000
(Arising out of SLP (C) No. 16848 of 1999)
Decided on 10-5-2000
Counsel for the Parties :
For the Appellants : Altaf Ahmed, Additional Solicitor General, A.K. Goel, Sr. Advocates, Ms. A. Subhashini, Arvind Kumar Sharma, S.N. Terdol, Advocates.
For the Respondents : K.G. Bhagat, Vineet Bhagat and R.K. Agnihotri Advocates.

IMPORTANT POINT
An Artificer Apprentice who is granted re-engagement for a certain period after obtaining his consent cannot subsequently resile from it and cannot claim release from the force as a matter of right.

Headnote:Navy Act, 1957-Sections 16, 17 and 18-Navy (Discipline and Misc. Provision) Regulation, 1965-Regulation 127-Navy Order 17 of 1994-Clause 18-Artificer apprentice/sailor-Re-engagement-Cancellation of re-engagement-Right of Artificer apprentice/sailor to demand discharge during re-engagement-A sailor is entitled to seek discharge from service at the end of period for which he has been engaged subject to exception provided in Regulation-There is no right in a sailor to claim as of right release during subsistence of period of engagement or re-engagement.

       Per Majority (K.T. Thomas & D.P. Mohapatra, JJ.)

       The provisions of the Naval Str. 17, leave no manner of doubt that re-engagement of sailors can neither be claimed by a sailor as a matter of right nor can cancellation of re-engagement and release from the force be claimed by a sailor as a matter of right. It is to be decided by the competent authority keeping in view the relevant factors, the most important one being the service requirements. (Para 17)

       No provision in the Navy Regulations, 1965, has been brought to our notice which expressly or by implication provides that a sailor can at any time during the subsistence of period of re-engagement demand release from service. On the contrary a fair reading of the provisions of the Regulations shows that a very high standard of discipline is to be maintained by members of the Naval Force including sailors. Under Regulation 127 sailors who may have quit their ships without leave, or have overstayed their leave or have improperly absented, themselves, when detached on duty, and who may be apprehended before the expiration of seven days, beyond the precincts of a dockyard or other government establishment in which they may have been employed, shall be treated either as absentees or as deserters, according to the circumstances which are to be judged by their respective commanding officers. From provisions in the Regulations it is also manifest that stringent measures of punishment are prescribed for any act of indiscipline. It is also a matter of common knowledge that the Naval Force which is entrusted with the sacred duty of guarding the shores of the country against any form of aggression should be a highly disciplined and efficient service. (Para 19)

       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 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 Regulations like Regulation 217 and 218 that persons who in 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. 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 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 us. In our considered view, the High Court has erred in its approach to the case and the error has vitiated the judgment. (Paras 20 & 21)

       The contention that a sailors agreed for re-engagement only for the reason that they were not eligible to receive pension under the Navy (Pension) Amendment Regulations, 1982, and since that position no longer holds good in view of the decision of this Court in Anuj Kumar Dey s case, 1997(1) SCC 366 they are entitled to withdraw the option given by them earlier. This contention is wholly unacceptable and has to be rejected. Reasons for which a sailor may exercise option for re-engagement may be very many. Such reasons will vary from person to person. No provision in the Act or Regulation has been placed before us which shows that the sailor is required to state the reason in support of the option given by him for re-engagement. Therefore, the reason which played in the mind of the sailor concerned to exercise option in favour of re-engagement is not relevant for determination of the question raised in the case. In that view of the matter the decision of this Court in Anuj Kumar Dey s case (supra) is of little assistance to the respondents in the case. All that was decided by this Court in that case is that the training period as Artificer Apprentice, will be included in the computation of the qualifying period of service for earning pension for the reason that during the period of training as Artificer Apprentice the sailor was in the service of the Navy. This Court did not consider any other question which may have a direct or indirect bearing on the controversy raised in the present case. It follows that the decision of this Court in Anuj Kumar Dey s case (supra) cannot provide a legitimate basis for claim of the respondents to be discharged from the Naval force as a right. (Para 22)

       Per Ruma Pal, J. (Dissenting)

       The appellants by sending Raj Kumar the "Expiry of Engagement Serial" expressly represented to him that he had put in only 11 years of pensionable service and that he should apply for extension for four years to qualify for pension. It is on record that Raj Kumar agreed to be re-engaged to complete the period of pensionable service. The representation by the appellants was in fact wrong. It may be that the representation was bona fide, but it would be a misrepresentation nevertheless, and the agreement for re-engagement entered into on the basis of such a misrepresentation is avoidable at the instance of Raj Kumar. If the re-engagement were sought to be avoided by the Government because of a wrong representation by Raj Kumar as to a material fact, there can be no doubt that the stand of the Government would be upheld. I would therefore conclude that the High Court rightly held that Raj Kumar was entitled to avoid the contract of re-engagement under Section 19 of the Contract Act, his consent to the re-engagement having been obtained by a misrepresentation within the meaning of Section 18 of that Act. Raj Kumar having validly exercised the right, the appellants were bound to treat the re-engagement at an end and release him. (Para 47 to 49)

       Further the re-engagement is contrary to the Navy Act and the Regulations. It must be remembered that Raj Kumar had completed the necessary qualifying service for minimum pension. He was entitled to ask for his discharge under Section 16(a) unless he were re-enrolled in accordance with Regulation 268(3)(b). As already noted any extension under Regulation 268 (3)(b) could only be for a period of two years unless (i) the exigencies of service so warranted and (ii) with the prior approval of the Chief of Naval Staff. It is the admitted case of the appellants, as noted earlier, that the re-engagement for four years was made only to enable the respondents to qualify for pension and for no other reason. This is also clear from the order of rejection quoted earlier. In the absence of any of the preconditions registered for re-engagement after a sailor had served for pension, the re-engagement of Raj Kumar was not in accordance with the Regulations. (Paras 50 & 51)