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2001 Supreme(Del) 1457
High Court Of Delhi
H.C.CHANDEL - Appellant
Versus
UNION OF INDIA - Respondent
Suit 1438 of 1998
Decided On : 10/05/2001
JAGJIT SINGH CHAWLA, NEMO K.PARASARAN
The mandatory nature of procedural requirements under the Army Act, the prohibition of delegation of authority, and the invalidity of actions not in compliance with the prescribed rules.
Headnote:
Army Act - Termination of Service - Section 13-A
Fact of the Case:
The plaintiff filed a suit against the Union of India and Chief of Army Staff challenging his compulsory retirement from the Army. The plaintiff argued that the termination of his service was illegal and void as it was not in compliance with the Army Act and that he was discriminated against.
Finding of the Court:
The court found that the plaintiff's compulsory retirement was invalid due to non-compliance with the mandatory provisions of Section 13-A of the Army Act. The court also noted that the plaintiff was discriminated against and that there was no sufficient ground for his compulsory retirement.
Issues: The issues involved the legality of the plaintiff's compulsory retirement, compliance with the Army Act, and allegations of discrimination.
Ratio Decidendi: The court held that the procedural requirement of Section 13-A of the Army Act, which mandates the Chief of the Army Staff to call upon the officer to show cause before compulsory retirement, is of mandatory nature. The court also emphasized that the power conferred upon a particular person cannot be transferred or usurped by any other functionary unless provided under the rules.
Final Decision: The court decreed the suit, holding the show cause notice and order of compulsory retirement to be illegal and void. The defendants were directed to reinstate the plaintiff in the service with consequential benefits.
( 1 ) THIS is a suit for Declaration, Mandatory injunction and Recovery of Damages against Union of India and Chief of Army Staff declaring the termination of the plaintiff as illegal and void with the direction to the defendants to reinstate the plaintiff in the service and compensation of Rs. 10,25,000. 00 towards damages, losses, mental agony, defamation and harassment.
( 2 ) THE case of the plaintiff in brief as under:- the plaintiff joined the Army in the ranks on clerical post as clerk (General Duty) in March 1991. By way of quick promotions, he rose to the rank of naik . During this period, he qualified the written test and interview held at Bangalore and he was appointed as "service Cadet" and sent for training to ACC Wing ( IMA dehradun) in the year 1987. After completing the mandatory training of three and half years from the said institution, in December, 1990, he was sent for further training to Indian Military Academy Dehradun and successfully completed the said training and was appointed as Second Lieutenant in the Regular Army and commissioned by the President of India on 14. 12. 1991.
( 3 ) HOWEVER, while in training at Dehradun, plaintiff was asked to give options of his service and also the same at SSB interview forms. He opted for service Cadre of the Army. After completing his required training, he was again asked to give an option and he opted for services cadre of the Army as he was above 30 years old and had no technical aptitude for artillery and related fields. However, instead of posting him to service branch of the Army, he was posted in the fighting Arm viz. Regiment of Artillery of the Army. with reluctance, the plaintiff joined the Artillery School deolali on 6. 1. 1992 and subsequently protested to the concerned authority by representations dated 5. 2. 1992, 11. 5. 1992. Again vide letter dated 4. 3. 1993, he made a request for change of his cadre from Arms to Services. In the meantime, the plaintiff could not qualify a course called young, Officers course. His representation dated 4. 3. 1993 was favourably recommended by his Commanding officer as well as by the Formation Commander vide recommendation letter dated 31. 3. 1993 for change from arms to service in respect of the plaintiff. The relevant extracts from the said letter are as under:-
"1. The offr s performance on regimental duties has been absolutely satisfactory. 2. The offr is an ACC entry and his earstwhile trade was Clk (GD ). His failure on the YO s course indicates that he does not have a scientific temper to shape into a good artillery offr, which does require a basic technical bend of mind. It would be in the best interest of the service, if his developed knowledge and skill is further exploited rather than pushing a square peg into a round hole. This would also meet the offr s requirement. "
( 4 ) HOWEVER, no action was taken by the concerned authorities on the recommendation of the Commanding officer. Plaintiff again sent a representation and reminder to the authorities and sought interview from military Secretary and Colonel Commandant. However vide letter dated 21. 8. 1993, the plaintiff was asked by the authorities to submit a detailed case for transfer from arms to Service. The plaintiff submitted the detailed case to the concerned authorities. In spite of details furnished by him as well as protect he was sent for platoon weapons to the Infantry School, Mhow. Ultimately, request of the plaintiff was rejected vide letter dated 10. 11. 1993.
( 5 ) IN spite of his confidential reports being outstanding, the show cause notice dated 26. 9. 1994 was sent to the plaintiff under Army Rule 13a, whereby he was asked to reply to show cause why he should not be removed from service as he had not qualified the examination of young Officers Course twice within four years of his service. By letter dated 10. 2. 1995, the plaintiff was directed to resign, otherwise he would be compulsorliy retired. The plaintif
