* IN THE HIGH COURT OF DELHI AT NEW DELHI + WP(C) No.474/2012 % Date of Decision: 23.01.2012 K.L.Sharma …. Petitioner Through Mr.Sukhjinder Singh, Advocate.

Versus Union of India & Ors. …. Respondents Through Mr.Ravinder Aggarwal, Advocate CORAM:

HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE J.R.MIDHA ANIL KUMAR, J.

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1. The petitioner has sought the quashing of the communication dated 23rd February, 2006 and 7th December, 2006 and communication dated 10th December, 1975 discharging the petitioner from the Naval service on the ground that his services were no longer required. The petitioner has also sought the quashing of the order of the Tribunal dated 22nd July, 2011 dismissing the original application of the petitioner in T.A.No.328 of 2010. The petitioner has further prayed for a writ of mandamus for the grant of pensionary benefits, for the service period rendered by him as if without a break till his superannuation from the service, in the rank of Master Chief Petty Officer, 1st Class, the rank to which he would have arisen had he not been discharged or such other pensionary benefits.

2. Some relevant facts to comprehend the disputes are that the petitioner was enrolled as an Artificer Apprentice in terms of Sections 11 & 12 of the Navy Act, 1957 on 18th August, 1962 and after undergoing training from 18th August, 1962 to 19th August, 1966, the petitioner was promoted to the rank of Aircraft Artificer 5th class. Finally the petitioner was promoted to the rank of Aircraft Artificer

2nd class i.e. Chief Petty Officer on 9th July, 1974.

3. However, according to the petitioner he was, illegally and arbitrarily discharged from the Naval service on 10th March, 1976 on the ground of “Services no longer required”.

4. The petitioner contended that his discharge from the service on account of “services no longer required” is in complete violation of Section 15 (2) (b) of the Navy Act, 1957 read with Regulations 279, Regs. Navy Part III (Statutory) since it was without administering any warning or counseling him and without issuing any show cause notice, though his conduct at that point in time was “very good”, since he had received many “Good Conduct Badges”.

5. The petitioner did not challenge his discharge from 10th March, 1976 up till 2005, which is when he started sending representations to the respondents alleging that he had been discharged arbitrarily. He thereafter, filed a writ petition in the year 2007 in the High Court of Delhi which was subsequently transferred to the Tribunal and was registered as T.A.No.328/2010.

6. The petition was contested by the respondents on the ground of delay and laches. The respondents also asserted that they did not have any record pertaining to the petitioner‟s service, as it had already been weeded out.

7. The petitioner relied on Union of India & Ors. v. Tarsem Singh, (2009) 1 SLJ 371 (SC); S.S.Phogat v. Chief of Naval Staff & Ors., (1999) LAB. I.C 1512; Brijnath Pandey v. State of UP & Ors., (2001) 9 SCC 398 to contend that the delay in the present matter would not affect his right to claim pensionary benefits and that the delay does not in any case affect the rights of any third party.

8. The petition was contested by the respondents on the ground that there had been a delay of 31 years and that no explanation had been given by the petitioner as to why he had remained silent for all this while. The respondents also contended that the petitioner had been persistently reported throughout his career as being of “Below Average” intelligence and initiative and requiring constant supervision. It was also urged that on account of the fact that the conduct of the petitioner was below average and that his professional competence was not upto the mark, on the recommendation of the Commanding Officer, INS, Vikrant, the petitioner was discharged from the service by order dated 10th December, 1975 pursuant to the approval granted by the competent authority i.e. the Chief of the Naval Staff. The responde