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Subject: Comments on Original Application (OA) filed by ExLA (AH) Pardeep Kumar, No. 133410F, regarding dismissal from service and conversion to discharge with pensionary benefits – Submission of Comments.

 

 

Reference: Original Application No. 1651/2017 filed before the Hon’ble Armed Forces Tribunal (AFT), Principal Bench, New Delhi, and subsequent Writ Petition No. 14251/2024 filed before the Hon’ble High Court of Delhi.

 

 (a) Brief Facts of the Case

 

1. Enrollment and Service: 

   The applicant, Pardeep Kumar, was enrolled in the Indian Navy on 31.07.2002 as a Metric Entry Recruit (MER). He served for approximately 14 years and 1 month before his dismissal on 03.09.2016.

 

2. Incident Leading to Dismissal: 

    On 31.03.2016, the applicant applied for 15 days of leave (effective 06.04.2016) to attend a court hearing in his native place, where a criminal trial against him was ongoing. 

    His leave application was recommended by the Divisional Officer but remained pending until 1600 Hrs on 05.04.2016. The applicant was verbally permitted to proceed on leave but was later informed that his leave was not approved. 

    On 05.04.2016, the applicant absented himself from duty without leave and proceeded to Visakhapatnam Airport, where he boarded a flight to Delhi despite attempts by Provost Staff to stop him. 

    He surrendered to his unit on 12.05.2016 and was placed under close custody. 

 

3. Summary Trial and Punishment: 

    The applicant was tried summarily for offences under Sections 51 (Absence Without Leave), 68 (Contravention of Orders), and 74 (Prejudice to Good Order and Naval Discipline) of the Navy Act, 1957. 

    He pleaded guilty to Charges 1 and 2 but denied Charge 3 (creating a nuisance at a public place). 

    The Commanding Officer recommended punishment, which was enhanced by the Chief of the Naval Staff to dismissal from service, reduction in rank, and deprivation of Good Conduct Badges. 

 

4. Legal Proceedings: 

    The applicant filed OA No. 1651/2017 before the Hon’ble AFT, which was dismissed on 18.05.2022, with liberty to approach the Chief of the Naval Staff for conversion of dismissal to discharge. 

    The applicant submitted a review petition, which was rejected on 28.10.2022. 

    He then filed Writ Petition No. 14251/2024 before the Hon’ble High Court of Delhi, which was dismissed with liberty to approach the AFT. 

 

 

 (b) Preliminary Objections

 

1. Limitation: 

   The applicant has filed the OA beyond the statutory limitation period prescribed under Section 22 of the Armed Forces Tribunal Act, 2007. An application for condonation of delay has been filed, but the reasons for delay are not substantiated adequately. 

 

2. Maintainability: 

   The applicant has already exhausted his legal remedies by filing OA No. 1651/2017 and Writ Petition No. 14251/2024. The present OA appears to be a reiteration of the same grounds, which were previously dismissed by the Hon’ble AFT and the Hon’ble High Court. 

 

3. Merits of the Case: 

   The applicant’s dismissal was based on a fair and lawful summary trial, and the punishment was proportionate to the offences committed. The applicant’s past disciplinary record, including repeated instances of absence without leave and other offences, justifies the dismissal. 

 

 

 

 (c) Justification Towards Acceptance/NonAcceptance of the Averments Including 'Grounds for Relief'

 

1. Conversion of Dismissal to Discharge: 

    The applicant seeks conversion of his dismissal to discharge on sympathetic grounds, citing his 14 years of service and family responsibilities. 

    However, the dismissal was warranted due to the applicant’s repeated disciplinary violations and his failure to reform despite multiple warnings and punishments. 

    The Chief of the Naval Staff, after reviewing the case, rejected the request for conversion, as the applicant’s conduct was deemed incompatible with the standards of the Indian Navy. 

 

2. Grant of Pensionary Benefits: 

    The applicant claims entitlement to pensionary benefits, citing his 14 years and 1 month of service. 

    However, as per Navy Orders and Regulations, dismissal from service disqualifies an individual from receiving pensionary benefits. The applicant’s service falls short of the minimum 15 years required for pension eligibility, and no provision exists for condoning the shortfall in cases of dismissal. 

 

3. Reliance on Judicial Precedents: 

    The applicant has cited judgments such as S. Muthu Kumaran vs Union of India and ExSWR Satish Kumar Sharma vs Union of India to support his case. 

    These cases are distinguishable on facts, as they involved discharge under Army Rules and not dismissal under the Navy Act. The applicant’s dismissal was based on a summary trial and upheld by the Hon’ble AFT. 

 

4. Sympathetic Consideration: 

    While the applicant’s family circumstances are noted, the Indian Navy’s disciplinary requirements and the need to maintain high standards of conduct outweigh the applicant’s personal hardships. 

 

 

(d) ParagraphWise Comments

 

1. Paragraph 4.1 to 4.3: 

    The applicant’s claim that he was verbally permitted to proceed on leave is unsubstantiated. The leave application was pending, and the applicant absented himself without authorization. 

 

2. Paragraph 4.4 to 4.6: 

    The summary trial was conducted in accordance with the Navy Act, 1957, and the punishment was proportionate to the offences. 

 

3. Paragraph 4.7 to 4.9: 

    The Hon’ble AFT dismissed the applicant’s OA but granted liberty to approach the Chief of the Naval Staff, who rejected the request for conversion of dismissal to discharge. 

 

4. Paragraph 4.10 to 4.13: 

    The applicant’s reliance on judicial precedents is misplaced, as the facts of his case are distinct. His dismissal was based on a fair trial and upheld by the Hon’ble AFT. 

 

5. Grounds for Relief (Paragraph 5): 

    The grounds raised by the applicant lack merit, as his dismissal was lawful and justified. The request for pensionary benefits is not tenable under existing regulations. 

 

 

 (e) Attachment of Legible Copies of Policy Letters/Orders/Regulations

 

1. Navy Act, 1957: 

    Relevant sections (51, 68, 74) pertaining to the charges against the applicant. 

 

2. Navy Orders/Regulations: 

    Navy Order 06/2012 (Leave Regulations). 

    Regulations 127 & 132 of the Regulations for the Navy Part II. 

 

3. Summary Trial Proceedings: 

    Copy of the Summary Trial Record and Punishment Warrant. 

 

4. Rejection Letter: 

    IHQ MoD (Navy) letter No. DL/1374/1048 dated 28.10.2022, rejecting the applicant’s review petition. 

 

5. Judicial Precedents: 

    Copies of judgments cited by the applicant for reference. 

 

Conclusion: 

The applicant’s case lacks merit, and his dismissal was lawful and justified. The request for conversion of dismissal to discharge and grant of pensionary benefits is not tenable under existing regulations. It is recommended that the OA be dismissed.

 

 

PARAGRAPHWISE COMMENTS ON THE APPLICANT’S ORIGINAL APPLICATION (OA): 

 

 Paragraph 4.1 

Applicant’s Claim: The applicant was enrolled in the Indian Navy on 31.07.2002 and was posted at Ship Building Centre, Visakhapatnam, in 2016. 

Comment: No comment required. 

Reason: Factual details of enrollment and posting are acknowledged and not disputed. 

 

 Paragraph 4.2 

Applicant’s Claim: The applicant applied for 15 days of leave on 31.03.2016 to attend a court hearing. The leave was kept pending until 1600 Hrs. on 05.04.2016, and he was verbally permitted to proceed on leave. 

Comment: Denied. 

Reason: The claim of verbal permission is unsubstantiated. Navy regulations (Navy Order 06/2012 and Section 68 of the Navy Act, 1957) mandate written approval for leave. Absence without formal approval constitutes a breach of discipline. 

 

 Paragraph 4.3 

Applicant’s Claim: The applicant surrendered to his unit on 12.05.2016 and was placed under custody. 

Comment: No comment required. 

Reason: Factually correct, as per records. Custody was lawful under Section 83 of the Navy Act, 1957, due to unauthorized absence. 

 

 Paragraph 4.4 

Applicant’s Claim: The applicant underwent a Summary Trial, and the Chief of the Naval Staff enhanced the punishment to dismissal. 

Comment: No comment required. 

Reason: The Summary Trial was conducted per Sections 51, 68, and 74 of the Navy Act, 1957. The enhancement of punishment by the Chief of the Naval Staff is lawful under Section 15(1)(d) of the Navy Act. 

 

 Paragraph 4.6 

Applicant’s Claim: The applicant filed OA No. 1651/2017 challenging his dismissal. 

Comment: No comment required. 

Reason: Factually correct. The OA was dismissed by the Hon’ble AFT on 18.05.2022. 

 

 

 

 Paragraph 4.7 

Applicant’s Claim: The Hon’ble AFT dismissed the OA but granted liberty to approach the Chief of the Naval Staff. 

Comment: Denied. 

Reason: The Hon’ble AFT’s dismissal of the OA confirms the legality of the trial and punishment. The liberty granted was discretionary and does not imply merit in the applicant’s case. 

 

 Paragraph 4.8 

Applicant’s Claim: The applicant submitted a review petition under Section 163 of the Navy Act, which was rejected on 28.10.2022. 

Comment: No comment required. 

Reason: Procedurally correct. The rejection is final and binding under Section 163. 

 

 Paragraph 4.9 

Applicant’s Claim: The applicant filed Writ Petition No. 14251/2024 before the Hon’ble High Court, which was dismissed. 

Comment: No comment required. 

Reason: Factually correct. The dismissal by the Hon’ble High Court reaffirms the legality of prior proceedings. 

 

 Paragraph 4.10–4.13 

Applicant’s Claim: 

 The applicant seeks conversion of dismissal to discharge and pensionary benefits. 

 He argues that dismissal is too harsh, his service of 14 years and 1 month should qualify for pension, and family circumstances warrant sympathy. 

Comment: Denied. 

Reasons: 

1. Dismissal vs. Discharge: Dismissal is a statutory punishment under the Navy Act for grave misconduct. Conversion to discharge is impermissible as it would undermine disciplinary rigor. 

2. Pension Eligibility: Pension requires a minimum of 15 years of qualifying service (Navy Pension Regulations). The applicant’s service (14 years, 1 month) falls short, and dismissal disqualifies him from pension. 

3. Judicial Precedents: Cases cited (e.g., S. Muthu Kumaran) are distinguishable. The applicant’s repeated misconduct (5 past punishments, FIR under IPC) justifies dismissal, unlike cases involving minor infractions. 

4. Sympathy vs. Discipline: Family hardships cannot override statutory provisions or compromise naval discipline. 

 

 Grounds for Relief (Paragraph 5): 

 

A. Arbitrary Denial of Pension 

Comment: Denied. 

Reason: Dismissal statutorily bars pensionary benefits. No provision exists for condoning shortfall in such cases. 

 

B. Reliance on ExSWR Satish Kumar Sharma 

Comment: Denied. 

Reason: The cited case involved discharge under Army Rules, not dismissal under the Navy Act. The applicant’s misconduct is far more severe. 

 

C. Reliance on S. Muthu Kumaran 

Comment: Denied. 

Reason: The Supreme Court modified punishment in Muthu Kumaran due to unique circumstances (single offence). The applicant’s repeated offences and poor service record render the case inapplicable. 

 

D. Reliance on Union of India vs. Ex LAC Nallam Shiva 

Comment: Denied. 

Reason: The case involved a young airman with no prior offences. The applicant’s disciplinary history negates parity. 

 

E. 14 Years of Service in Harsh Conditions 

Comment: Denied. 

Reason: Service duration does not override statutory penalties for misconduct. 

 

F. Age and Employment Prospects 

Comment: Denied. 

Reason: Dismissal is a statutory consequence of misconduct. Employment prospects are irrelevant to legal validity. 

 

G. Leave Taken for Court Hearing 

Comment: Denied. 

Reason: Absence without approved leave is a breach of discipline, regardless of the reason. 

 

 Paragraph 6 (Remedies Exhausted) 

Comment: No comment required. 

Reason: Factually correct but does not establish merit. 

 

 

 Paragraph 7 (Matter Not Previously Filed) 

Comment: No comment required. 

Reason: Procedural assertion, irrelevant to merits. 

 

 

 Relief Sought (Paragraph 8): 

 

A. Quash Order Dated 28.10.2022 

Comment: Denied. 

Reason: The order is lawful and reasoned. 

 

B. Convert Dismissal to Discharge 

Comment: Denied. 

Reason: Discharge is not a substitute for statutorily mandated dismissal. 

 

C. Grant Pensionary Benefits 

Comment: Denied. 

Reason: Dismissal disqualifies pension; no shortfall condonation permissible. 

 

D. Any Other Relief 

Comment: Denied. 

Reason: No grounds for alternate relief. 

 

Final Note: 

The applicant’s OA is devoid of merit. The dismissal was lawful, proportionate, and compliant with the Navy Act, 1957, and regulations. Judicial precedents cited are inapplicable. The reliefs sought are statutorily barred. 

 

 

 

Judge Advocate General (Navy) 

Integrated Headquarters of Ministry of Defence (Navy) 

New Delhi 

 

Date: [Insert Date] 

 

Attachments: 

1. Navy Act, 1957 (Sections 51, 68, 74). 

2. Navy Pension Regulations. 

3. Summary Trial Proceedings.                                         

4. Rejection Order (DL/1374/1048 dated 28.10.2022). 

5. AFT Order dated 18.05.2022.