Karnataka High Court
Shodalamuthu Elankamony vs The Ministry Of Defence on 10 October, 2012
Bench: N.Kumar, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 10TH DAY OF OCTOBER, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
W.A.NO.5335/2011
C/W
W.A.NO.4190/2012 (S-R)
W.A.NO.5335/2011:
BETWEEN :
SHODALAMUTHU ELANKAMONY
AGED ABOUT 70 YEARS,
S/O LATE CHELLAMUTHU
R/AT "SUGANTHY VILLA",
# NO.333/22, SUBBANAPALYA
SAMPANGI ROAD,
M S NAGAR P.O.,
BANGALORE 560 033 ..APPELLANT
(BY SRI.SACHIN B S, ADVOCATE FOR
M/s.DHARMASHREE ASSOCIATES)
2
AND :
1 THE MINISTRY OF DEFENCE
BY ITS SECRETARY- DEFENCE
GOVERNMENT OF INDIA
NEW DELHI
2 THE MAJOR SENIOR RECORD OFFICER
OFFICE OF THE COMMANDANT
RECORDS OFFICE (OFFICER-IN-CHARGE)
3 COMMANDANT
MEG (MADRAS ENGINEERING GROUP)
REGISTERED OFFICE
BANGALORE 560 042. ..RESPONDENTS
(BY SRI.Y.D.HARSHA, CGC FOR R1-R3)
THIS WRIT APPEAL IS FILED UNDER SECTION
4 OF THE KARNATAKA HIGH COURT ACT, 1961
PRAYING TO SET ASIDE THE ORDER DATED
10.03.2011 PASSED BY THE LEARNED SINGLE
JUDGE IN WRIT PETITION NO.9307/2010 (S-R).
W.A.No.4190/2012:
BETWEEN :
SRI SHODALAMURTHY ELANKAMONY
AGED ABOUT 70 YEARS
S/O LATE CHELLAMUTHU
R/A "SUGANTHY VILLA"
# NO.333/22, SUBBANAPALYA
3
SAMPANGI ROAD
M S NAGAR P.O.,
BANGALORE -560 033 ..APPELLANT
(BY SRI.SACHIN B S., ADVOCATE FOR
M/s.DHARMASHREE ASSOCIATES)
AND :
1 THE MINISTRY OF DEFENCE
BY ITS SECRETARY- DEFENCE
GOVERNMENT OF INDIA
NEW DELHI
2 THE MAJOR SENIOR RECORD OFFICER
OFFICE OF THE COMMANDANT
RECORDS OFFICE (OFFICER-IN-CHARGE)
3 COMMANDANT
MEG (MADRAS ENGINEERING GROUP)
REGISTERED OFFICE
BANGALORE-560 042. ..RESPONDENTS
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER DATED 13.04.2011 PASSED BY
LEARNED SINGLE JUDGE IN WRIT PETITION
NO.9307/2010(S-R) AND CONSEQUENTLY ALLOW
MISC.W.NO.3997/2011 FILED BY THE APPELLANT
FOR RECALLING APPLICATION.
THESE WRIT APPEALS COMING ON FOR
4
PRELIMINARY HEARING THIS DAY THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
W.A.5335/2011 is filed for setting aside order dated 10.03.2011 passed by learned Single Judge dismissing W.P.9307/2010 for non prosecution. After the dismissal of writ petition for non prosecution an application was filed to recall the said order. Said application came to be dismissed on 13.04.2011. Against said order W.A.4190/2012 is filed. Therefore both these writ appeals are taken up for consideration together. In order to find out whether there is any merit in the writ petition before we can consider the applications for recalling, we heard the learned counsel for appellant on merits of writ petition.
2. Case of the petitioner is he joined Indian Army 5 on 25.02.1963 as a Soldier. He also participated in Bangala-Pak war in Samba Sector in Jammu and Kashmir attached with 5 engineering regime. He was released from service on the ground `Fit' Medical category `EEE' in the year 1972. Grievance of the petitioner is said order of termination was not communicated to him even after twenty years. Therefore first representation was made by him on 25.11.2009. In reply to said representation a reply was given on 07.01.2010 stating that he was discharged from services on 09.06.1972, before fulfilling the terms and condition of his enrollment under Rule 13(3) item (111)(111) of Army Rules, 1954. Therefore he is not eligible for grant of pensionary benefits including disability pension in terms of Para 173 and Para 8 of Page No.166 of Pension Regulation for the Army, 1981 (Part-1). Hence his case was closed. Infact the reply was sent in pursuance to representation made by 6 petitioner on 25.11.2009 considering his request for pension. It is thereafter he preferred writ petition seeking for pensionary benefits. From the aforesaid facts it is clear from 1972 till 2009 petitioner has slept over the matter. The delay stares on his face. Having regard to the number of years of service put in and the grounds on which he was removed from service, in terms of provisions of law mentioned, he is not entitled to pension. Therefore they were justified in declining to grant pensionary benefit. Therefore petition is devoid of merits both on the ground of delay and laches as well as on merits.
In the light of what we have stated above we allow both writ appeals. Set aside the order of learned Single Judge dated 10.03.2011 dismissing writ petition for non prosecution and order dated 13.04.2011 where it declined to recall the order dismissing the writ petition 7 for default.
For the reasons stated above we dismiss writ petition 9307/2010 as it is devoid of merits.
Sd/-
JUDGE Sd/-
JUDGE SBN