Delhi High Court Confirms Employee's Discharge For Failing To Withdraw Within Time His Voluntary Unwillingness To Serve

A division bench of the Delhi High Court comprising of Justice Rekha Palli & Justice Shalinder Kaur, while deciding a writ petition held that employee's discharge from service was legal as he failed to withdraw within time period his voluntary unwillingness to serve.

Background Facts

The employee joined the Indian Navy as a Direct Entry Diploma Holder (DEDH) on August 6, 2006, for a 10-year contract, with the possibility of a 5-year extension based on conditions. In 2012, while still within this period, he was selected for a project on the INS Vikramaditya. However, on July 2, 2012, he chose not to participate in this project and knew this decision would stop him from being considered for future re-engagement.

On July 17, 2014, the Navy introduced a policy that allowed sailors who had previously opted out to change their minds and apply for re-engagement by July 31, 2014. The employee claimed that he did submit his willingness under this policy, backed by recommendations from his Commanding Officer and Goa Naval headquarters. Despite this, his request to change his decision was rejected on December 18, 2014, and again on June 24, 2015.

The employee was officially released from service on August 31, 2016. Over a year later, on October 17, 2017, he asked to withdraw his earlier decision and requested either to be reinstated or receive pension benefits. He argued that he hadn't been informed of the 2014 policy in time. Despite sending multiple reminders from 2017 to 2019, his request wasn't addressed.

On November 25, 2019, the employee took his case to the Armed Forces Tribunal (AFT), asking to reverse the rejections and to be re-engaged or receive pension benefits. The respondents argued that the employee had delayed filing his application and that the re-engagement policy didn't apply, as his unwillingness was specific to a deputation. The AFT dismissed employee's case, saying it was filed too late and didn't have merit, as the policy didn't apply to his situation.

The employee filed a petition in the Delhi High Court, challenging the Armed Forces Tribunal (AFT) decision and repeating his request for re-engagement or pension benefits based on his service record.

It was argued by the employee that he wasn't informed about the Navy's July 17, 2014 policy, which allowed sailors who had earlier said they didn't want to be re-engaged to change their mind by July 31, 2014. He claimed that if he had known about this policy in time, he would have withdrawn his unwillingness to serve on INS Vikramaditya and applied for re-engagement.

The employee also stated that, even though he learned about the policy late, he still submitted his willingness to be re-engaged according to the policy. His Commanding Officer and Goa Naval Area Headquarters had supported his request, but it was unfairly rejected without proper consideration.

He further explained that his unwillingness to serve was specifically related to the INS Vikramaditya project, and the rejection of his request did not take into account his later willingness to continue in service. The AFT had ruled that his application was too late, but the employee argued that the delay wasn't his fault. He blamed the Navy for not informing him of the policy in time and for ignoring his request to reconsider.

Additionally, he argued that, even if re-engagement wasn't possible, he should still be entitled to pension benefits based on his 10 years of service.

On the other hand, the Navy argued that the employee had voluntarily submitted his unwillingness to be re-engaged, well before the July 2014 policy was issued. They contended that employee had made this decision knowingly, in response to the Navy's needs, including his assignment to INS Vikramaditya, and employee's discharge was a result of his own choice.

The Navy also contended that the July 17, 2014 policy had been communicated properly within the Navy, giving personnel until July 31, 2014, to change their decision. They argued that the employee did not submit his willingness within this time and could not claim he wasn't aware of the policy. Finally, the Navy maintained that the employee's petition was time-barred, as he didn't approach the AFT within the required time period.

Findings of the Court

It was noted by the court that the employee had voluntarily chosen not to continue in service, and this decision was made before the Navy's policy of July 17, 2014. It was further pointed out by the court that, even though the employee knew he could change his decision by July 31, 2014, he didn't do so in time.

It was found that the Navy had properly communicated the policy, giving personnel enough time to reconsider. The employee's claim that he didn't know about the policy wasn't convincing, as the court was satisfied that it had been well-communicated.

The court supported the Navy's rejection of the employee's request for re-engagement. It was noted by the court that the employee was discharged on August 31, 2016, but only submitted a request to reconsider this on October 17, 2017, which was too late.

The previous ruling of C. Jacob v. Director Geology & Mining & Anr, was referenced to by the court which stated that claims made too late or after long delays can't be revived, and that those who don't act on their rights promptly cannot expect special treatment.

Because the employee voluntarily expressed his unwillingness and didn't take timely action to withdraw it, his discharge was considered legal. The AFT's decision was upheld by the court, which had dismissed the employee's application for being too late and without merit. Regarding pension benefits, it was found by the court that the employee hadn't served long enough to qualify for a pension under Navy regulations. As a result, his claim for pension benefits was also dismissed.

With these conclusions, the writ petition was dismissed.

Title: EX CHAA MOHAMMED ZULKARNAIN, 550032-Z v. UNION OF INDIA & ORS.

Citation: 2024 LiveLaw (Del) 1077

Case No. : W.P.(C) 12837/2024

Counsel for the Petitioner : Pallavi Awasthi, Advocate

Counsel for the Respondents : Neeraj, SPC with Vedansh Anand, GP; Akarshan Agarwal & Soumyadip Chakraborty, Advocates for R-1 to R-4.

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