Capt. Desh Raj Lamba vs Union of India (UOI)

Ashok Kumar Mathur, J.—Petitioner by this writ petition has prayed that he may be paid subsistence allowance and his appeal which is pending with the Chief of Army Staff may be disposed of expeditiouly.

Petitioner is regularly Commissioned Officer in the Army. He was commissioned in the Army Ordinance Corps w.e.f. 14-11-71 Petitioner was down graded w.e.f. 5-3-1983 and was placed low medical category as he was suffering from Alchohol Dependence syndrome: The petitioner was sent to the Military Hospital for final review on 20-9-1985 in pursuance of the order 12-9-1985, issued by Major, OIC, Hd. Q., Section for COO. Petitioner was discharged from the Military Hospital on 16-12-1985 and it was found that petitioner is not fit for army duties and it was directed that he should be readmitted in case of relapse. With these remarks, petitioner was sent to unit. The petitioner reported at his unit on 16-12-1985. The petitioner was sent on temporary duty to H-Q. 61(1), Sub-area (Indep) Sig. No. A-1694 for promulgation of General Court Martial Sentence on 17th December, 1985 and he returned from there on 18th December, 1985 and reported to unit on 19th December, 1985. In pursuance of the medical category he was not assigned any duty. Petitioner aggrieved against the medical categorisation preferred an appeal to the Chief of Army Staff which is still pending, petitioner also sent telegraphic notice for expeditious disposal of the appeal but without any result, petitioner was informed by the order (Ex. 5) that he will not be entitled to any pay or allowance after 27-3-1986. It was further mentioned that further extension of leave can be sanctioned by Adj General. In these circumstances, petitioner approached this Court by filing present writ petition. A return has been filed by the respondent and the respondent has by any large not disputed the facts the respondent has also admitted that appeal filed by the petitioner is still pending. So far as pay and allowances are concerned, it has been submitted that petitioner is not entitled to further pay and allowance beyond 27-3-1986 and at least further period of three months after sanction of the Adj. General.

Mr. Bora, learned Counsel for the petitioner, submits that there is no justification for withholding the appeal of the petitioner which is pending with Chief of Army Staff since 18-1-1986. He submits that neither he has been discharged from service nor appeal has been decided. He further submits that petitioner''s pay and allowances have been withheld from 27-3-1986 and he has been still confined in the unit and so much so even subsistence allowance is not paid.

The grievance of the petitioner appears to be genuine. When the respondent has found that petitioner is not medically fit and against that order he has filed appeal the appeal is pending for the last more than 6 months, he has not been paid his pay and allowances after 27-3-1986, this state of affairs cannot be allowed to continue. When the petitioner is still in the unit, he has not been discharged, then either petitioner should be paid his full pay and allowance or atleast subsistence allowance so as to survive.

Both the learned Counsel are not in position to point out that such contingency is covered under which rule. Thus, in the facts and cricumstances of this case I direct that the petitioner should be paid subsistence allowance at the rate admissible to furlough after 27-3-1986. Respondents are directed to dispose of the appeal of the petitioner within a period of three months from today.

The writ petition is allowed. No order as to costs.