* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7219/2014
HITESH BHATNAGAR
..... Petitioner
Through: Mr. Indra Sen Singh and Mr.
Pankaj Sharma, Advocates
versus
UNION OF INDIA & ORS
..... Respondent
Through: Dr. Ashwani Bhardwaj, Ms. Saroj
Bidawat, Advocates for respondent
No. 1 to 4.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 28.10.2014 KAILASH GAMBHIR, J. (ORAL)
1. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 3 rd September 2014 passed by the learned Armed Forces Tribunal.
2. The grievance raised by the petitioner in the instant petition is that the learned Armed Forces Tribunal has failed to appreciate the fact that the petitioner had withdrawn the Writ Petition being W.P. (C) No. 7102/2008 due to misrepresentation on the part of the respondents that W.P.(C) 7219/2014 Page 1 of 5 the Officer who was the Initiating Officer apropos the two confidential reports of the petitioner was a Joint Director, but in fact he was a Deputy Director, thereby incompetent to act as an Initiating Officer. The learned counsel for the petitioner further submits that the said misrepresentation by the respondents came to the petitioner's knowledge sometime in the year 2004 and that he had no means to gain access to such information prior to that. The contention raised by the learned counsel for the petitioner is that it is for no other reason save the misrepresentation, that the said Writ Petition was withdrawn by the petitioner. Another contention raised by the learned counsel for the petitioner is that the principle of res judicata as enshrined under Section 11 of the Code of Civil Procedure, 1908 will not come in the way of the petitioner to seek his remedy by filing the petition under Section 14 of the Armed Forces Tribunal Act, 2007 under which an independent legal remedy was available to him to challenge the correctness and validity of the two ACRs for the period 1.9.2002 to 31.08.2003 and 1.9.2003 to 14.4.2004. To support his argument, the learned counsel for the petitioner has placed reliance on the following two judgments of the Apex Court:-
1. Sarguja Transport Service vs. State Transport Appellate W.P.(C) 7219/2014 Page 2 of 5 Tribunal, M.P. Gwalior and others, (1987) 1 SCC 5;
2. Kandapazha Nadar and others vs. Chitraganiammal & Ors., (2007) 7 SCC 65.
3. The learned counsel for the petitioner also submits that the learned Armed Forces Tribunal did not appreciate the fact that the remedy of the petitioner to file another Writ Petition under Article 226 of the Constitution of India on the same issue may be barred but not filing an independent petition under Section 14 of the Armed Forces Tribunal Act, 2007, which provides the complete mechanism to adjudicate the grievances raised by the petitioner concerning the said two ACRs and also the ACRs covering the period from 1.1.1995 to 30.9.1995.
4. We have heard the learned counsel for the petitioner and perused the judgments relied upon by the petitioner.
5. Indisputably, the petitioner had challenged the correctness and validity of the said ACRs for the period 1.9.2002 to 31.08.2003 and 1.9.2003 to 14.4.2004 and one of the grounds of challenge raised in the Writ Petition was that the Initiating Officer Lt. Col. W.S. Rana being a Deputy Director, was junior in rank as well as in seniority, and was therefore incompetent to initiate the ACRs of the petitioner. This Writ Petition was withdrawn by the petitioner which was his conscious W.P.(C) 7219/2014 Page 3 of 5 decision after the original records were perused by the Court concerning the grading of the petitioner by the IO/ RO, therefore, the said withdrawal cannot be taken as a withdrawal simplicitor but withdrawal by the petitioner after the Court felt satisfied with regard to the gradings given to the petitioner by the IO/RO. The said two judgments cited by the learned counsel for the petitioner would not be of any help in so far as the facts of the case in hand are concerned.
6. During the course of hearing, the Court had posed a specific query to the petitioner and his counsel as to whether Lt. Col. W.S. Rana was officiating as a Joint Director on the relevant date when he acted as an Initiating Officer with regard to the said two ACRs or if he was posted as a Deputy Director. The response to the said question was in the affirmative for Joint Director. If this was the position, then where lies the question of misrepresentation of any fact by the respondent, at the time of hearing of the earlier Writ Petition filed by the petitioner? The learned Armed Forces Tribunal was right in holding that the petitioner also did not take any steps to seek review of the order dated 29.09.2008 passed by the High Court, even if he had noticed some kind of misrepresentation made by the respondents at a subsequent stage. We also cannot lose sight W.P.(C) 7219/2014 Page 4 of 5 of the fact that the petition was filed before the learned Armed Forces Tribunal in the year 2013, although the Armed Forces tribunal had come into being in the year 2008.
7. In view of the aforesaid circumstances, we do not find any reason to interfere with the order passed by the learned Armed Forces Tribunal. There is no merit in the present petition therefore, is dismissed. No costs.
KAILASH GAMBHIR, J NAJMI WAZIRI, J OCTOBER 28, 2014 pkb W.P.(C) 7219/2014 Page 5 of 5