Shri Asa Ram vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1541 Del

JUDGMENT

Reva Khetrapal, J.

1. By filing the present review petition, the petitioner seeks review of the judgment and order dated 29th March, 2006.

2. The facts of the case as set out by the petitioner are as follows:

(i) Naik Rajinder Singh Godara was facing court martial. On the crucial day, i.e., 8th March, 1984, all the members of the 15th Jat Battalion had been ordered to assemble in connection with the court martial of the said Rajinder Singh Godara, including the petitioner who was a sepoy in the 15th Jat Battalion. At that time, one Ranbir Singh, sepoy, who had brought the said Rajinder Singh Godara from army hospital after his medical check up, opened fire and in that fire Capt. S.K. Mitra was hit and he died at the spot. Court martial proceedings were initiated against Sepoy Ranbir Singh for the murder of Capt. S.K. Mitra. During the course of these proceedings, the petitioner and three others were cited as witnesses.

(ii) After the court martial proceedings were concluded, a show cause notice dated 21st November, 1984 under Army Rule-13(3) III(v) was served on the petitioner and the aforesaid three other witnesses. It was alleged in the said notice that the petitioner, who was on the sentry duty at the Unit Quarter Guard, did not take any action to apprehend sepoy Ranbir Singh when he fired and killed Capt. S.K. Mitra of the Unit. Further, when examined by the court as a witness, he told lies and gave evasive answers. In view of intentional dereliction and evasive answers in the general court martial proceedings, his further retention in the army was not considered desirable.

(iii) The petitioner filed reply to the above show cause notice, denying the allegations levelled against him and contending, inter alia, that he had in fact alerted the guard and had performed his duty, and further, that he did not tell any lie in the general court martial proceedings. The respondents, after considering the aforesaid reply to the show cause notice, vide orders dated 9th December, 1994 held that the reply furnished by the petitioner was not convincing and that the services of the petitioner were no longer required in the Army. The petitioner was dismissed from service under Rule 17 of the Army Rules read with Section 20(3) of the Army Act.

(iv) Subsequently, it was brought to the notice of the respondents that the show cause notice having been issued under Rule 13(3) III(v) of the Army Rules, 1954, the dismissal order was not proper. Thereupon, the petitioner was given discharge certificate, wherein it was stated that he had been discharged from service under Rule 17 of the Army Rules and Section 20(3) of the Army Act effective from 12th March, 1985.

(v) On receipt of the said discharge certificate dated 12th March, 1985, the petitioner sought legal advice, resulting in issuance of a legal notice to the respondents dated 12th April, 1985, requesting the Brigade Commander to supply him with all relevant documents, including whole of the summary evidence and whole of court martial proceedings held against Sepoy Ranbir Singh in the murder case of Capt. S.K. Mitra, so as to enable him to file an effective appeal under Section 26 of the Army Act. It was contended by the petitioner in the said legal notice that since he had no documents, he had been denied the opportunity of giving an effective reply, and that documents were necessary in order to find out as to why the Commanding Officer had found him guilty of telling lies.

(vi) Reply was received by counsel for the petitioner to the said legal notice dated 23rd April, 1985 in which it was only stated that appropriate action had been taken against the petitioner "in the interest of service and military discipline in an operational area". The petitioner accordingly submitted a statutory appeal to the respondents under Section 26 of the Army Act, challenging the order of dismissal from service dated 9th December, 1984 and the discharge certificate dated 12th March, 1985. The respondents having failed to decide the statutory appeal, the present writ petition was filed by the petitioner impugning the orders dated 9th December, 1984 and 12th March, 1985.

3. The present writ petition was admitted by a Division Bench of this Court by issuing Rule on 9th December, 1986. On 29.1.1990. However, it was brought to the notice of the Division Bench that the point in question was covered by a judgment of this Court in Civil Writ Petition Nos. 568 to 570 of 1986. The Division Bench accordingly ordered for summoning of the said records. In the meanwhile, on 8th August, 2002, learned senior counsel for the petitioner submitted before the Division Bench that as persons similarly situate had been given retiral benefits, the petitioner would be satisfied if the impugned order was set aside and retiral benefits were directed to be given to the petitioner. After recording the said submission of learned senior counsel for the petitioner, the Division Bench adjourned the matter at the request of learned Counsel for the respondents, who submitted that some time was necessary to consider as to whether the petitioner was similarly situate to those whose writ petitions had been allowed. Thereafter, the matter was adjourned from time to time before different Division Benches of this Court and eventually came up for hearing before this Bench on 29th March, 2006.

4. In the course of hearing of the writ petition on 29th March, 2006, our attention was drawn to order dated 23rd May, 1986 which reads as follows:

23.5.86:

Present: Mr. G.D. Gupta for the petitioner

Mr. R.K. Anand for the respondent

CW 1239/85

Counsel for the petitioner points out that he has filed an appeal against the order of discharge. It also appears that for the first time in the appeal the petitioner had alleged the show cause was not specific regarding the nature of the lies uttered by the petitioner for which action has been taken against him. We find from the pleadings that an appeal has been filed against the order of discharge. Counsel for the respondents is not in a position to state whether this appeal has been disposed of or not. In any event, in view of the contention above mentioned, it will be open to the respondents to give an opportunity to the petitioner, give him the necessary material and dispose of the matter, either afresh or by way of review, if necessary.

Adjourned to 22nd August, 1986.

S. RANGANATHAN, J.

B.N. KIRPAL, J.

May 23, 1986

5. In the backdrop of the aforesaid order, it was contended before us by counsel for the respondents that since the impugned order which is under challenge in this writ petition was substituted by a fresh order discharging the petitioner from service, nothing survives in this writ petition. It was further submitted that the petitioner had received gratuity and other consequential benefits after passing of fresh order of discharge against him. This Bench relying upon the statement of counsel for the respondents, accordingly, by its order dated 29th March, 2006, held as follows:

Since the impugned order which is under challenge in this writ petition was substituted by a fresh order discharging the petitioner from service, nothing survives in this writ petition. Apparently also, the petitioner has received gratuity and other consequential benefits since the fresh order of discharge was passed against him. In case the petitioner has received the benefits arising out of the order of discharge without any protest, the said order has become final and binding upon him. If, however, the petitioner has not been informed of supersession of the order of dismissal and substitution of the said order by a fresh order discharging him from service and if the petitioner is not compensated and has derived no benefit out of the order of discharge, in that event it shall be open to the petitioner to exercise his option to receive such benefit or to take recourse to appropriate remedy which is statutory or otherwise in nature and the same can be availed of by him in accordance with law.

This writ petition is disposed of in terms of the aforesaid order".

6. Thus, the writ petition was disposed of on the premise that a fresh order of discharge had been passed by the respondents affording retiral benefits to the petitioner. Review petitioner contends before us through learned senior counsel, who was present at the time of passing of the aforesaid order, that no fresh order of discharge has been passed by the respondents affording the petitioner any retiral benefits, though it is admitted that the petitioner has received some gratuity. It is urged that the earlier discharge order passed against the petitioner which is dated 12th March, 1985, is punitive in nature and the petitioner has not been given any retiral or consequential benefits on his superannuation. It is further urged that the respondents should have in all fairness re-considered the case of the petitioner in the light of the decision of this Court in W.P.(C) Nos. 568-570/1985 and passed orders superseding the earlier order of dismissal of the petitioner from service and his subsequent discharge from service on 12th March, 1985.

7. In the course of hearing, it was not disputed by Ms. Rekha Palli, counsel for respondents that the case of the petitioner is pari materia with the case of the petitioners before Hon'ble Mr. Justice B.N. Kirpal (as His Lordship then was), in WP(C) Nos. 568-570/1985, decided on 2nd March, 1987.

8. The relevant extract of the said order dated 2nd March, 1987 is reproduced hereinunder:

The only contention which has been raised by the leaned counsel for the petitioners is that the charges against the petitioners were vague inasmuch as it was not known as to how the commanding Officer had come to the conclusion that they had told lies during the Court Martial proceedings or how could it be said that the answers given by them were evasive....

...In my opinion the submission of the learned Counsel for the petitioners is correct. The show cause notice nowhere indicates as to what are the lies, which were told by the petitioners, and what were the evasive answers. The charge leveled in the show cause notice could have been substantiated by attaching therewith at least the extracts of the Court Martial proceedings and findings wherein the said conclusion of that court might have contained....

...Learned Counsel for the respondents states that the respondents are prepared to give another opportunity to the petitioners to represent their case. This opportunity can be effective only if the petitioners are told about the case, which they are required to meet, the learned Counsel for the respondents states that the fresh opportunity, which is granted, will be full and effective....

...The only relief which can be granted to the petitioners is that the respondents are directed to furnish to the petitioners, within four weeks from today, full particulars of the allegations against the petitioners and the petitioners shall be given an opportunity of filing a representation against the same within 3 weeks of the receipt of the said particulars. Thereafter the respondents will be at liberty to pass such orders as they may deem fit. If the decision so taken is against the petitioners, then the respondents would be at liberty to give effect to the discharge certificate and thereupon the interim orders issued would stand automatically vacated....

9. In view of the fact that counsel for the respondents does not dispute that after the decision of 12th March, 1985 no fresh orders have been passed by the respondents affording retiral benefits to the petitioners or otherwise, and the statutory petition of the petitioner is still pending, we deem it expedient to recall our orders dated 29th March, 2006 which were passed relying upon the statement made by counsel for the respondents that fresh orders had been passed on consideration of the appeal of the petitioner. We further direct the respondents to furnish to the petitioner, within four weeks from today, full particulars of allegations against the petitioner and the petitioner shall be given opportunity of filing representation against the same within three weeks of the same. Thereafter, the respondents will be at liberty to pass such orders as they deem fit and proper. Needless to state that this will be without prejudice to the right of the petitioner to file a fresh writ petition, if so advised, if an adverse order is passed finally against him.

10. Review petition stands disposed of in the above terms.