Ex. Hav. Army Education Corps ... vs Union Of India & Anr.
2008 Latest Caselaw 1395 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          WP (C) No.1549 of 1997


%                                     Date of decision: 20.08.2008


EX. HAV. ARMY EDUCATION
CORPS RAJESH KUMAR                                 ...PETITIONER


                           Through:     Mr.Ramji Srinivasan, Sr. Adv.
                                        with Mr.Harsh Kaushik and
                                        Mr.Anshu Mahajan, Advocates

                                  Versus

UNION OF INDIA & ANR.                              ...RESPONDENTS

                           Through:     Mr.Gaurav Duggal, Advocate
                                        for UOI

                                        Ms.Ruchi Sindhwani, Advocate
                                        for R-3.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?           Yes

2.        To be referred to Reporter or not?            Yes

3.        Whether the judgment should be                Yes
          reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. The petitioner was enrolled in the Army Education Corps

on 03.06.1992. The petitioner had already filled in a

application form on 29.05.1992 for the post of Sub

Inspector in Delhi Police but this fact was apparently not

disclosed by the petitioner while enrolling with the Army.

The petitioner while undergoing training received a call

for the written examination to be held for recruitment to

the post of Sub Inspector in the Delhi Police on

26.07.1992 (which was a Sunday) and claims that with

the prior permission of the Subedar Major In Charge of

his company/unit, he went to write the examination at

New Delhi. There is however nothing on record to show

such a permission having been obtained by the

petitioner. The petitioner claims to have again applied

for leave to appear in the interview and physical

endurance test, which was recommended by the

Company Commander. The petitioner left the station on

18.02.1993 and joined back on 25.02.1993 after

appearing for the said test. The stand of the Army is

that the petitioner absented himself from the duty from

19.02.2003 to 23.02.2003 for a period of four days and

on re-joining pleaded guilty to the offence of absence

from duty without leave. The petitioner was awarded a

punishment of seven days fine by the Officer

commanding the troops and the petitioner accepted the

said punishment without any further challenge.

2. The petitioner successfully completed the military

training at AEC Training College and Centre and a posting

order was issued whereby the petitioner was to fill up the

existing vacancy of AEC Instructor at 12 J&K Rifles. The

petitioner was issued a movement order dated

20.07.1993 with a free railway warrant whereby he was

dispatched on 27.07.1993 with the instructions to report

to Adjutant 12 J&K Riles on 31.07.1993. The petitioner,

however, pleaded that he had been declared successful

in the examination to the recruitment to Delhi Police on

03.06.1993 and had applied for discharge to the

Commandant, AEC on compassionate grounds as his

family genuinely required his presence and the post of

Sub Inspector with the Delhi Police carried a substantially

higher pay scale. This application is stated to have been

recommended by the Company Commandant and the

petitioner claims that he was orally informed about the

decision to discharge him though no formal order was

issued to him. It is once again noticed at this stage that

from the records of the respondents as also as per the

affidavits nothing has been found to show that the

petitioner had ever made such a request with the

respondents.

3. It is an undisputed position that the petitioner did not join

the duty with the 12 J&K Rifles, which unit is stated to

have kept the vacancy unfilled and waited for the

petitioner to join the duty till 31.07.1993 whereafter a

Court of Inquiry was set up which recorded the evidence

and found that the petitioner had illegally absented

himself without leave from 31.07.2003 (fore noon)

onwards. The petitioner was thereafter declared a

deserter. The petitioner, on the basis of the period

spent on the strength of the Army was entitled to draw a

salary of Rs.18,180/- whereas the petitioner had drawn

an amount of Rs.18,500/- and thus an excess amount of

Rs.320/- had been paid to the petitioner. Since the

petitioner was deserter and untraceable, his mother was

intimated and the mother of the petitioner deposited the

amount through Treasury Receipt on 07.08.1996. The

account of the petitioner was finally closed.

4. The SHO, Inderpuri is stated to have asked the Army to

furnish the particulars of the petitioner vide letter dated

28.06.1996 as the petitioner had remained

unapprehended. Thus the particulars of the petitioner

were forwarded by the Army with a request to the

concerned authorities to apprehend the petitioner as a

Army deserter and hand him over to the nearest military

station. Despite the reminders sent to the Delhi Police,

there was no result. Thus in terms of the administrative

decision of the Army as per Letter dated 11.03.1980 (as

amended on 24.02.1987), the petitioner was dismissed

from the Army with effect from 31.07.1996. The said

administrative decision required that if a deserter was

not apprehended within a stipulated period of three years

from the peace area and within a stipulated period of ten

years in case of desertion from the field area, he would

be dismissed from service. The petitioner had deserted

from the unit located in a peace area with effect from

31.07.1993 and thus on expiry of three years‟ period, the

petitioner was dismissed from service.

5. The petitioner in the meantime had joined the Delhi

Police as a Sub Inspector on 10.02.1994 and after

completing his basic training was allocated to the South

West District vide an order dated 05.05.1995. A

complaint was received in the office of the DCP South

West District dated 12.04.1996 from one Sh. R.P.Singh,

CBI, Lodhi Road to the effect that the petitioner was a

Army deserter who had been successful in joining the

Delhi Police as a Sub Inspector rather than suffering the

consequences of desertion from the Army. An inquiry

into this behalf was thus conducted by the Delhi Police

and it was confirmed that the petitioner was an Army

deserter with effect from 31.07.1993 with his home

address disclosed as of District Rohtak. The attestation

form filled by the petitioner on 20.08.1993 in his own

handwriting was scrutinized and it was found that against

Column No.10 which related to information about a

candidate‟s previous employment at any time, the

petitioner had written „NA‟. The petitioner had thus

concealed the factum of his previous employment with

Army and as per conditions stipulated in the appointment

letter issued by the Delhi Police read with the Rule 5(i) of

CCS (Temporary Services) Rules, 1965 („the said Rules‟

for short), the petitioner was liable to be terminated from

the service. A decision was thus taken to terminate the

services of the petitioner under the provisions of Rule 5(i)

of the said Rules. The representation of the petitioner

against the order of termination was rejected by the

Commissioner of Police, Delhi on 10.06.1997 and the

petitioner was duly informed. The petitioner has

thereafter filed the present writ petition seeking

quashing of the orders declaring him a deserter and

requiring the Army to treat the petitioner as discharged

from service with effect from 31.07.1993. A further

relief claimed is for quashing the order passed by the

Delhi Police terminating the services of the petitioner.

6. Learned senior counsel for the petitioner contends that

the impugned decisions are arbitrary and illegal and the

punishment given to the petitioner, in any case, is

disproportionate to the offence as the petitioner has

been deprived of both serving the Army and the Delhi

Police. It is thus submitted that at best there was a

technical defect in the petitioner leaving the Army

without sanction (though the same was disputed) and

thus the petitioner should not be dismissed from Delhi

Police. Learned counsel claims that the petitioner had,

in fact, submitted an application for being discharged

though he does not have a receipted copy of the same

and but for the lapse of time, his case could have been

processed for such discharge. There was nothing

against the petitioner when he was serving the Army or

the Delhi Police and thus grave prejudice had been

caused to the petitioner by depriving him of the

opportunity to serve the Delhi Police.

7. The original records had been called to appreciate as to

how the petitioner dealt with the aspect of his

recruitment with Delhi Police while he was in the Army.

The records show that the petitioner at any stage of his

joining the Army never disclosed the factum of his having

applied with the Delhi Police. There is nothing on record

to show that the petitioner took the examination for

recruitment to the post of Sub Inspector with the Delhi

Police after obtaining permission from the Army. The

examination for recruitment to the post of Sub Inspector

with the Delhi Police was incidentally held on a Sunday.

Not only that, there is no application on record of the

petitioner for grant of leave in respect of the period when

he went to take the examination for recruitment to the

post of Sub Inspector with the Delhi Police.

8. On the other hand, the petitioner was treated as absent

from leave and was punished for the same which

punishment he accepted. The petitioner, even at that

stage did not disclose that he had gone to take the

examination with the Delhi Police.

9. The claim of the petitioner of having sought such

discharge from the Army is also belied as there is once

again nothing on the original records of the petitioner

produced by the Army to show such an application was

ever made by the petitioner. The petitioner was issued a

movement order to join the 12 J&K Rifles but instead of

joining the same, the petitioner deserted the Army. The

petitioner could not be apprehended and, after a Court

of Inquiry, was held to be a deserter and on expiry of a

period of three years was dismissed from service.

10. It is not even disputed by learned counsel for the

petitioner that the petitioner does not have any

discharge order. The petitioner is an educated man and

can hardly be expected to presume that there could be a

discharge from the Army without any formal discharge

orders being issued to him.

11. The story set up by the petitioner of an assumption by

the petitioner of his being discharged is also belied. This

is for the reason that when the petitioner joined the Delhi

Police, against the relevant column seeking information

about his past employment, the petitioner filled in „NA‟ .

If the petitioner was under a misconceived notion of his

discharge, he would have mentioned the factum of his

enrolment with the Army coupled with his discharge.

The petitioner neither mentioned the factum of

enrolment with the Army nor the discharge. The

aforesaid facts show that the petitioner had been

concealing material facts repeatedly from the Army and

the Delhi Police while seeking enrolment.

12. Learned senior counsel for the petitioner also seeks to

challenge the manner of conduct of the Court of Inquiry

where the petitioner was declared a deserter. An

endeavour is made to take advantage of mis-description

inasmuch as the petitioner has been referred to as a

Sepoy instead of Havaldar, which is no consequence.

The petitioner claims that the Court of Inquiry could not

have been held in 12 J&K Rifles as the petitioner never

joined the said Unit and the petitioner could not have

been absent without leave from 31.07.1993 when the

movement order dated 20.07.1993 granted the petitioner

leave for 9 days with effect from 27.07.1993 which would

require the petitioner to join the said Unit by 04.08.1993.

13. In our considered view, these are meaningless pleas for

the reason that it is not in dispute that the petitioner was

given a movement order with a free railway warrant to

join the 12 J&K Rifles. The petitioner had to join the 12

J&K Rifles and thus the inquiry was rightly held by that

Unit. It is undisputed that the petitioner did not join the

duty but instead absented himself and subsequently

joined the Delhi Police because in the meantime he had

been recruited for the post of Sub Inspector with the

Delhi Police. The Army records also show that the inquiry

with regard to declaring the petitioner‟s absence from

service was conducted in accordance with Rule 106 of

the Army Act, 1950 which is not required to be done if

the incumbent is present. The said Section for the sake

of reference is re-produced below:

"106. Inquiry into absence without leave - 1) When any person subject to this Act has been absent from his duty without due authority for a period of thirty days, a court of inquiry shall, as soon as practicable, be assembled, and such court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries; and if satisfied of the fact of such absence without due authority or other sufficient cause, the court shall declare such absence and the period thereof, and the said deficiency, if any, and the commanding officer of the corps or department to which the person belongs shall enter in the court- martial book of the corps or department a record of the declaration.

2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for purposes of this Act, be deemed to be a deserter."

14. Learned counsel for the petitioner also claims that the

petitioner never had a fair opportunity to defend himself

in the Court of Inquiry. The petitioner is himself to

blame for the same as he never joined the proceedings

and had absented himself from duty. It is not the case of

the petitioner that he had at any stage subsequently

sought to inform the Army or sought to join the duty. It

is not even the case of the petitioner that he ever

received a discharge order which would entitle him to

presume that he had been discharged from the Army.

We find no breach of the provisions of either the Army

Act or the Rules thereunder.

15. Learned senior counsel for the petitioner also seeks to

contend that the decision of the Delhi Police under Rule

5(i) of the said Rules was illegal as once allegations were

made about the aspect of desertion of the petitioner from

the Army, a regular inquiry ought to have been held and

the petitioner should have been given an opportunity to

defend himself. Learned counsel in this behalf relied

upon a recent judgment of the Apex Court in Nehru Yuva

Kendra Sangathan v. Mehbub Alam Laskar; JT 2008 (2)

SC 163. In the said case, the services of a probationer

had been terminated due to financial irregularity. The

inquiry had been conducted behind his back. A

representation had been made by the probationer, which

was ultimately disposed of. It was observed that when

the foundation for an order of termination of a

probationer is not the unsatisfactory performance on the

part of the employee but overt acts amounting to

misconduct, an opportunity of hearing to the concerned

employee is imperative. Thus although an order

terminating a probationer would appear to be innocuous

on its face, the same would be vitiated if in effect and

substance it is found to be stigmatic in nature. It was,

however, observed that mere holding a preliminary

inquiry where an explanation is called for from an

employee, if followed by an innocuous order of discharge,

may not be held to be punitive in nature but not when it

is founded on a finding of misconduct. One of the

important facts which was taken note of by the Apex

Court was of discrimination and the conduct of the

petitioner which was found to be bona fide.

16. Learned counsel also referred to the judgment of a

Division Bench of this Court in Director, Directorate of

Economics and Statistics, Govt of NCT of Delhi & Anr.v.

Shahid Khan & Anr; 100 (2002) DLT 247 (DB) where once

again it was held that the termination of services based

on misconduct obligated the respondents to initiate

departmental proceedings against the offending officer.

A reference has also been made to the judgment in

WP(C)6672/2000 Raj Kumar v. Union of India & Ors and

other connected matters decided on 18.10.2001 by a

Division Bench of this Court. The matter pertained to

the recruitment through a special drive for constables in

Delhi Police in Saharanpur and Rampur Districts of UP.

On scrutiny carried out subsequently, the registration

cards of as many as 73 candidates including the

petitioners were not found in order. Further verification

showed discrepancies which resulted in termination of

the candidates under Rule 5 of the said Rules. The

termination orders were quashed by the CAT giving

directions to the respondents to hold a regular inquiry.

The inquiry was carried out which also resulted in

adverse orders in case of some of the affected parties.

The main point canvassed was of discrimination meted

out to the petitioners vis-à-vis other colleagues who had

been re-instated. It is thus a plea of discrimination

which found favour.

17. In the aforesaid context, learned senior counsel for the

petitioner sought to produce a circular of the Delhi Police

dated 24.02.1998 which was in continuation of an earlier

Circular dated 24.07.1997 regarding dealing with cases

of concealment of facts about involvement of candidates

in criminal cases or giving wrong information at the time

of filling up application forms as well as attestation forms

or submitting forged/bogus documents for recruitment in

Delhi Police. The circular stated that all such cases

were required to be decided by issuing proper show

cause notices to the candidates and action should be

taken under Rule 5 of the said Rules.

18. We are however of the considered view that the

aforesaid judgments do not apply to the facts of the

present case. Sh. Raj Kumar v. Union of India & Ors‟s

case (supra) is predicated on a plea of discrimination

which has no application in the present case. No doubt,

the other judgments in the cases of Nehru Yuva Kendra

Sangathan v. Mehbub Alam Laskar‟s case (supra) and

Director, Directorate of Economics and Statistics, Govt of

NCT of Delhi & Anr.v. Shahid Khan & Anr‟s case (supra)

propounded a proposition that where the probationer is

terminated really on account of misconduct, an

opportunity to defend himself should be given to the

probationer. However, it has been simultaneously

observed in the case of Nehru Yuva Kendra Sangathan v.

Mehbub Alam Laskar‟s case (supra)‟s case (supra) that

mere holding a preliminary inquiry followed by an

innocuous order of discharge, may not be held to be

punitive in nature. The basic principle which is

enunciated in these two cases is founded on the salutary

rule that a person should not be condemned for

misconduct without giving him an opportunity to defend

himself.

19. The facts of the present case, however, show that it is

not even disputed by the petitioner that he joined the

Army, that he did not join his place of posting, that he

has no discharge order from the service and that he did

not disclose the factum of his earlier employment with

the Army to the Delhi Police. He had no explanation to

these facts even before us. These undisputed facts leave

no room for any inquiry to be made. The whole case of

the petitioner is predicated on the plea of an assumptive

discharge which can hardly be sustained.

20. Another important aspect which weighs with us is that

while exercising jurisdiction under Article 226 of the

Constitution of India, the conduct of the petitioner has to

be kept in mind. The petitioner, in the present case, in

our considered view, is guilty of concealment of material

facts and mis-representing the facts. The petitioner

claimed that he had taken the examination, both written

and oral, with the Delhi Police after obtaining permission

from the Army. No application for such permission was

found nor was any permission granted. The petitioner

also claimed to have made an application for discharge

while no such discharge application is found on the

records of the petitioner with the respondents. Thus he

has not come to the Court with clean hands and has also

made wrong statements.

21. The petitioner has no doubt lost both the jobs. The

present case is, however, not one where even the

question of quantum of sentence can be doubted. A

person who surreptitiously takes an examination for

recruitment with Delhi Police while serving the Army and

then deserts the Army to join the Delhi Police, without

being discharged, really does not deserve any mercy.

The petitioner has been repeatedly mis-representing

facts to the Army, to the Delhi Police and even to this

Court. In such a case, even the stated circular of the

Delhi Police does not come to the aid of the petitioner.

22. We see no reason to exercise jurisdiction under Article

226 of the Constitution of India in favour of the petitioner

who has only to blame himself for the position he finds

himself in where he gets neither of the two jobs.

23. Dismissed.

SANJAY KISHAN KAUL, J.

AUGUST 20, 2008                               MOOL CHAND GARG, J.
dm