Upendra Kumar Sharma vs Union Of India & Ors.
2009 Latest Caselaw 1421 Del

              HIGH COURT OF DELHI AT NEW DELHI

                          W.P. (C) 148/2007


                        Date of Decision: April 16, 2009

       Upendra Kumar Sharma              ... Petitioner

                             Through: Ms. Rekha Palli, Adv.
                             Versus
       Union of India & Others          .....Respondents

                             Though: Ms. Barkha Babbar, Adv.
       CORAM:
       HON'BLE MR. JUSTICE B.N. CHATURVEDI
       HON'BLE MR. JUSTICE S.L. BHAYANA
       1.     Whether reporters of local paper may be allowed
              to see the judgment?                        Yes


       2.     To be referred to the reporter or not?            Yes


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

S. L. BHAYANA, J.

This Writ Petition was filed for the issuance of a

writ of certiorari to quash the order dated 13th March

2006 passed by the Respondent No.2 and the

Movement Order dated 25th December 2000 issued by

Respondent No.5. This petition further prays for

issuance of writ of mandamus directing Respondents

to reinstate the Petitioner with all consequential

benefits.

2. The brief facts of the case are that, the Petitioner

was appointed as a gunner (DMT) on 24.12.1996. The

Petitioner was granted preparatory leave and advance

of annual leave from 26.11.1998 to 5.12.1998.

However Petitioner failed to rejoin duty on expiry of

leave. Petitioner rejoined the duty voluntarily on

8.5.1999. Petitioner was punished for overstaying of

leave granted to him without sufficient reason to the

tune of 28 days Rigorous Imprisonment and 14 days

detention under Section 39 (b) of the Army Act 1950

(hereinafter to be referred as "Army Act") by order

dated 10.6.1999.

According to Section 39 (b) of Army Act

overstaying of leave without sufficient cause is an

offence. The Section is reproduced as under:-

39. Absence without leave.- Any person subject to this Act who commits any of the following offences, that is to say,-

(a) x x x x x

(b) without sufficient leave granted to him....... shall, on conviction by court- martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as in this Act mentioned.

On 14.12.1999, a formal complaint was lodged by the

mother of Respondent No. 6 that the Petitioner had

contracted a second marriage which came to light on

receipt of letter dated 30.12.1999 of Zila Sainik

Kalyan Evam Punarvas, Meerut. Pursuant to the said

complaint, order dated 25.12.2000 was passed by the

Respondents which have been challenged in the

present petition.

3. Petitioner has challenged the order passed by

the Respondents on the ground that the Respondents

passed the orders unreasonably without holding any

inquiry and in non observance of the principles of

natural justice. The Petitioner mentions that the

Movement Order dated 25.12.2000 informed him of

his local discharge w. e. f. 25.12.2000. According to

the learned counsel, Petitioner was hospitalized for

acute appendicitis on 29.9.2000 and discharged after

surgery on 22.10.2000. Further according to the

Petitioner, the Respondent No.6 i.e alleged second

wife of the Petitioner lodged an illegal false FIR

against him alleging second marriage with her.

Accordingly a case was registered against him under

Section 420 and 494 IPC and he was tried by the

court of the learned Chief Judicial Magistrate, Meerut

in which he was later acquitted.

4. Further, the learned counsel for Petitioner

argued that Petitioner's discharge was illegal,

erroneous and arbitrary passed by ignoring the

provisions of para333 (C) (c) of the Defence Service

Regulations which deals with action to be taken in a

case where a complaint of plural marriage is made.

The provision provides for administrative action for

termination of services to be initiated but where a

civil court of competent jurisdiction has taken

cognizance, it is to be treated as sub-judice.

5. The Petitioner further proceeds that the

Respondent No. 6 could not produce any evidence in

support of her marriage and accordingly filed another

affidavit stating that she had no relation with the

Petitioner. The Ld. Chief Judicial Magistrate, Meerut

acquitted the Petitioner of the charges levelled

against him on the basis of facts stated by the

complainant i.e. Respondent No.6 in the affidavit and

compromise was arrived at between the parties.

6. The Petitioner made representations to the

Respondents requesting respondents to reinstate the

Petitioner with consequential benefits, these

representations were not decided upon by the

Respondents and therefore, the Petitioner approached

the Hon'ble High Court of Judicature at Allahabad

wherein the Respondents were directed to consider

and decide the representations of the Petitioner

within the time granted by the Hon'ble High Court.

According to the Petitioner as the Respondents did

not decide the representations within the granted

time, he filed a contempt petition and immediately on

receipt of the contempt petition notice the

Respondents hastily issued an order rejecting the

Petitioner's representations.

This matter had come up before the Hon'ble

High Court of Judicature at Allahabad which was

pleased to dismiss the petition on the ground of lack

of territorial jurisdiction following which the

Petitioner has filed the petition in question.

7. It is further contended by the learned counsel

for Petitioner that the Respondents have rejected his

representations illegally and that the allegation of

second marriage is false and has not been proved as

he was acquitted of criminal charges in the court of

the learned Chief Judicial Magistrate, Meerut. It is

emphasized by the Petitioner that the basis of his

discharge from service was false.

8. The Respondents have contested the claim of

the Petitioner on the ground that the current petition

being a third one on the same grounds and relief is

barred by res judicata.

Learned counsel for the Respondents has further

contested the petition stating that the Petitioner in

the interview with the Commanding Officer after his

arrival had never disclosed that he was having a

problem during the period of time when he was

absent without leave. The Respondents' further

proceed that the service documents of the Petitioner

show his marriage as on 7.3.1996 but the incidence of

it was not known until it was published by the

Petitioner's father in the month of June 1999.

9. Further, according to the Respondents the

Petitioner had married Miss Geeta Sharma according

to Hindu rites on 7.3.1996, the incidence of which

was known only in June 1999. According to the

Respondent's investigations the Petitioner had

overstayed his leave during the period in which he

was married to the Respondent No. 6, i.e. the

Petitioner contracted the second marriage when he

was absent without leave. Further, according to the

unit's investigations the lady possessed photographs

of the wedding including a video cassette as well as a

certificate of marriage by the Village Elder.

10 It is pointed out by the Respondents that with

regard to the FIR against the Petitioner under

Sections 420 and 494 IPC and his acquittal, there was

no proof as to his not having contracted the second

marriage; as a settlement had been arrived at by way

of compromise and the second wife viz. Respondent

No. 6 had merely withdrawn her complaint against

him. Further, according to the Respondents the

Petitioner was served a show-cause notice to which

the Petitioner submitted a reply dated 22.6.2000.

11. It is contended by the Respondents that there

has been no violation of para 333 of Defence Service

Regulations and the principles of natural justice as

the reply to the show-cause notice was perused by the

GOC in C Eastern Command and directed for the

termination of his service under Army Act read with

Rule 17.

Again, the Respondent No.6 who has been made

a party to the suit further reiterates in her affidavit

before this Court that the Petitioner was married to

her as per Hindu Rites and ceremonies on 5.2.1999 at

Meerut and the petitioner had cheated her by keeping

her and her family in the dark about his past family

life including his first subsisting marriage.

12. We observe that the core issue to this matter is

that whether the acquittal of the Petitioner of criminal

charges by the Ld. Chief Judicial Magistrate, Meerut

is sufficient to absolve the Petitioner from the charge

of plurality of marriage which forms the sole basis of

the issuance of orders relating to his discharge from

service.

With regard to the issue in question, it is worth

noting that in cases of plural marriage, it is not a

disciplinary action but an administrative action that

has to be initiated relating to the termination of

service; however, para 333 of the Defence Service

Regulations provides that where the matter receives

cognizance before a competent civil court, it is sub-

judice and decision of the Court is to be awaited

before any action is taken.

With reference to the issue in hand applicable

extracts of the relevant provisions have to be

considered viz. that of the Section 19 of the Army Act

1950 which says that the termination of services of

any employee is subject to the provisions of the Act

and the Rules and Regulations made under the Act.

Sub-rule (2) of Rule 14 of the Army Act on which

reliance is placed is as follows:

                    "14. Termination of        service by the
                    Central Government         on account of
                    misconduct. -

(1) when it is purported to terminate the service of an Officer under Section 10 on account of misconduct, he shall be given an opportunity to show-cause in the manner specified in Sub - rule (2) against such action:-

Provided...............

                    (a)   XXX      XXX
                    (b)   XXX      XXX

(2) When after considering the reports on an officer's misconduct, the Central Government or the Chief of the Army Staff is satisfied that the trial of the officer by court-martial is inexpedient or impracticable, but is of the opinion, that the further retention of the said officer in the service is undesirable, the Chief of the Army Staff shall so inform the officer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence"

13. On this issue the learned counsel for

Respondents' state that the Petitioner was served a

show-cause notice to which the Petitioner submitted a

reply dated 22.6.2000, thereby the necessities under

the Army Act of Sub-rule (2) of Rule 14 are put to

rest.

14. We have observed that the Petitioner relies on

the affidavit filed by the Respondent No. 6 in the

court of the learned Chief Judicial Magistrate, Meerut

wherein she had stated that she never had any

relation with the Petitioner.

The Petitioner relies on the ground that his

acquittal of the criminal charges under Section 420

and 494 of the IPC has rendered him free from his

alleged unison with the Respondent No. 6 and hence,

according to him the basis of his discharge has been

rendered false. However, the Petitioner's acquittal is

not sufficient to absolve him of his alleged second

marriage with the Respondent No. 6. On the other

hand Respondent No.6 possesses a certificate of

marriage by the Village Elder and an album of

photographs and a video cassette of the wedding and

she has further reiterated about her marriage with

the Petitioner as per Hindu customs and rituals in an

affidavit filed before this Court.

Moreover, the condition of a show-cause notice

has been shown satisfied by the Respondents in the

form of the response of the Petitioner. Hence, Rule 14

of the Army Act stands satisfied and further, the

regulations envisaged in para333 (C)(c)of the Defence

Service Regulations stand satisfied.

15. With regard to the actions against a party

involving penal or adverse consequence, it should be

such as, that would be in accordance with the

principles of natural justice; however, the application

of such principles cannot be straitjacketed into a

singular formula. Hence, the decision should be in the

light of the facts and circumstances and should be

arrived at, in a just and objective manner. In the

present case, the procedure followed was in

accordance with the provisions and regulations

provided. The decision was arrived at after the

investigations were carried out by the unit and the

Petitioner had also been given an opportunity to make

his representation as well, in this regard the orders

against which this present petition lies are not

arbitrary and in our opinion no prejudice has been

caused to the Petitioner by the procedure followed.

16. In the net result the petition is without any merit

and the same is, therefore, dismissed.

17. No order as to the costs.

S.L. BHAYANA,J.

B.N. CHATURVEDI, J.

April 16,2009