Signalman Kripa Shankar Tiwari vs Union Of India & Ors.
2011 Latest Caselaw 5912 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) No.8526/2011

%                         Date of Decision: 05.12.2011

Signalman Kripa Shankar Tiwari                               .... Petitioner

                         Through Dr. H.B.Mishra, Advocate.

                                  Versus

Union of India & Ors.                                    .... Respondents

                         Through Mr. Anuj Aggarwal, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

CM No. 19263/2011

Allowed subject to just exceptions.

WP(C) No.8526/2011

1. The petitioner, has challenged the order dated 1st April, 2011

passed by the Armed Forces Tribunal, Principal Bench in T.A

No.481/2009 titled as „K.S.Tiwari v. Union of India & Ors‟ dismissing

his petition seeking quashing of the Summary Court Martial (SCM)

against the petitioner, whereby he was held guilty of having committed

the offence under Section 64(c) of the Army Act and the sentence of six

months rigorous imprisonment in civil prison and his dismissal from

the service. The Tribunal also rejected his pray for directing the

respondents to hold a Military Medical Review Board to medically

examine the petitioner so as to make the consequential

recommendation to reinstate the petitioner.

2. The petitioner had joined the Army as Signalman on 2nd July,

1970 in the medical category AYE. The petitioner had completed the

training at First Military Training Course, Jabalpur, M.P and was

posted at 86, Infantry Brigade at the time of Indo-Pak war in 1970-71.

Later on, the petitioner was posted to 4 T.T.R Jabalpur (M.P) for

operator, Radio Key Board Training for advancement of service and on

completion of the training he was posted to 1st Armoured Division

Signal Regiment, Jhansi (M.P). In the course of his duties the petitioner

was moved from Jhansi to Ambala.

3. The petitioner contended that after the demise of his father a

property dispute had arisen in his family with his uncle who had a

dishonest intention towards his share of the property and, therefore, he

had sought discharge from the service when he was posted at Ambala.

However, his plea for discharge from service was declined. Thereafter,

the petitioner again sought discharge on compassionate grounds and

also gave various reminders. The petitioner was however, not

discharged from the service.

4. According to the petitioner, he had submitted another application

for discharge during October/November, 1973 which infuriated his

seniors and he was abused, beaten and tortured by the Unit Subedar

Major on 3rd March, 1974. The petitioner was also produced before his

Commanding Officer who instead of considering his grievances called

him a mad man and had sent him to the Unit doctor for medical

examination where he was forcibly administered medicines, injections

and electric shocks. The petitioner was, thereafter hospitalized in the

Mental Ward of Command Hospital, Chandigarh. There he was kept

under psychiatric treatment and observation from 19th November, 1974

up to 7th December, 1974. On account of the petitioner‟s medical

condition he was placed on lower medical category of CEE by a Medical

Board for six months from his earlier medical category of AYE.

5. The petitioner contended that after his release from the Mental

Ward on 7th March, 1975 he was produced before his Commanding

Officer. A Summary Court Martial was held in which he was sentenced

to undergo six months rigorous imprisonment in civil prison and he was

also dismissed from service. The punishment awarded to the petitioner

was communicated by letter dated 7th March, 1975 to his wife Smt.

Lalita Tiwari at village and Post Office Garhmalpur, Thana Ratsar,

District Balia (U.P). The petitioner contended that he was not supplied

any chargesheet, nor was any reasonable opportunity given to him to

defend himself and in any case since he was in a state of unsound mind

and had been placed in a lower category, therefore, he could not be

tried by the Summary Court Martial.

6. The petitioner pleaded that the copy of the chargesheet and Court

Martial proceedings were not provided to his wife, who had also made

various representations. Certificate of service was, however, forwarded

to wife of the petitioner stating, inter alia, that (i) "Dismissed from

service on 7th March, 1975 in consequence of Summary Court Martial"

and also (ii) "Not eligible for further employment for Government

Services".

7. The petitioner, thereafter, allegedly made various representations,

however, he did not receive any response. Subsequently, on account of

medical treatment received by him he became a fit person. According to

him, the alleged offences committed by him were under the state of

unsound mind, as he did not know what was wrong and right at the

time and thus the offences alleged against him could not be imputed to

him as per provisions of Section 84 of the Indian Penal Code.

8. The petitioner received a communication dated 28th July, 1997

from the Additional Directorate General Discipline and Vigilance, DV-3,

Adjutant General Branch, Army Headquarters advising him to submit a

petition through the proper channel entailing filing of a representation

dated 5th September, 1997 by him for redressal of his grievances. The

communication dated 28th July, 1997 was also accompanied by the

copy of the Summary Court Martial proceedings and a copy of the

chargesheet. The petitioner in his representation dated 5th September,

1997 sought the quashing of Summary Court Martial proceedings and

the sentence of rigorous imprisonment for six months and his dismissal

from service. The petitioner after his representation dated 5th

September, 1997 sent reminders dated 2nd February, 1998, 15th April,

1998 and 14th May, 1998, however, no action was taken by the

Competent Authority. The petitioner, therefore, filed a writ petition

being W.P(C) No.3599/1998 titled as „Signalman Kripa Shankar Tiwari

v. Union of India & Ors‟ in the High Court of Delhi at New Delhi.

9. The writ petition filed by the petitioner was contested by the

respondents, inter-alia, on the ground that the petition was highly

belated as the petitioner was dismissed from service in 1975 and since

the petition suffers from delay and latches it could not be entertained. It

was subsequently contended on behalf of the respondents that it would

be difficult for the respondents to bring on record the evidence against

the petitioner as the records pertaining to the petitioner had already

been weeded out. From the available record it was submitted that the

petitioner was punished under Section 64(c) of the Army Act, and

sentenced to undergo imprisonment for six months and dismissed from

service. It was also admitted that the petitioner was hospitalized and

put for psychiatric treatment and he was placed in lower medical

category of CEE by a Medical Board. The respondents further

contended that even though the petitioner was categorized as CEE it

was not sufficient to exonerate him of the charges leveled against him.

According to the respondents, to take the benefit of Section 84 of the

Indian Penal Code the petitioner was liable to prove legal insanity and

not medical insanity and, therefore, reliance was also placed on the

decision of the Supreme Court, in Surendra Mishra v. State of

Jharkhand, JT 2011 (1) SC 83.

10. In the writ petition filed by the petitioner „RULE‟ was issued on

11th February, 1999. However, on 9th October, 2009 the writ petition

bearing W.P (C) No.3599/1998 was transferred to the Armed Forces

Tribunal, Principal Bench bearing TA No. 481 of 2009.

11. Before the Tribunal on 7th December, 2009 a doctor, namely one

Vaidya Basudev Tripathi was summoned to appear on 29th January,

2010. The doctor had appeared on the said date and he confirmed the

medical certificates and filed his affidavit as well. Whatsoever record

pertaining to the petitioner which could have been reconstructed was

reconstructed and produced before the Tribunal. The Armed Forces

Tribunal, Principal Bench after hearing the counsel for the parties and

after perusing the record dismissed the petition on account of delay and

latches by its order dated 1st April, 2011.

12. The petitioner has impugned the order dated 1st April, 2011

passed by the Principal bench, Armed Forces Tribunal contending,

inter-alia, that the Summary Court Martial was conducted in total

violation of the rules and regulations and that though an affidavit was

filed by Dr.Basudev Tripathi, the medical certificate has been ignored by

the Tribunal without any just reason. It is also contended that the

Tribunal has erred in treating the writ petition of the petitioner which

was transferred from the High Court to the Armed Forces Tribunal as

an appeal and that it should instead have been treated as a petition

under Section 14 of the said Act. The petitioner also contended that

adverse inference ought to have been taken against the respondents for

not producing the proceedings/summary of evidence and chargesheet

despite the directions given by the Tribunal. It has been pleaded that

thus the violation of statutory provisions of the Army Act, 1950 and

Army Rules, 1954 has been made out. The petitioner also asserted that

the proceeding in which he was punished for the offences alleged

against him, such a proceeding would be nonexistent in law, nor could

the decision in the same be taken as he was of unsound mind at that

time. The petitioner contended that the reliance by the Tribunal on the

judgment of Surendra Mishra (Supra) was misplaced.

13. The petitioner emphasized that an insane man is non-compos

mentis i.e. not of sound man and that the action of such a person who

is not in control of his mind and is not guided by the rational thoughts

of his brain, such a person cannot be punished for the acts committed

by him in such a state of mind. The petitioner contended that there are

two tests for determining legal insanity. The first is, „whether by reason

of unsoundness of mind the accused person was incapable of knowing

the nature of the act he was doing‟ and secondly, `whether by reason of

unsoundness of mind the accused person was incapable of knowing

that what he was doing was either wrong or contrary to law‟. The

presence of any of the abovementioned factors/ingredients are sufficient

to demonstrate legal insanity.

14. This Court has heard the learned counsel for the parties in detail.

Mr.Anuj Aggarwal, Advocate appeared for the respondents on advance

notice and reiterated that the petition has been dismissed rightly on

account of delay and latches as no sufficient cause has been made out

and pleaded by the petitioner before the Tribunal justifying the same.

According to him, even in the writ petition filed earlier before the High

Court which was transferred to the Armed Forces Tribunal no sufficient

ground was made out for the delay and latches. He also contended that

even in the present writ petition filed against the order dated 1st April,

2011 of the Armed Force Tribunal, Principal Bench the petitioner has

failed to explain the sufficient cause for delay of more than two decades.

15. The Tribunal while dismissing the petition had relied on Sawaran

Lata & Ors v. State of Haryana, JT (2010) 3 SC 602 holding that while

considering the question of delay and latches it should be seen whether

the matter has attained finality. The Tribunal relied on paragraphs 7

and 8 of the said decision which are as under:-

7. A Constitution Bench of this Court, in Aflatoon and Ors. v. Lt. Governor, Delhi and Ors. AIR 1974 SC 2077, while dealing with the issue, observed as under:

"...to have sat on the fence and allowed the government to complete the acquisition on the basis that notification under Section 4 and the declaration under

Section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioner."

8. Same view has been reiterated by this Court observing that acquisition proceedings should be challenged before the same attain finality, in State of Mysore v. V.K. Kangan AIR 1975 SC 2190; PT. Girdharan Prasad Missir v. State of Bihar (1980) 2 SCC 83; Bhoop Singh v. Union of India AIR 1992 SC 1414; State of Orissa v. Dhobei Sethi and Anr. (1995) 5 SCC 583; State of Maharashtra v. Digambar AIR 1995 SC 1991; State of Tamil Nadu v. L. Krishnan AIR 1996 SC 497; and C. Padma and Ors. v. Dy. Secretary to Govt. of Tamil Nadu and Ors. (1997) 2 SCC 627.

16. The learned counsel for the petitioner has contended that on the

advice of the Additional Director General (Discipline & Vigilance) the

petitioner had submitted the petition on 5th September, 1997 and that

repeated reminders were also sent requesting an action in the matter.

Since there was no response from the respondents, therefore, the

petition had been filed by the petitioner without losing any further time

in July, 1998 and, therefore, the cause of action in the case of the

petitioner would start from 5th September, 1997 when the

representation was made by the petitioner.

17. The learned counsel for the respondent has relied on C.Jacob v.

Director of Geology and Mining and Anr, 2008 (10) SCC 115 to contend

that it was held by the Supreme Court that the department can reject a

stale case on the ground of delay alone without examining merits of the

case. It was further held that the reply given to an individual by the

department on his representation does not give rise to fresh cause of

action or acknowledgement of jural relationship. In the instant case, the

employee was terminated 18 years back and he made a representation

after 18 years and filed a petition before the Administrative Tribunal

which was disposed off. Pursuant to the directions given by the

Administrative Tribunal to dispose of the representation within four

months, the representation was declined. On the basis of the order

passed on the representation which was passed pursuant to the

directions of the Tribunal, it was held by the Supreme Court that the

staleness of the claim of the employee was not considered and a

detailed speaking order was passed in favour of the employee. The

Supreme Court had set aside the order of the Tribunal holding that

where an employee reappears after two decades he cannot be treated as

having continued in service, nor can he be given the benefit of

qualifying service for pension. This has not been disputed that the

petitioner was dismissed after Summary Court Martial on 7th March,

1975. Even if the petitioner was of unsound mind, though no evidence

to such a fact has been produced by the petitioner nor alleged, it is not

disputed that the wife of the petitioner had made a representation

against the dismissal of the petitioner in 1995. No cogent reason has

been disclosed for waiting for more than two decades before filing a writ

petition in the High Court which was later on transferred to the Armed

Force Tribunal and which was dismissed by the Tribunal on account of

delay and latches. Perusal of the petition which was decided by the

Tribunal reveals that no cogent or sufficient reason had been given

which would have entitled the petitioner for condonation of delay and

would have rectified the lacunae of latches. Even in the present writ

petition, filed by the petitioner challenging the order of the Tribunal, no

sufficient grounds have been made out which will entitle the petitioner

for relief after the delay of more than two decades. In C. Jacob v.

Director of Geology and Mining (Supra) in para 9 the Supreme Court

had held as under:-

"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of

representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."

18. The order of the Tribunal dismissing the petition of the petitioner

by order dated 1st April, 2011 is based on the correct appreciation of the

facts and law and it has not been demonstrated that it suffers from any

irregularity or illegality or any such perversity which will entitle the

petitioner to invoke the jurisdiction of this Court under Article 226 of

the Constitution of India. The writ petition in the facts and

circumstances is without any merit and it is, therefore, dismissed.

Parties are, however, left to bear their own cost.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

DECEMBER 05, 2011 'k'