Ex Chm Dharampal Singh vs Uoi & Ors.
2012 Latest Caselaw 5033 Del

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*   IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision : August 27, 2012

+                          WP(C) 5171/2012

      EX CHM DHARAMPAL SINGH                   ....Petitioner
               Represented by: Mr.S.S.Pandey, Advocate.

                                   versus

      UOI & ORS.                               ...Respondents
                Represented by: Mr.Ankur Chhibber, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH


PRADEEP NANDRAJOG, J. (Oral)

1. Affidavit deposed to by the petitioner has been filed in Court. It is taken on record. The petitioner gives up claim to be paid wages. He restricts claim to be paid pension, gratuity and leave encashment lying in credit as on August 31, 1991; as per the affidavit filed.

2. Working as a Havaldar in the Indian Army, the petitioner was assigned duties as a Physical Training Instructor at a Training Institute when some recruits and in particular recruit Anand Singh alleged that on December 24, 1990 the petitioner had committed sodomy on recruit Anand Singh, an allegation which was made after December 26, 1990, the date on which admittedly the recruits had an altercation with the petitioner and had assaulted the petitioner.

3. The petitioner was court-martialed and being found guilty was sentenced to undergo imprisonment and by a

separate order the civil penalty of dismissal from service was inflicted on August 31, 1991.

4. Writ petition was filed challenging the conviction as also the consequential order of dismissal and by the time the same was filed, the petitioner had already undergone the sentence to undergo imprisonment. Unfortunately, the writ petition could not be decided till the year 2009 when the Armed Forces Tribunal was constituted, requiring the writ petition to be transferred to the Tribunal, where it was registered as T.A. No.31/2009.

5. Vide order dated September 07, 2009 the conviction of the petitioner was set aside and it was opined that the recruits had conspired to lodge a false complaint against the petitioner, probably to justify the violence committed by them on December 26, 1990. But, it was recorded in the order:-

"Before proceeding to make arguments, the learned counsel for the petitioner urged that this petition be treated as appeal against the conviction order alone and he be permitted to withdraw the prayer for his reinstatement in service and other benefits so sought. Permission is accorded and the petition is kept confined only for hearing against the impugned order of conviction recorded by court martial."

6. On being acquitted, the petitioner made a representation to be reinstated in service and pending decision by the Chief of the Army Staff he filed OA No.92/2010 but withdrew the same as recorded in the order dated February 24, 2010, informing the Armed Forces Tribunal that his representation for reinstatement was still pending.

7. The representation being rejected he filed OA No.152/2010 challenging the rejection, but withdrew the same

with liberty granted to file afresh; the reason being that OA No.152/2010 was ill drafted.

8. The petitioner then filed OA No.8/2011 which was dismissed vide impugned order dated April 26, 2011, recording as under:-

"Heard learned counsel for the petitioner.

In view of the statement made by the petitioner in the order passed by the Co-ordinating Bench (sic) while arguing the appeal against his conviction under Section 377 IPC by Court Martial he has very clearly stated that „he is not interested in reinstatement of service and other benefits so sought‟. In view of this no benefit can be given to the petitioner in this petition and the same is dismissed with no order as to costs."

9. Now, the petitioner admittedly never stated before any Co-ordinate Bench that „he is not interested in reinstatement of service and other benefits so sought‟. As noted above, the concession made was as recorded in the order dated September 07, 2009, relevant part whereof has been extracted by us in paragraph 5 above and thus the petitioner sought a review of the order dated April 26, 2011 which was dismissed holding that having withdrawn unconditionally the prayer made to be reinstated when T.A. No.31/2009 was argued, res judicata bars a second petition on the same prayer.

10. Suffice would it be for us to state that if a civil penalty of dismissal from service is inflicted upon a person being convicted at a trial for a penal offence, a joint petition challenging the penalty of dismissal from service and a conviction for a penal offence would not be maintainable inasmuch as both are based on distinct causes of action. It may be true that the civil penalty would be an impacted order, but it

has to be kept in mind that merely because a person is acquitted at an appellate stage, would not necessarily lead to the conclusion that the penalty of dismissal from service has also to be set aside. The nature of acquittal would then become relevant. If it is on merits, it would then become obligatory for the Competent Authority to decide a representation made to be reinstated in service. In other words, the right to be reinstated in service, or the entitlement to be so considered, would arise upon a conviction being set aside in appeal. Thus, a cause of action arises to seek reinstatement when a conviction is set aside.

11. Unfortunately, the Tribunal has glossed over as afore- noted.

12. Noting that the petitioner was acquitted honourably when T.A. No.31/2009 was allowed and the opinion is of the petitioner being falsely implicated, we hold that it is a fit case where petitioner should be directed to be reinstated in service. But noting that the petitioner would have in any case superannuated on May 19, 1999, and also noting that the petitioner gives up claim to be paid any salary, we dispose of the writ petition directing that in the records the respondents would make an entry that the petitioner stands superannuated with effect from May 19, 1999. The petitioner be paid pension commencing from the next day. Admissible gratuity be also paid. It not being in dispute that some leave was lying credited to the account of the petitioner when he was dismissed from service on August 31, 1991, for encashment of which, in any case he would be entitled even if he was dismissed from service, and for which we find it strange that it was not paid, we direct that even leave encashment amount be paid to the petitioner.

13. The amount be computed within 12 weeks and paid i.e. arrears of pension, gratuity and leave encashment amount. If not paid within 12 weeks the amount payable would bear simple interest @10% per annum reckoned from 12 weeks from today. Future pension be paid each month.

14. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE AUGUST 27, 2012 dk