Delhi High Court
Major General Shyam Shrivastava vs Union Of India And Ors. on 6 March, 2013
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 06.03.2013
+ W.P.(C) 1469/2013, C.M. APPL. 2780/2013
MAJOR GENERAL SHYAM SHRIVASTAVA
..... Petitioner
Through : Major K. Ramesh (Retd),
Advocate with Ms. Archana Ramesh,
Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through : Sh. Ankur Chhibber, Advocate.
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A.K. PATHAK
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. Issue notice. Sh. Ankur Chhibber, Advocate accepts notice.
With consent, the petition was taken-up for final disposal.
2. The petitioner seeks a direction to quash an Army HQ Signal
dated 05.02.2013 and a subsequent Army HQ Signal dated
22.02.2013. Briefly the facts are that the petitioner is a serving Major
General in the army. He was promoted to that post and posted as
W.P.(C) 1469/2013, C.M. APPL. 2780/2013 Page 1
MGEME HQ Northern Command, Udhampur, J&K on 22.02.2012.
Thereafter he was posted to as Commander of HQ Base Workshop
Group EME on 17.05.2012. He was called to depose in Court of
Inquiry, which it is stated, was concluded in October 2012. He was
subsequently reverted back to the parent unit at Meerut on
05.02.2013. The same day, the impugned Signal asking Major
General Ashok Kumar Bagga to take-over command of Base
Workshop at Meerut was issued. That has been impugned in these
proceedings.
3. The petitioner was again attached on 22.02.2013, in the
anticipation of Court Martial against another officer at Udhampur. Mr.
Ramesh, learned counsel argues that the petitioner was posted in May
2012 and allowed to partly function for a few months. Learned
counsel submits that his attachment by the impugned Signal and
direction to report in the anticipated proceedings appears to be only
with a view to accommodate another officer instead of him. Learned
counsel for the petitioner highlighted that the impugned Signal has in
fact relieved Major General Ashok Kumar Bagga and directed him to
report instead of the petitioner. It was further argued that after the
conclusion of Court of Inquiry, all the materials which can enable the
army authorities to contemplate the nature of proceedings and the
action, if any, it can take against the petitioner, were available. In fact
on 01.03.2013, the petitioner received a Show Cause Notice dated
27.02.2013 received on 05.03.2013, asking him to show cause why
proposed administrative action should not be taken.
4. Sh. Ankur Chhibber, learned counsel for the respondents, who
W.P.(C) 1469/2013, C.M. APPL. 2780/2013 Page 2
appears on advance notice argues that the petitioner's role which has
necessitated the show cause notice emerged in the course of Court of
Inquiry. It was submitted that the proposal to remove the petitioner
was initiated during his absence on account of the need felt by the
army authorities to ensure that a Commandant was in place, at the
time of his attachment - during the period October 2012-February
2013. Learned counsel for the respondents submitted that acting on
this, the impugned Signal was issued. It was also submitted that
having regard to the overall circumstances, the army authorities are of
the opinion that for the present, the petitioner should not continue in
Meerut and that a final decision would be taken after due
consideration of all the circumstances and after receiving the reply to
the Show Cause Notice. Learned counsel for the respondents stated
that final decision on his position would be in any event indicated to
the petitioner within three weeks on receipt of reply to the Show
Cause Notice.
5. This Court has carefully considered the submissions and
averments. There is no dispute that after his initial posting consequent
upon his promotion as Major General, he was posted as Commander
of the Base Workshop Gp. EME on 25.052012. Within a few months,
he was attached to depose in Court of Inquiry which continued for
about 7 months. During this period, the army authorities appear to
have moved for to ensure that the Commandant's position in the Base
Workshop was not kept vacant. Concurrently, as soon as the
attachment was ordered, the respondents also appear to have issued a
Show Cause Notice some time in the end of February, on the basis of
W.P.(C) 1469/2013, C.M. APPL. 2780/2013 Page 3
the materials gathered during the Court of Inquiry, calling upon the
petitioner to reply why the action proposed against him should not be
taken. The petitioner is yet to respond to the Show Cause Notice.
Whilst the Court is conscious that the short tenure of the petitioner -
most of which was consumed in the attachment and need for him to be
positioned in Udhampur in the Court of Inquiry proceedings has to a
large interested impeded discharge of his duties as Commandant. The
further circumstance that the Show Cause Notice was in fact issued
and has to be replied to by him cannot be lost sight of. In these
circumstances, the respondents' action, at this stage, cannot be termed
as arbitrary or unjustified to call for intervention under Article 226 of
the Constitution. Having said so, this Court is of the opinion that the
respondents should immediately take necessary action towards finally
deciding the petitioner's case on the basis of the reply to the Show
Cause Notice and final orders to be made. Accordingly, the
respondents are directed to indicate their final order in reply to the
Show Cause Notice within three weeks of the petitioner's response.
At the same time, the respondents shall also issue permanent posting
order of the petitioner, and communicate it to him within the said
period. In the meanwhile, the petitioner's request for continuing in the
quarter, to ease family hardship, if any, shall be dealt with reasonably
and to the extent possible, to suit his convenience. In the event the
petitioner is required for any other proceedings as a witness in the
Court Martial proceedings, the respondents shall ensure his presence
for such limited duration as and when required.
6. The writ petition and pending application are disposed of in the
W.P.(C) 1469/2013, C.M. APPL. 2780/2013 Page 4
above terms. Order dasti to the parties.
S. RAVINDRA BHAT
(JUDGE)
A.K. PATHAK
(JUDGE)
MARCH 06, 2013
'ajk'
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