Pankaj Kumar Jha vs The Chief Of The Army Staff And Ors.
2013 Latest Caselaw 1238 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                Decided on : 13th March, 2013


+                                W.P.(C) 1411/2013


       PANKAJ KUMAR JHA                              ..... Petitioner

                                 Through:   Mr. V.S. Tomar, Advocate

                        versus

       THE CHIEF OF THE ARMY STAFF AND ORS
                                                                 ..... Respondents

Through: Mr. Ankur Chhibber, Advocate with Mr. M.P. Sharma, OIC Legal Cell

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

S. RAVINDRA BHAT, J. (OPEN COURT)

1. In this proceeding, a direction is sought to the respondents to accept the petitioner's application dated 17.09.2012 by which he had sought for a UN Mission assignment. The petitioner's application was rejected on 8.10.2012. The reason cited by the respondents was that he was a recipient of the punishment awarded under Section 46(b) of the Army Act in respect of an incident which occurred on 13.12.2005.

2. The writ petitioner avers and his counsel contends that the punishment in question was originally sought to be awarded on 24.12.2005 under Section 46(b) of the Army Act. At the petitioner's representation, the entry in respect of the said penalty had been struck off by the concerned superior officer. In these circumstances, insertion of the same penalty on 16.05.2006, in the petitioner's pay book, virtually amounted to reviewing the order, which was without authority or justification. It was also argued that the entry made on 16.05.2006 was not preceded by any proceeding. The relevant part of the pleading, in this regard found in the writ petition, is extracted below:

"8. That on 24.Dec.2005 the petitioner was charged malafidely under Army Act Sec 46(b) for feigning disease i.e. chest pain and was punished with "SEVERE REPRIMAND" despite his protest by his Commanding Officer, then Lt. Col. Rajiv Bakshi, now a colonel.

9. That aggrieved by the said arbitrary punishment, petitioner sought an interview of the then Brigade Commander, Brig. Kushal Thakur of 56 Mountain Brigade on 25.Dec.2005 against the arbitrary punishment which was granted and after hearing the Petitioner's case the Brigade Commander ordered the CO to cancel the punishment and accordingly the entry made in the pay book of the petitioner was deleted by Second in Command Lt. Col. M S Roy (now Col) and no part II order was published. It is submitted here that PART II order is a legal requirement which needs to be published on occurrence of any event to make it official as per Special Army Order 4/S/88 within 24 hrs. of the occurrence.

10. That on 19 Jan.2007 the petitioner was posted to 3 Maharashtra Bn Girls NCC and after serving for three years and ten months he was posted to 16 JAT on 31.10.2010. While serving with the unit he was promoted to rank of Havildar on

08.4.2011. The unit i.e. 16 JAT moved to Khanpur Camp, Delhi 15 April 2012 being nominated for UN Mission. The petitioner was also scheduled to move on UN Mission along with his unit."

3. This Court had issued notice and required the respondent to produce the relevant record. On an overall consideration of the records, it is apparent that the incident, in respect of which the petitioner was dealt with, occurred on 13.12.2005 when he feigned illness, in order to avoid duty. This amounted to an offence under Section 46(b) of the Army Act. Formal proceedings were drawn in the course of which the petitioner pleaded not guilty. The record would show that Lt. Col. Rajiv Bakshi, the OC, noted the punishment of severe reprimand on 24.12.2005. Apparently, however, this punishment was not formally notified in accordance with the Army Act, which required a Part II order. This was done later - evident from the very same record, on 16.05.2006. On that date, the Part II order was published.

4. The above facts, gleaned from the official records, were not denied by the counsel, who sought to highlight the fact that passing of the Part II order was illegal and malafide. It was further argued that the writ petitioner had represented against the recording of the severe reprimand under Section 46(b) of the Army Act, sometime in 2007, after he became aware of it when he got possession of the Pay Book.

5. The above narrative would show that at the time when the petitioner approached the Court, his entire grievance was that an unauthorized and illegal entry of severe reprimand in his Pay Book was recorded. He premised the petition on the footing that the entry made on 24.12.2005 was

struck off by the Commanding Officer and then again brought back w.e.f. 16.05.2006. It was his case that the cancellation was made by the Second in Command, Lt. Col. M.S. Roy, and that no Part II order was published. In the proceedings before this Court, it was demonstrated by the respondents that the Part II order which was indeed published on 16.05.2006 related to the same incident, i.e. one of feigning illness on 13.12.2005, which related to the punishment originally awarded on 24.12.2005.

6. All this was within the knowledge of the petitioner, who has nowhere pleaded that he was aggrieved by the said severe reprimand or that he challenged it on account of malafides or its introduction in his pay book was without authority of law. He has not even urged that in the present writ petition.

7. This Court has noticed all the above facts because the original contention of the petitioner was that the 16.05.2006 noting was not accompanied by a Part II order and that what was originally struck off on orders of the then Commanding Officer, was virtually brought back onto his record without following any known procedure in accordance with law. However, the official records speak otherwise. They clearly reveal that the summary trial was conducted on 24.12.2005 and the conclusion was also recorded on the same day. However, the publication of that in the Part II order took place on 16.05.2006. All this was within the knowledge of the petitioner; but he chose not to challenge it and has approached this Court only now. The obvious inference, therefore, is that the petitioner accepted the correctness of the reprimand and consequently, did not challenge it or articulate any grievance.

8. Having regard to this, the court is of the opinion that the petition cannot succeed. It is accordingly dismissed.

S. RAVINDRA BHAT (Judge)

SUDERSHAN KUMAR MISRA (Judge) MARCH 13, 2013 rd