Hitesh Bhatnagar vs Union Of India & Ors
2014 Latest Caselaw 5299 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(C) 7219/2014

         HITESH BHATNAGAR
                                                             ..... Petitioner
                            Through:      Mr. Indra Sen Singh and Mr.
                                          Pankaj Sharma, Advocates

                            versus

         UNION OF INDIA & ORS
                                                            ..... Respondent
                            Through:      Dr. Ashwani Bhardwaj, Ms. Saroj
                                          Bidawat, Advocates for respondent
                                          No. 1 to 4.
         CORAM:
         HON'BLE MR. JUSTICE KAILASH GAMBHIR
         HON'BLE MR. JUSTICE NAJMI WAZIRI
                          ORDER

%                         28.10.2014

KAILASH GAMBHIR, J. (ORAL)

1. By this petition filed under Article 226 of the Constitution of India,

the petitioner seeks to challenge the order dated 3 rd September 2014

passed by the learned Armed Forces Tribunal.

2. The grievance raised by the petitioner in the instant petition is that

the learned Armed Forces Tribunal has failed to appreciate the fact that

the petitioner had withdrawn the Writ Petition being W.P. (C) No.

7102/2008 due to misrepresentation on the part of the respondents that

the Officer who was the Initiating Officer apropos the two confidential

reports of the petitioner was a Joint Director, but in fact he was a Deputy

Director, thereby incompetent to act as an Initiating Officer. The learned

counsel for the petitioner further submits that the said misrepresentation

by the respondents came to the petitioner's knowledge sometime in the

year 2004 and that he had no means to gain access to such information

prior to that. The contention raised by the learned counsel for the

petitioner is that it is for no other reason save the misrepresentation, that

the said Writ Petition was withdrawn by the petitioner. Another

contention raised by the learned counsel for the petitioner is that the

principle of res judicata as enshrined under Section 11 of the Code of

Civil Procedure, 1908 will not come in the way of the petitioner to seek

his remedy by filing the petition under Section 14 of the Armed Forces

Tribunal Act, 2007 under which an independent legal remedy was

available to him to challenge the correctness and validity of the two

ACRs for the period 1.9.2002 to 31.08.2003 and 1.9.2003 to 14.4.2004.

To support his argument, the learned counsel for the petitioner has placed

reliance on the following two judgments of the Apex Court:-

1. Sarguja Transport Service vs. State Transport Appellate

Tribunal, M.P. Gwalior and others, (1987) 1 SCC 5;

2. Kandapazha Nadar and others vs. Chitraganiammal & Ors., (2007) 7 SCC 65.

3. The learned counsel for the petitioner also submits that the learned

Armed Forces Tribunal did not appreciate the fact that the remedy of the

petitioner to file another Writ Petition under Article 226 of the

Constitution of India on the same issue may be barred but not filing an

independent petition under Section 14 of the Armed Forces Tribunal Act,

2007, which provides the complete mechanism to adjudicate the

grievances raised by the petitioner concerning the said two ACRs and

also the ACRs covering the period from 1.1.1995 to 30.9.1995.

4. We have heard the learned counsel for the petitioner and perused

the judgments relied upon by the petitioner.

5. Indisputably, the petitioner had challenged the correctness and

validity of the said ACRs for the period 1.9.2002 to 31.08.2003 and

1.9.2003 to 14.4.2004 and one of the grounds of challenge raised in the

Writ Petition was that the Initiating Officer Lt. Col. W.S. Rana being a

Deputy Director, was junior in rank as well as in seniority, and was

therefore incompetent to initiate the ACRs of the petitioner. This Writ

Petition was withdrawn by the petitioner which was his conscious

decision after the original records were perused by the Court concerning

the grading of the petitioner by the IO/ RO, therefore, the said withdrawal

cannot be taken as a withdrawal simplicitor but withdrawal by the

petitioner after the Court felt satisfied with regard to the gradings given to

the petitioner by the IO/RO. The said two judgments cited by the learned

counsel for the petitioner would not be of any help in so far as the facts of

the case in hand are concerned.

6. During the course of hearing, the Court had posed a specific query

to the petitioner and his counsel as to whether Lt. Col. W.S. Rana was

officiating as a Joint Director on the relevant date when he acted as an

Initiating Officer with regard to the said two ACRs or if he was posted as

a Deputy Director. The response to the said question was in the

affirmative for Joint Director. If this was the position, then where lies the

question of misrepresentation of any fact by the respondent, at the time of

hearing of the earlier Writ Petition filed by the petitioner? The learned

Armed Forces Tribunal was right in holding that the petitioner also did

not take any steps to seek review of the order dated 29.09.2008 passed by

the High Court, even if he had noticed some kind of misrepresentation

made by the respondents at a subsequent stage. We also cannot lose sight

of the fact that the petition was filed before the learned Armed Forces

Tribunal in the year 2013, although the Armed Forces tribunal had come

into being in the year 2008.

7. In view of the aforesaid circumstances, we do not find any reason

to interfere with the order passed by the learned Armed Forces Tribunal.

There is no merit in the present petition therefore, is dismissed. No costs.

KAILASH GAMBHIR, J

NAJMI WAZIRI, J OCTOBER 28, 2014 pkb