Delhi High Court
Murari Lal Sharma And Anr. vs Union Of India And Ors. on 7 December, 2017
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10892/2017
MURARI LAL SHARMA AND ANR. ..... Petitioners
Through: Petitioners in person.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr.Kirtiman Singh with Mr.Prateek
Dhanda, Mr.Momin Khan &
Mr.Waize Ali Noor, Advocates.
.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 07.12.2017
1. Two petitioners have filed the present petition for seeking relief in the
present petition in respect of the petitioner No.1. Lieutenant Colonel S.S.
Oberoi who has impleaded himself as petitioner No.2 in the present petition
appears along with the petitioner No.1 and submits that he is here to assist
the petitioner No.1 as the latter is not in a financial position to seek legal
assistance for contesting his case.
2. We are of the opinion that simply because Lieutenant Colonel S.S.
Oberoi hold a power of attorney from the petitioner No.1, he ought not to
have impleaded himself in the present petition as petitioner No.2 as the relief
prayed for is only by the petitioner No.1. At best, he could have sought
liberty from the Court to address arguments on behalf of the petitioner No.1
and if the petitioner No.1 so desired, he had the option of approaching the
Delhi High Court Legal Services Committee for granting him legal
assistance, if eligible. In any event, the present petition could only be filed
by the petitioner No.1, as the cause of action relates only to him.
3. Coming next to the maintainability of the present petition in this
Court, we may note that the Registry has listed the matter in Court with an
objection with regard to its maintainability.
4. The petitioner No.1 prays for setting aside an order dated 30.01.2017,
passed by the Central Government, rejecting his petition dated 13.11.2011
and for annulment of the proceedings of Summary Court Martial initiated by
the respondents against him. A perusal of the record reveals that the
petitioner No.1 had initially approached the Armed Forces Tribunal by filing
OA No.203/2014, challenging inter alia, the order of conviction recorded by
the Summary Court Martial that has dismissed him from service and
awarded him a sentence of three months rigorous imprisonment. The
petitioner had filed a Statutory Complaint against the said order whereupon
it was clarified by the respondents that his application had been processed
under Section 162 of the Army Act. The order dated 30.10.2015 passed by
the Armed Forces Tribunal in the OA filed by the petitioner No.1 records
that the Vice Chief of the Army Staff has converted the dismissal order
passed against him into an order of discharge.
5. Noting that the petitioner had a remedy under Section 165 of the AFT
Act, to file an application before the Chief of the Army staff to examine the
proceedings of the court martial, the AFT has set aside the order dated
12.03.2014 passed by the respondents whereby the petitioner No.1's appeal
under Section 165 of the Army Act was rejected, as not being maintainable
and the Chief of the Army Staff or any prescribed officer was directed to
examine the matter under Section 165 of the Army Act.
6. It is stated before us that under Section 3(o) of the Armed Forces
Tribunal that defines the term, 'service matter' is clause (iv) that excludes
matters relating to Summary Court Martial except where the punishment is
of dismissal or imprisonment for more than three months. It is contended
before us that as in the present case, the original punishment awarded
against the petitioner No.1 has been converted into a simpliciter discharge
and the punishment awarded by the Summary Court Martial is no longer of
dismissal or imprisonment for a period of three months, the petitioner No.1
is not in a position to approach the Armed Forces Tribunal for ventilating his
grievance.
7. We are not inclined to accept the said submission made on behalf of
the petitioner No.1. In the present case, the punishment originally awarded
by the Summary Court Martial to the petitioner was of dismissal from
service with rigorous imprisonment of three months. Only subsequently,
was the same converted into an order of discharge. In these circumstances,
it cannot be stated that the present case falls under the exclusion clause of
Section 3(o) of the Armed Forces Tribunal Act. In our view, the remedy of
the petitioner would still lie before the Tribunal.
8. At this stage, liberty is sought by the petitioner No.1 to withdraw the
present petition and approach the appropriate forum for relief. Leave as
prayed for is granted. If the petitioner No.1 proposes to seek legal recourse
before the Armed Forces Tribunal, he shall be entitled to approach the
Secretary, Delhi High Court Legal Services Committee for legal assistance
which shall be so extended, if he is eligible.
9. The petition is disposed of.
HIMA KOHLI, J
REKHA PALLI, J
DECEMBER 07, 2017/gm
