Daya Shankar Tiwari Vs. Union of India (Uoi) and ors. - Court Judgment

Rakesh Tiwari, J.

1. Heard the petitioner, in person ; Sri Shishir Kumar for the respondents and perused the records of the writ petition as well as the records of the earlier writ petitions as is necessary to decide the controversy in this case.

2. The instant writ petition, instituted under Article 226 of the Constitution of India, has a chequered history. It has been filed for issuance of suitable writs and directions for quashing the impugned orders dated 21.10.1999 and 12.4.2000, contained in Annexures 5 and 5-A respectively to the writ petition.

3. By order dated 21.10.1999, the petitioner was dismissed from service by Commandant, A.S.C. Centres (South), Bangalore under Army Act 20 (3) declaring the petitioner as deserter w.e.f. 2nd May, 1996. By order dated 12th April, 2004, the representation of the petitioner dated 21st January, 2000, pursuant to the direction contained in judgment of this Court dated 11.1.2000 in Civil Misc. Writ Petition No. 1458 of 2000 was rejected by respondent No. 3.

BACKGROUND OF THE CASE

4. The facts, as culled out from the writ petition and records of past litigation, in brevity, are that the petitioner was enrolled in Army on 28.6.1977 as sepoy driver (M.T.). He sustained severe injuries on 16.8.1980 with his motor cycle in a road accident while he was posted at Panagarh. He was operated upon for 'fracture Mid Shaft Femur' in left thigh. The injury was attributed to 'Military Service In Peace' on 'bona fide Government duty'.

5. There have been intermittent review/assessments of the medical category of the petitioner. He was initially placed in medical category

'CEE' (temporary) for six months w.e.f. 11.2.1981 and again in the same category for another period of six months w.e.f. 20.8.1981. His medical category was then upgraded to 'BEE' (Permanent) w.e.f. 12.11.1982. Relevant portion of Army Order 146/77 is reproduced below :

'Category- 'B'-- An individual will be placed in medical category 'B', who has only a moderate degree of disability, which does not interfere with the performance of normal work and whose functional capacity, assessed under the five factors defined in para 3 above, conforms to the standards given in column 1 of the table given below.

The employability restrictions applicable to personnel in this category, depending on the nature of their disability, are shown in column 2 of the above.

(a) XXX XXX XXX

(b) XXX XXX XXX

(c) (i) XXX XXX XXX

(ii) Lower Limb : Has slight defects of locomotion but these do not incapacitate him from making normal movements of daily work.

Note : In addition to normal classification in medical category 'B' specialists, technicians, regulars, reservists and specially enlisted men who are required for definite duties may be acceptable in this category provided the M.O. considers them capable of performing the duties for which they are required e.g. a man might be acceptable in medical category 'B', provided he could see for ordinary purposes and only had a moderate degree of disability or defects of locomotion.'

6. The disability of the petitioner was assessed to be less than 20% on 12.11.1982 by a medical board. It was observed by the Board that the medical category of the petitioner be reviewed and decided after two years. The relevant portion of Army Orders, para 14 of 146/77 is reproduced as follows :

'14. Persons placed in temporary low medical categories will be reviewed by R.M.O. on expiry of the period for which temporary category was awarded. Persons placed in permanent low medical categories will appear before medical boards over two years for review/re-categorisation. However, if the officer-in-medical-charge of troops feels at any time that the existing permanent low medical category of an individual needs further down gradation, he will arrange to bring him before a Medical Board immediately, irrespective of the time completed by the individual in the existing medical category.'

7. Prior to the due date for re-categorisation by the medical board, the petitioner was transferred on 20.3.1984 from 368 (I) supply platoon located in peace area to 514 A.S.C. battalion located in field area. The field duty is not given to persons of less than 'AYE' category, i.e., medical category 'AYE' is must for posting and duty in field area. No review medical board was constituted in terms of Para 14 of Army Order 146/77 till then for reconsideration of medical category of the petitioner presumably being in 'AYE' medical category as he was posted in field since 20.3.1984 to 25.4.1987.

8. On due date i.e., 12.4.1984 for deciding the medical category in by medical board, no action was taken by the respondents for more than two years. No reason is disclosed by the authorities-respondent No. 3, for not holding the Board proceedings in spite of repeated letters by the O.C. Unit for sending relevant papers for re-categorisation of the petitioner. Ultimately, relevant papers were sent with delay. After sanction was granted, proceedings for medical re-categorisation of the petitioner were initiated. He was sent to the Classified Specialist Surgeon and Orthopedic on 15.7.1987 for his opinion who opined as under :

'Summary and opinion of Lt. Col. Ashok Kumar and classified

Specialist Surgeon and Orthopedic Surgeon Dehradun dated 15.7.1987.

An old case of fracture mid shaft femur (Lt). Operated in Med. Cat. BEE (P) w.e.f. 12.11.1982. Last review was done on 30th July, 1986. Report for release Medical Board. Injury sustained on 16.8.1980 as result of motor cycle accident-K-nailing was done on 23.4.1987. K-Nail was removed on 1 1.6. 1987. AE present asymptomatic. He is ambulatary. Operation seen, well healed. Fracture has united clinically and medico logically. Last 20 of flexion of left hand restricted. Recommended he may be released in Medical Category BEE (P).

Sd/-Illegible

(Ashok Kumar)

Lt. Col. A.M.L

Classified Specialist Surgeon and Ortho

In view of the above individual is brought before a Medical Board.'

'Grounds of Competent authority todischarge authorise dischargeIII (v) All other Brigade/Sub Area classes of discharge Commander9. As per direction of the medical board, the petitioner attended Military Hospital, Abohar on 11.2.1987 for removal of K-Nail. For certain reasons, the petitioner could not be operated upon and was transferred to Base Hospital, New Delhi on 20.2.1987 for the removal of K-Nail. There too he was admitted for 6 days and was released from the hospital on 26.2.1987 without removal of K-Nail without assigning any reason. The petitioner returned to unit and continued to perform his duties in the field allegedly in Medical Category-'A'.

10. In the meantime, respondent No. 3 proposed discharge of the petitioner from service treating him in Medical Category BEE (P) under Army Rules 13-III (V), without completing proceeding for re-categorisation of the petitioner by the medical board though it was necessary on the part of the respondents to decide the medical category on expiry of each two years. The discharge order of the petitioner was passed allegedly without following the procedure. Army Rule 13-III (V) is as under :

Manner of discharge

The Brigade or Sub Area the Commander before ordering the discharge shall, if the circumstances of the case permit, give to the person whose discharge is contemplated an opportunity to show cause against the contemplated discharge'

11. A medical board was again held on 15.7.1987 at Military Hospital, Dehradun. From the above report of the Specialist, it is evident that the petitioner at that time was asymptomatic i.e., there was no sign of disease and it was recommended that the petitioner be placed in medical category BEE (P). The Board found the petitioner unfit for retention in service. In view of the aforesaid opinion and recommendation of the medical board, proceedings were held wherein recommendation of the Specialist was approved for the purpose of discharge with 20% disability. He was discharged from service without any notice to show cause w.e.f. 1.9.1987 due to being placed in Lower Medical Category i.e. B-(Permanent) i.e., lower than 'AYE'. The cause of discharge in the order dated 20.8.1987 reads as under :

'Discharged being placed in Medical category lower than 'AYE' and not upto prescribed Military Physical Standard.'

12. It appears from the records that the petitioner had also submitted application on 4.11.1982 under Para 143 of the Regulations of Army, Vol. I-

Revised Edition 1987 for being appointed on the post of Junior Camp Officer (Religious Teacher) called 'Pandit'; hereinafter referred to as 'J.C.O. (RT)'. The application/ representation of the petitioner for re-enrolment was rejected vide order dated 20.3.1987 as under :

'1. Refer to your letter No. 563/47/ST-12 dated 4th November, 1982.

2. Since vide letter No. 13832478/Sept. D.V.R. (M.T.) D.S. Tewari of your unit has been downgraded to medical category B-(Permanent) he is not eligible for remustering as J.C.O (Religious Teacher)-Pandit.

Sd/- T. Rao, 20.3.1987

Capt.

R.O.

for Offg. Officer Incharge'.

History of Litigations ; Individual v. Organization :

13. The petitioner made frantic efforts to get himself enrolled, but in vain. Consequently, he filed Civil Misc. Writ Petition No. 21823 of 1987 praying for following reliefs :

'(1) Call for the records of the case, issue writ, direction or order in the nature of 'certiorari' quashing the order dated 20.3.1987 passed by opp. party No. 4 annexed as Annexure-3 to the writ petition which was served to the petitioner on 31.8.1987.

(2) issue mandamus commanding the opp, parties to send the petitioner to be examined by the Medical Board constituted for the said purpose under the Army Act and Rules and take the petitioner in service forthwith.'

14. The said writ petition was heard and disposed of vide judgment and order dated, 28.1.1992. The relevant portion of the judgment reads as below :

'It is contended that on account of fracture in the left leg, the petitioner became disabled for discharging his normal functions, therefore, he was discharged.

However, his services can be retained as per the provisions contained in Annexure-C.A.-1 to the counter affidavit. The grievance of the petitioner is that despite his several representations and applications for being appointed, nothing has been done.

In the counter-affidavit, refuting the submission of the petitioner, it is contended that at no point of time, the petitioner made any application for being appointed in accordance with the rules.

The relevant rule referred to above finds place in Annexure-C.A.-1 to the counter-affidavit wherein in Clause (2) a general principle has been enumerated for retention in service in alternative employment. According to it, ordinarily permanent low medical category personnel will be retained in service till completion of 15 years service in the case of J.C. Original suit and 10 years in the case of OR.

In the circumstances of the case, if the petitioner is still entitled to get benefits of the above provisions, and if he makes appropriate application for it within a month from today, his application shall be considered and decided according to the Rules within a period of three months from the date of its receipt and the decision taken thereon will be intimated to him.

With the above observations, the petition is disposed of at the admission stage.

28.1.1992. B.M. Lal'

15. Pursuant to the judgment dated 28.1.1992, the petitioner was required to furnish a willingness certificate for retention in service. Upon completing the formalities and recommendation made by the O.C. Unit to the effect that the individual could be suitably employed in his own trade, he was re-enrolled in service.

16. The petitioner again moved an application dated 22.2.1992 to the

Records Officer A.S.C. (M.T.) for appointment on the post of J.C.O. (RT) inter alia that his application be treated in continuation of the earlier application dated 4.11.1982.

17. In the meantime, after interdepartmental communications between the A.S.C. (MT) and the Army Headquarters, New Delhi, medical examination of the petitioner was again carried out on 17th October, 1992 at Military Hospital, Varanasi in pursuance of the letter dated 8th September, 1992 of the Army Headquarters. By letter dated 23.2.1993, the petitioner was informed to report to the office of B.R.O. Varanasi for medical examination under Para 143 of Army Regulations. Accordingly, he reported and was examined. His medical category was recorded as AYE. Consequently, the petitioner was re-enrolled as sepoy-driver (MT).

18. Being aggrieved by the order of re-enrolment, instead of retention in service, he filed writ petition No. 13885 of 1995. Following main reliefs were prayed for :

(i) Issue a writ, order or direction in the nature of 'certiorari' quashing the order dated 20.3.1987 passed by opposite party No. 2 annexed as Annexure 4 to the writ petition, which was served to the petitioner on 31.8.1987.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to pay the arrears of salary from the date of discharged period.

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner as a continuation in service.

(iv) Issue a writ, order or direction in the nature of mandamus directing the respondents to give all consequential service benefits to the petitioner.

(v) Issue a writ, order or direction in the nature of mandamus to direct the respondents to

consider the application dated 4.11.1982 of the petitioner to Religious Teacher.'

19. The writ petition was disposed of vide judgment dated 27.11.1996. It was held that:

'So far as the claim for posting as J.C.O. (RT) is concerned, in paragraph 21 of the counter affidavit, it has been pointed out that the post of JCO (RT) is a commissioned post of Junior Officer, for which certain requisite qualification are necessary. The petitioner does not possess requisite qualification, therefore, he cannot be considered for the same. Admittedly, the petitioner was a Sepoy which is the lowest rank in the Army. On re-enrolment, he cannot be posted in a post higher than the post he had held. From the Army Instruction No. 204 it appears that the recruitment in the post of J.C.O. (RT) is made direct from the rank of Jamadar or Naib Subedar in the ratio of 3 : 1 provided they fulfil age limit of 25-35 years and are found medically fit in the category and possess the educational qualification provided in paragraph 5 thereof and are selected in the manner provided in paragraph 6 by the Recruiting Officer in consultation with Commanding Officer of the unit concerned. Thus, it appears that the petitioner being the Sepoy cannot come within the ambit of consideration for recruitment to the said post. Therefore, the said claim cannot be maintained by the petitioner.

Over and above, in the writ petition also no such prayer has been made though several representations have been made, as it appears from different annexures annexed with the writ petition.

Therefore, it is not possible to accept the submission of the learned Counsel for the petitioner so far as this aspect, namely, the posting in the post of J.C.O. (RT) is

concerned. However, the petitioner shall be at liberty to draw his pay and allowances as Sepoy/Driver since the date of his joining duty, provided he is working, as admissible under law. The respondents shall consider the question of giving all benefits of Regulations 143, 144, 145 if the petitioner is found so eligible. If the petitioner is found eligible for these benefits, the same shall be given to him as early as possible. The question of payment of arrears and current pay and allowances shall be considered as early as possible preferably within three months from the date of production of certified copy of this order before the concerned authority.

With the above observations, the writ petition is disposed of finally. There will be no order as to cost.

Certified copy of this order shall be furnished to the learned Counsel for the parties on payment of usual charges within seven days.

Dt. 27.11.1996. Sd/- D.K. Seth'.

The review application by the petitioner was also dismissed on 5.2.1997 giving rise to Special Appeal Nos. 132 of 1997 and 154 of 1997. These appeals were presented in the Registry on 19th May, 1995, i.e., while the petitioner was still working as Sepoy-Driver (MT) upon his being re-enrolled pursuant to the orders dated 23.2.1993, aforesaid.

20. The petitioner was again discharged from service w.e.f. 31.7.1996 vide order dated 14.8.1995. The petitioner preferred Civil Misc. Writ Petition No. 13165 of 1996 wherein he challenged the validity of the order dated 14.8.1995 discharging him w.e.f. 31.7.1996 basically on the ground that immediately after the notice of discharge was served on him, he had lodged a complaint dated 19.9.1995 before Chief of Army Staff for cancellation of the discharge order which ought to have decided within the period of 90 days as provided in Sub-clause (4) (b) of para 361 of the Defence Service Regulation. He, therefore, prayed for issue of writs :

(a) in the nature of 'ceritorari' quashing the order dated 14th August, 1995 discharging him in the afternoon of 31st July, 1996.

(b) In the nature of mandamus commanding the respondents not to discharge him and not to give effect of the order dated 14.8.1995, prior to a decision on the statutory complaints dated 19.9.1995 pending before the Chief of Army Staff.

(c) In the nature of mandamus commanding the respondents to issue identity card, pay books, kit etc., to the petitioner and also to give all consequential service benefits to him.

21. The writ petition was also dismissed on 5.7.1999 holding that the petitioner had completed 40 years of age on 31.7.1996 and in no case he could serve in the Army beyond the age of 40 years and, therefore, he stood discharged in the afternoon of 31.7.1996; that there is nothing in the instruction No. 1/3/76 or Para 143 of the Regulations or in the letter No. A/32395/Vill/Org-2 MP (c)/713-S/A/D (AG) dated 10.5.1977 to indicate that the intervening period between the date of discharge and re-enrolment shall be counted for reckoning the pensionary benefits. It was also held that no rule could be cited for counting intervening period from the date of discharge and claim for seniority. The crux of the matter is that after re-enrolment, the petitioner was to stand discharged on attaining 40 years' of age in terms of the conditions of his re-employment and that the discharge order dated 14.8.1995 was issued in terms of item No. 3-I (I) of the table annexed to Rule 13 (2) of the Army Rules, 1954. Since there has to be cessation of the employment of the petitioner, on re-employment and on attaining the age of

40 years, which was a pre-known event, the question of violation of principles of natural justice did not arise as the said order was not passed by way of punishment. Accordingly, notice/order dated 14.8.1995 discharging the petitioner from the post of driver (M.T.) w.e.f. the forenoon of 1.8.1996 was found to be in accordance with the terms of re-enrolment as well as the Army Rules. It was held that the respondents did not commit any error in passing the said order and therefore, it was held that it was not a fit case in which extraordinary jurisdiction under Article 226 of the Constitution of India should be invoked. Not being satisfied with the judgment, the petitioner preferred Special Appeal No. 540 of 1999 against the findings in judgment dated 5.7.1999 which was also dismissed vide judgment dated 18.11.1999 holding that--

It is not disputed that complaint filed by the appellant before respondent No. 1 was not disposed of prior to his discharge from service. However, the contention of the appellant's counsel that the respondent No. 1 could not discharge the petitioner until the disposal of his complaint is without substance for two reasons, first that there is no regulation dealing with such situation and providing that the Army personnel shall not be discharged before disposal of a complaint if it is so made, second that the confirmation of the order dated 14.8.1995 and discharge of the appellant amounts to an automatic rejection of his complaint.

For the above reasons, we are of the definite opinion that the learned Single Judge committed no error in dismissing the writ petition and refusing to grant relief as prayed by the appellant. The appeal is without merit and deserves to be dismissed.

It is accordingly dismissed.

Dated : 18.11.99. Sd/- G.P. Mathur Sd/- Bhagwan Din.'

22. After discharge from the service, the petitioner was sanctioned pensionary benefits on the ground of disability since 1.9.1987 to 10.4.1993. As stated above, he was medically examined and having been found fit, was so enrolled in service on the same post. The petitioner after his re-enrolment had performed his duties since the date of his joining till 31.7.1996 regularly. But due to his re-enrolment in service, the petitioner was not paid the retiral benefits, as such. He then preferred yet another Civil Misc. Writ Petition No. 1458 of 2000 for a writ of mandamus directing the respondents to release all the retiral benefits alongwith interest from the date of retirement i.e., 31.7.1996 till date. The prayers in the writ petition were as under :

'(i) to issue a writ, order or direction in the nature of mandamus to direct the respondent to release amounts of retiral benefits like pension, Gratuity, Insurance, Provident Funds etc., alongwith interest which is illegally retained by the respondent.

b1 (ii) to issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(iii) to award the costs of the petition to the petitioner,'

23. It was claimed in the writ petition by the petitioner that he is entitled to retiral benefits for the period of his service, i.e., from 28.6.1977, the date of his appointment upto 31.7.1996; and that non-payment of the benefits was against law of natural justice and in violation of Articles 21 and 311(2) of the Constitution of India. The aforementioned writ petition was disposed of on 11.1.2000 with a direction that if the petitioner moves a representation within a period of six weeks, the same be decided by the Officer-in-charge, A.S.C. Records (M.T.), Bangalore in accordance with law, by a speaking order within a further period of three months from the date a certified copy of the order is produced before him.

24. Accordingly, the petitioner moved a representation dated 21.1.2000 which was rejected by Col. G.M. Khan, Officiating Incharge (Records) vide order dated 12.4.2000. It is also evident from the perusal of the order that it is alleged in it that the petitioner was neither apprehended nor reported voluntarily and, as such, he was declared deserter w.e.f. 2.5.1996. The petitioner instituted Civil Misc. Writ Petition No. 42424 of 2000, D.S. Tewari v. Chief of Army Staff and Ors. challenging the validity of the orders dated 12.4.2000 and 21.10.1993 which are also impugned in the instant writ petition. His prayers in the writ petition were :

(i) to issue a writ, order or direction in the nature of 'certiorari' calling for the records of the case and to quash the impugned orders dated 12.4.2000 and 21.10.1999 passed by the respondent No. 3 ;

(ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the post retirement benefits and arrears of salary to the petitioner with interest @ 18% till the date of payment ;

(iii) to issue any other such order or direction which may be deemed fit and proper under the circumstances of the case ;

(iv) award costs to the petitioner.

The aforementioned Civil Misc. Writ Petition No. 42424 of 2000 was allowed by judgment and order dated 5.3.2002. The operative portion of the judgment runs as under :

'Coming to the present case it is alleged that petitioner absented on 2.5.1996. The circumstances under which he absented are spelt out in the representation filed by his wife on 18.5.1996. She stated in the complaint that on account of Court case filed by the petitioner

he was being harassed. On 6.5.1996 when he served copy of affidavit of service upon the respondents' counsel in writ petition No. 1014 of 1996 and returned to his unit he was threatened for arrest and that at 11.00 p.m. in the night when he went to his bed one individual started slapping and threatened to beat severely if he will attend the Court. The petitioner felt unsafe in the Unit and, therefore, he left the unit and informed through the telegram to his superior officers. A prayer was made in the application that supreme authority, namely, the Chief of Army Authority, New Delhi to which the application was addressed, may pass suitable orders for attachment in any other local unit so that petitioner may surrender for further legal action. The application was acknowledged on 11.7.1996 by the Directorate General of Army Staff, Army Headquarters, New Delhi. The receipt was acknowledged and it is stated that the matter is being looked into. It appears that a Court of inquiry was ordered on the complaint and a communication with this regard was sent to the petitioner, but the fact of the Court inquiry and any decision taken on application for surrender has not been brought on record.

It is apparent from the record that petitioner was, in the meanwhile pursuing his Court cases. The writ petition No. 13885 of 1995 was decided on 27.11.1996. Review application No. 655 of 1996 was dismissed on 5.2.1997. Special Appeal No. 132 and 131 of 1997 were decided on 1.9.1997 and that a review application was dismissed on 23.1.1998. Orders were passed on Special Leave Petition by Supreme Court on 23.1.1998. The petitioner was appearing in the Court all alone. He appeared in person in Special Appeal which was decided on 1.9.1997. The Army Authorities were fully aware of his availability in Courts and whereabouts. In the Counter Affidavit filed in Special Appeal the respondent has stated that petitioner was discharged from army on 31.7.1996. This was apparently a wrong statement given to mislead the petitioner as well as the Court both. In the records of Army Authorities the petitioner has been treated as a deserter. In case the petitioner was treated to be absconding and was thus treated as a deemed deserter, this fact could be easily brought to the knowledge of the Court either by an application or even orally. It is strange and surprising that the petitioner who was contesting Court cases, appearing in person and was available all alone was being treated as a deserter and warrants of apprehension were issued against him and that finally after the decision of the Court case he was dismissed from Army under Section 20(3), holding that the show cause notice is not practicable to be given to him, treating him as deserter w.e.f. 2.5.1996.

Section 106 of the Army Act provides that where a person is absent without leave, a Court of inquiry is to be held, to find out whether his absence is without due authority or other sufficient cause, for reaching to any conclusion. It is necessary for the army authorities to at least give notice to a person who is held to be absent without leave and to consider the cause of his absence. He can be declared deemed deserter after holding Court of inquiry and communicated that he is being treated as absent without due authority or sufficient cause and if afterwards he does not surrender or is apprehended he shall be deemed to be a deserter. In the present case, no such inquiry appears to have been held. The petitioner who was available in Courts and a statement was given that he has been discharged upon attaining forty years of age on 31.7.1996, was treated to be absent without leave and thus a peace time deserter.

Section 20(3) of the Act can be resorted to after a notice is given to the person under Rule 17. If it is not reasonably practicable to give notice order can be passed for his dismissal after giving a certificate to that effect. In the present case, the petitioner had applied for surrender. The application of his wife to that effect was acknowledged and further that he was contesting the cases and was present in Courts, arguing in person. The certificate that compliance of Rule 17 was not possible is wholly illegal, arbitrary and appears to have given without placing correct fact before the competent authority. The petitioner was thus, treated wholly unfairly and unreasonably at the hands of Army Authorities.

On the facts and circumstances, the writ petition succeeds and is allowed. The impugned order dated 21.10.1999 insofar as it dismisses the petitioner from service under Section 20(3) of Army Act w.e.f. 2.5.1996, treating him as deserter, and the order dated 12.4.2000 (Annexure-4 to the writ petition) rejecting petitioner's representation for pension are quashed. Petitioner shall be deemed to have been discharged from active service in Army w.e.f. 31.7.1996 after competing the age of forty years and is held entitled to pension. A mandamus is issued restraining the respondent from recovering Rs. 3,900/- and to pay him the entire arrears of retirement benefits including pension and finalising this pension papers with 12% simple interest within a period of three months from the date a certified copy of this order is served upon the respondents. The costs of this petition is granted to be Rs. 5,000/- to be paid to petitioner, who has appeared in person.

Sd/- Illegible

Dt. 5.3.2002 Sunil Ambwani, J.'

The aforesaid judgment was challenged in Special Appeal No. 376 of 2003.

Chief of Army Staff v. D.S. Tewari

25. By judgment and order dated 22.7.2003, the Division Bench in Special Appeal quashed the judgment and order dated 5.3.2000 passed in Civil Misc. Writ Petition No. 42424 of 2000 holding that the writ petition itself was not maintainable as the petitioner had not impleaded Union of India--a necessary and proper party in the writ petition. However, the petitioner was granted liberty for filing fresh writ petition, impleading Union of India as a respondent. The operative portion of the judgment dated 22.7.2003 in Special Appeal No. 376 of 2003 is as under :

'Thus we reach the inescapable conclusion that the writ is not maintainable against the Government Officers or the employees of the State, it lies only against the State and if State is not impleaded, the writ is not maintainable.

Thus, in view of the above, we hold that the preliminary objection raised by the learned Counsel for the appellant that writ petition was not maintainable as Union of India, a necessary party, has not been impleaded, has merit. The appeal is allowed only on that ground. The impugned judgment and order dated 5.3.2002 is hereby set aside. There will be no order as to costs.

Sd/- B.S. Chauhan, J.

Sd/- D.P. Gupta. J.'

Dt. 22.7.2003

26. The application for modification of the aforesaid judgment dated 22.7.2003 was also dismissed.

FACTS OF THE WRIT PETITION

27. In the aforementioned context, the instant writ petition has been instituted by the petitioner after impleading Union of India as respondent No. 1 pursuant to the judgment dated 22.7.2003 in Special

Appeal No. 376 of 2003. The salient facts leading to the filing of this petition have already been given under the heading of Background and History of Litigation in the body of this Judgment and are not being repeated. The petitioner has prayed for the following reliefs :

(i) to issue a writ, order or direction in the nature of 'certiorari' calling for the records of the case and to quash the impugned orders dated 12.4.2000 and 21.10.1999 passed by the respondent No. 3 ;

(ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the post retirement benefits and arrears of salary to the petitioner with interest @ 18% till the date of payment.

(iii) to issue any other such order or direction which may be deemed fit and proper under the circumstances of the case.

(iv) award costs to the petitioner.

SUBMISSIONS OF THE PETITIONER

28. The petitioner, who has appeared in person, submitted that he had been treated unfairly by the army and discharged him only on one pretext or another in complete violation of army rules/regulations and the law. It is submitted that firstly the medical board was not constituted when due and after much delay paper work was done to prepare for his discharge showing in the category BEE (P) though he was performing his duties in the field which is an 'AYE' category duty; further, without waiting for constitution and opinion of medical board, the Record(s)-respondent No. 3, on its own took a decision for his discharge which was against rules and regulations. Later on, he was re-enrolled pursuant to judgment of this Court dated 28.1.1992 in Civil Misc. Writ Petition No. 21823 of 1987 though he was entitled to retention as per the own document Annexure C.A.-1 filed in that writ petition as was noticed by the Court in the aforesaid judgment dated 28.1.1992.

29. It is further submitted that while he was performing his duties, he was not only threatened with arrest and dire consequences when he returned to the unit on 6.5.1996 after serving a copy of affidavit of service, he was also beaten and warned not to attend the Court and withdraw all his petitions. He was tortured to such an extent that in the circumstances, he had to leave the unit on 2.5.1996 to save his life. The authorities in the unit were not paying any heed to his plight as he did not succumb to the pressure of the respondents to sign unwillingness certificate as well as he refused to withdraw the writ petition. As soon as he left the unit on 2.5.1996 to save his life, he immediately informed the Divisional Commander, Infantry Division, 56-A.P.O. through telegram and post to his superior officer detailing the facts and circumstances under which he had to leave the unit and offering himself for surrender and attachment to some other local unit. He also gave details of address and his whereabouts as well as contact telephone number but no action was taken by the army authorities to contact him or to communicate with him. He also sent an application to the Chief of Army Staff informing about the incident and praying for attachment to a local unit and issuance of necessary orders for his surrender.

30. He further submits that on coming to know about the apprehension roll, his wife informed the Chief of Army Staff vide letter dated 6.5.1996 about the incident in the unit which had compelled the petitioner to leave the unit. The circumstances in which he had to leave the unit are also contained in the representation given by his wife dated 18.5.1996. In turn the Director General, Army Headquarters, New Delhi, informed the wife of the petitioner that the matter is being looked into and further communication will follow. The application of the petitioner dated 13.4.1995 addressed to Chief of Army Staff was also returned to him. Copies of the letter dated 19.10.1995 regarding torture etc., and leave certificates dated 20.3.1996 and unwillingness certificate have also been filed as Annexures 1, 2 and 3 to the Supplementary Affidavit.

31. It is further submitted by him that the respondents in their counter affidavit filed in Special Appeal stated as a fact that petitioner had been discharged on attaining the age of prescribed 40 years, whereas in fact, the petitioner was actually forced and compelled to leave Army on 2.5.1996 before completing 40 years. He stated that he was, in no manner, a deserter in the peculiar circumstances as declared by the army ; that this fact is also evident from various correspondence and annexures appended in the writ petition, counter affidavit and supplementary affidavit etc., forming part of the record of the case. He states that he had informed the authorities about his whereabouts, offered surrender before any other unit, and had even tried to apprise the Chief of Army Staff personally about the correct facts but was denied meeting on the ground that his identity card was not with him having been left behind in the unit when he was compelled by the circumstances to go into hiding. He further states that action on the letter written by his wife dated 18.5.1996 as well as letter/complaint made by him regarding harassment was initiated but they were suppressed to conceal true facts and that he was illegally declared as deserter w.e.f. 2.5.1996 to deny pension and other retiral benefits.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

32. On the contrary, the learned Counsel for the respondents submits that immediately after coming to know regarding the absence of the petitioner without information from unit concerned, the whereabout of the petitioner were inquired. The petitioner was marked absent in the attendance register maintained in the unit for the purposes of attendance of various Jawans in the unit as he had deserted the unit without any information. Subsequently on 6th of May, 1996 a letter to the Superintendent of Police Ballia was issued for apprehending the petitioner and copy of that letter was also sent to the wife of the petitioner under Section 105 of the Army Act, 1950. Section 105 of the Army Act is quoted below :

'105. Capture of deserters--(1) Whenever any person subject to this Act deserts, the commanding officer of the corps, department or detachment to which he belongs, shall give written information of the desertion to such civil authorities as, in his opinion, may be able to afford assistance towards the capture of the deserter, and such authorities thereupon shall take steps for the apprehension of the said deserter in like manner as if he were a person for whose apprehension a warrant had been issued by a Magistrate, and shall deliver the deserter, when apprehend into military custody.

(2) Any Police Officer may arrest without warrant any person reasonably believed to be subject to this Act, and to be a deserter or to be travelling without authority, and shall bring him without delay before the nearest Magistrate. To be dealt with according to law.'

33. On the letter of the wife of the petitioner, the petitioner through written statement instructed to rejoin duties incidentally in the same unit where he was tortured and threatened with life. It is stated that when the petitioner did not report to his unit as directed and the Superintendent of Police Ballia did not apprehend him, a reminder was again sent on 30.5.1996.

34. It is further stated by the learned Counsel for the respondents that Section 106 of the Army Act provides for procedure regarding the enquiry/absence without leave. When in spite of the two letters to the Superintendent of Police concerned, the petitioner was not apprehended the procedure provided under Section 105 of the Army Act was followed and a Court of inquiry was held under Section 106 of the Army Act. Part of the order was passed on 6.6.1996 and by order dated 15.6.1996, the Court recorded a finding that the petitioner had absented himself without leave w.e.f. 2.5.1996 and further remained absent without leave for more than 30 days. Thereafter, the petitioner was declared as a deserter vide order dated 20.6.1996. Section 106 of the Army Act, 1950 deals with capture of deserters and inquiry into absence without leave. Section 106 is quoted as below :

'106. Inquiry into absence without leave--(1) Whenever any person subject to this Act has been absent from his duty without due authority for a period of thirty days a Court of inquiry shall, as soon as practicable, be assembled and such Court shall, on oath or affirmation administered in the prescribed manner, inquire respecting the absence of the person, and the deficiency, if any, in the property of the Government entrusted to his care, or in any arms, ammunition, equipment, instruments, clothing or necessaries and if satisfied of the fact of such absence without due authority or other sufficient cause, the Court shall declare such absence and the period thereof and the said deficiency, if any, and the commanding officer of the corps or department to which the person belongs shall enter in the Court Martial book of the corps or department a record of the declaration.

(2) If the person declared absent does not afterwards surrender or is not apprehended, he shall, for the purposes of this Act be deemed to be a deserter.'

35. Sri Shishir Kumar then submits that the case of the petitioner was thereafter recommended to the Record Office who is appropriate authority for the purposes of passing appropriate order of the relevant record officer. The Record Office passed order of dismissal on 21.10.1999 and by order dated 12.4.2000 the representation of the petitioner in pursuance of the judgment dated 11.1.2000 was rejected. The petitioner was dismissed from service w.e.f. 21.10.1999 in terms of Army Act, Section 20(3) and Army Headquarters letter dated 11.3. 1980 as amended vide letter dated 4.2.1987.

36. It is urged by the learned Counsel for the respondents that the petitioner was initially enrolled on 28.8.1977 in the army and was discharged from service on 1.9.1987 on the ground of low medical category; proper procedure as provided under the Act and Rules have been followed and the petitioner is not entitled to any benefit as he did not complete minimum 15 years of service for the purposes of getting the pension even if both the employment of the petitioner is counted inspite of that the petitioner had completed only 13 and half years of service in Army disentitling him from his claim for pensionary benefits. It is further argued that he was re-enrolled on 10.4.1993 and deserted from unit without any information on 2.5.1996 about three months prior to his attaining the age of 40 years i.e., when he was to retire, as such, he is not entitled for any pensionary relief as claimed in the writ petition due to the break in service between 1.9.1987 to 10.4.1993. Since the petitioner was dismissed from service under Section 20(3) of the Army Act as a peace deserter, it is alleged that he is not entitled to pensionary benefit under Regulation 132 of Pension Regulation for the Army 1961, which is as under :

'132. Minimum qualifying service for pension.--The minimum period of qualifying service (without weightage) actually rendered and required for earning service pension shall be 15 years.'

37. The petitioner had been denied pension on the ground that he was re-enrolled on 10.4.1993 in terms of para 143 Regulations for the Army (Vol. I) 1987 and was discharged from

service having completed 40 years of age on 31st July, 1996 as is evident from the record that by order dated 12.4.2000.

CONCLUSIONS

38. By judgment and order dated 5.3.2002 passed in Civil Misc. Writ Petition No. 42424 of 2000, the controversy raised in the present writ petition stands fully resolved. Special Appeal against the aforesaid Judgment and order was allowed on technical ground of non-joinder of necessary party, i.e., Union of India. In the instant petition, Union of India has been impleaded. Though I concur with the observations and findings recorded in the above writ petition, from the background, history of the litigations, the submissions made by the parties and the record, I am giving my reasons on the basis of the following salient features which are evident in the present case.

39. The claim regarding appointment of the petitioner as Religious Teacher was rejected and is not relevant for consideration for the purpose of reliefs claimed in the present case which depends upon whether the service of the petitioner was continuous and he had put in minimum qualifying service of 15 years for earning service pension under Regulation 132 of the Pension Regulations for the Army, 1961 (Part-I).

40. After recovering from the accident, the medical category of the petitioner was raised to BEE (P) and he was posted to the field which is 'AYE' category of posting where he served for a period of 3 years w.e.f. 20.3.1984 to 25.4.1987. He was then brought up before the medical board on 11.2.1987 for removal of K-Nail. The medical board deferred its opinion and was further held on 15.7.1987. In the meantime, respondent No. 3 had proposed discharge of the petitioner from service in lower category. Accordingly, the medical board on 15.7.1987 though did not find any sign of disease recommended discharge of the petitioner in medical category BEE (P). The petitioner was thereafter discharged on 1.9.1987 allegedly for being in lower medical category without service of any notice of show cause as required under Army Rule 13 (III) (V).

41. In writ petition No. 21283 of 1987, the Court vide judgment dated 28.1.1992 had noted that--

'However, his services can be retained as per provisions contained in Annexure C.A.-I to the Counter-Affidavit.'

It is clearly established from the aforesaid judgment and Annexure C.A. 1 to the counter-affidavit filed therein that the services of the petitioner could be retained. Annexure C.A-1 did not speak of enrolment and in Clause 2 of the Annexure C.A.-1 to the Counter Affidavit, a general principle has been enumerated for retention in service. According to Clause 2, ordinarily permanent low medical category personnel will be retained in service till completion of 15 years service in the case of J.C.O. and 10 years in the case of O.R. The Court by judgment dated 28.1.1992, in fact, observed that the application of the petitioner to get benefit of retention shall be decided in accordance with the relevant Rule referred to above.

42. The authorities re-enrolled the petitioner against their own Rules brought on record as Annexure C.A.-1 and in contravention of the letter and spirit of the judgment dated 28.1.1992 in Civil Misc. Writ Petition No. 21283 aforesaid to defeat the rightful claim of the petitioner.

43. In 'New International Dictionary' the word 'retention' is defined as under :

'(a) the act of retaining or state of being retained (b) continuance in use.... 4 a possessory lien...'

44. Thus retention implies continuity or holding lien or possession whereas re-enrolment conveys the sense of discontinuity. The respondents cannot take the advantage of their own act of violation of law and acting against the letters and spirit of judgment in W.P. No. 21283 of 1987.

45. The petitioner was a deserter or not would depend upon the intention i.e., whether he left the unit without information on his own without any compulsion or he was compelled to leave the unit to save his life from the torture and harassment meted out to him by the officials and their subordinates. It is evident from the telegram to the Director General of Army Headquarter wherein he had made repeated requests to allow him to join another local unit and surrender and the application of the petitioner dated 13.4.1995 to the Chief of Army Staff. His efforts to meet the Chief of Army Staff, to make available his address, contact numbers etc., at the first opportunity, to attend the Court proceedings alone give and receives copies of documents and be freely available any time to receive the appropriate orders for surrender before any local unit where his life would not be in danger are not the acts of a deserter. On the contrary, he was informed that his representation/ complaint is being looked into and he shall be informed about the orders.

46. No action was taken by the Military Authorities when the petitioner was appearing in various Court cases during the pendency of Civil Misc. Writ Petition No. 13885 of 1995, decided on 27.11.1996 and other review applications, Special Leave Petition decided on 1.2.1997 etc.

47. From the records, it is evident that the Army Authorities were fully aware that the petitioner is appearing in High Court in various cases and was not in hiding or running away, but residing in his house and had appeared to the authorities for surrender and attachment to other unit. He was, however, not got arrested by the army police, but only letters were sent to the Superintendent of Police to apprehend him so as to complete paper work. Why the Army Authorities did not take any action to arrest the petitioner It is best known to them. It cannot be forgotten that order was passed by the Army Authorities that the matter was being looked into but the decision was never communicated to the petitioner nor the decision taken on his application for surrender was ever brought on record. The procedure under Sections 105 and 106 of the Army Act was also not followed inasmuch as under the said section, it was mandatory upon the Army Authorities to find out through the Court of inquiry as to whether his absence is about due authority or for other sufficient cause. The Court of inquiry has shown a blind eye to the sufficient cause/circumstances disclosed by the petitioner in his letters and telegram that his life was in danger in his unit which had compelled and forced him to leave his unit. His request for attachment to other local unit where his life could be saved and where he could surrender was conveniently overlooked and was not taken into consideration. This is in complete violation of Section 106(2) of the Army Act. The petitioner has been discharged by creating mere paper work. The certificate that compliance of Rule 17 was not practicable is arbitrary. Even the Chief of Army Staff did not allow the petitioner to meet him. He was denied any hearing. It is not a case where the military authorities did not know that petitioner is running from pillar to post to surrender and bring the correct facts to light as there were only three months left in his retirement. The organisation ought to have given him opportunity to meet the Chief of Army Staff more when he was considered as a deserter according to them then closing the doors and deprived him of his retiral benefits, which is property of a Government servant. Can the head of a disciplined organisation act in such a manner to a member of its force? The conduct of the respondents gives an irresistible impression that someone in authority did not want the petitioner to be retained in service and desired to get rid of him without payment of pensionary benefits etc. as a matter of punishment for some reason lurking somewhere. This is also evident from the fact that the respondent No. 3 - Officer Incharge, Records (MT) initiated discharge proceedings of the petitioner without even waiting for holding of medical board on the ground that he was in BEE (P) category. The medical board was deliberately held with quite delay and the proposal to discharge the petitioner from service was made in the meantime ignoring the fact that he was discharging his duties in field and an official performing duties in field can be posted there only when he is in AYE category. The petitioner was transferred just 22 days prior to holding of the medical board away from the field to enable the authorities to discharge him from lower category BEE (P) in a pre-planned manner for which there is no explanation. This act of the authorities smacks of ulterior motives.

48. Section 20(3) of the Army Act can be resorted to only after a notice is served on a person under Rule 17 and if it is not practicable to give notice only then dismissal order can be passed. The petitioner was not served with any notice though his whereabouts were fully known and inspite of the fact that the petitioner had given application for surrender informing his address, telephone number etc.

49. The action of the army authorities as indicated in the previous paragraphs 39 to 49 of this judgment is out and out illegal, arbitrary, whimsical and cannot be sustained in law. The petitioner is appearing in person. He was in the army and has no trained legal acumen. Therefore, any defect in his prayer or the averments in the writ petition can be ignored and the Court can grant proper relief in exercise of power under Article 226 of the Constitution considering the facts and circumstances of the case and interest of justice. I am supported in this view by the judgments of the Apex Court in Food Corporation of India v. S.N. Nagarkar, AIR 2002 SC 808 : (2002) 2 SCC 475. The Hon'ble Supreme Court held that the High Court, in exercise of its jurisdiction under Article 226 can mould and grant relief having regard to the facts of the case and in the interest of justice.

50. Similarly, in Sri Justice S.K. Ray v. State of Orissa and Ors., AIR 2003 SC 924, it has been held that Lokpal whose tenure was got curtailed due to abolition of post claimed compensation for loss of future employment but relief of compensation for future employment was not claimed. On being found entitled only to compensation on account of loss of future employment, cannot be denied relief for want of such prayer and the High Court under Article 226 has power to grant and mould the relief.

51. For the reasons stated in the foregoing paragraphs, the impugned orders dated 2.5.1996 and 21.10.1999 it appears that the impugned orders passed by the authorities are out and out arbitrary, illegal and in violation of law. The writ petition succeeds and is allowed. The orders dated 2.5.1996 treating him to be a deserter and dated 21.10.1999 dismissing him from service, as well as order dated 12.4.2000 rejecting the prayer of the petitioner for pension are quashed. The word 'retention' which contains an element of continuity has to be given normal meaning in common parlance. The petitioner was enrolled in army in June, 1977. He was to be retained in service and was not to be enrolled. As such, his services put in by him from 1977 have to be given continuity. The respondents are directed to pay to the petitioner his entire retiral benefits as well as pension. The pension papers shall be finalised by the respondents within a period of two months from the date of production of a certified copy of this judgment and the amount of arrear of pension shall be paid to the petitioner together with interest as per law. The sum of Rs. 3,900/- deducted/adjusted from his dues shall also be paid with 10% interest. Cost of Rs. 5,000/- (Rupees Five Thousand) only on respondents to be paid by respondent No. 5 on their behalf to the petitioner within two months from today.