V K PANDEY Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against the order passed by the Division Bench of Allahabad High Court whereby the Division Bench of Allahabad by its order dated 22.9.2003 has dismissed the writ petition filed by the appellant.

(2.) The appellant was an Officer of the Indian Army. He challenged his order of punishment of reprimand passed on 17.3.1992 by the GOC UP Area " An Omission Prejudicial to Good Order and Military Discipline" allegedly committed by the appellant when he was Garrison Engineer at Air Force Station, Agra between November, 1986 and October, 1989. He also prayed that the order dated 16.11.1993, Annexure-4 to the writ petition, rejecting his statutory complaint against the reprimand should also be quashed. He also prayed for quashing of the order passed on his statutory complaint against his non-promotion dated 1.6.1994, Annexure 6 to the writ petition. He further sought for a writ of mandamus directing the respondents to promote him to the post of Lt. Col. (Selection Grade), Colonel and Brigadier with retrospective effect from the date from which his juniors were promoted. The appellant was 1973 batch Corps of Engineers Officer commissioned on the Indian Army on 17.6.1973. At the time of filing of the writ petition before the High Court he was a Time Scale Lt. Colonel with effect from 1994, which is considered as Major for all purposes. A selection Board for 1973 batch officers of the Corps of Engineers was held in May, 1992 for promotion to the post of Lt.Colonel (Selection Grade) and the result was declared on 4.6.1992. The appellant was found suitable for promotion by order dated 20.7.1992. The appellant was not promoted to the rank of Lt.Col.(Selection Grade) when his turn came for promotion whereas persons junior to him were promoted. The appellant was put through a Special Review Board in February, 1993 on account of the alleged punishment of reprimand awarded in March, 1992 by the GOC, UP Area. The appellant filed a representation against the order of reprimand by way of statutory complaint under Section 27 of the Army Act to the Government of India and the same was rejected on 16.11.1993. He also made a statutory complaint on 23.12.1993 against his non-promotion to the post of Lt.Col. (Selection Grade) and that was also rejected. The appellant filed two writ petitions before the Punjab and Hryana High Court but they were kept pending for 8 years and ultimately on 28.4.2003 those writ petitions were rejected by the Punjab and Haryana High Court on the ground that Punjab and Haryana High Court has no jurisdiction to entertain the writ petitions as the cause of action has arisen to the appellant within the jurisdiction of Allahabad High Court when he was posted at Agra in the State of U.P. Therefore, the appellant filed the present writ petition before the Allahabad High Court. The charge against the appellant was that he while posted at Kheria, during April/May, 1989, as the Garrison Engineer and responsible for efficient execution of work relating to contract CA No.GE/CHR/02 of 88-89 for provision of hardstanding at Kheria, improperly omitted to ensure that the said work had been efficiently executed before it was taken over by the MES on or about 5.5.1989, resulting in subsequent surfacing of defects in the hardstanding. Prior to that a Defect Board constituted by the Chief Engineer, Bareilly Zone examined the defect and found that 40 to 50 per cent of the seal coat had come out and the pavement had undulation. It showed sign of unevenness and level differences. The job was delegated for planning and execution to Garrison Engineer, Kheria and the Board opined that poor workmanship was due to improper supervision by various executives. On the basis of the above finding, an enquiry was conducted, the appellant was given opportunity in the enquiry and ultimately the appellant was found guilty in the enquiry and awarded punishment of reprimand. The said order of reprimand was communicated to the appellant against which he filed objection before the higher authorities but the same was rejected. Meanwhile, the case of the appellant was also considered for promotion to the post of Lt. Colonel also but on account of this order of reprimand passed against him, his case was again reviewed and in the review he was found not suitable for appointment and accordingly he was not promoted. On the basis of these grievances, the present writ petition was filed by the appellant. The Division Bench of the Allahabad High Court after considering the matter dismissed the writ petition and held that the Court cannot sit as a court of appeal to reassess the evidence and the findings of fact recorded by the Army authorities. Hence the present appeal.

(3.) Learned counsel for the appellant submitted that the punishment of reprimand is based on no evidence and perverse. He also submitted that the enquiry was conducted in an unfair manner and in breach of principles of natural justice. Secondly, he submitted that even if the order of reprimand is valid, the reasoning given by the Selection Board on the performance of the appellant is also not correct and constitution of Review Board was unjustified. Learned counsel for the appellant lastly submitted that the punishment of reprimand cannot be permanent so as to debar the appellant for promotion for all time to come.