ANILTEJ SINGH DHALIWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioner prays that the Respondents/Army Authorities be directed to reinstate him into service; they be directed to release his arrears of pay and allowances and all other consequential benefits; that they be further directed to release "TA/DA and other allowances for requiring him to report back for duty". The response of the Respondents is that "there is no requirement of an order for reinstatement since the conviction by General Court Martial (for short 'GCM') and subsequent promulgations are wiped off by the Order of the Hon'ble Supreme Court and the Petitioner is still subject to the Army Act as per Section 2(2)." However subsequently it has been pleaded by the Respondent in paragraph 13 of the Counter Affidavit that "it is denied that as a result of the Apex Court's decision Petitioner is deemed to be in service and as such is required to be reinstated is contradictory. That the Petitioner is not deemed to be in service but as a result of setting aside of the conviction of cashiering and 8 months RI, there is no legal conviction against the Petitioner and he is still very much subject to the Army Act vide Sec. 2(2) as brought out clearly in para 7 above. That to this extent the very purpose of the Petitioner's writ petition as adverted is infructuous and for this sole reason the petition is not maintainable before this Hon'ble Court."

(2.) It appears that the Petitioner, while serving in the rank of Colonel in the Army, was served with a Charge-Sheet enumerating nine Charges allegedly committed by him during the year 1995. A GCM was held from 1.7.1995 to 10.11.1995 which found the Petitioner guilty of four charges viz. 2nd, 3rd, 8th and 9th; he was acquitted on the remaining five charges. The Petitioner was sentenced to eight months rigourous imprisonment together with cashiering. These findings and sentences were assailed by the Petitioner in the High Court of Sikkim in Crl.W.P. 1/1995 in which interim orders staying the proceedings were passed, and he was also granted bail. It is Petitioner's submission that he remained in service. It is not in contest that till that date the sentence had not been promulgated; as specifically required by the Army Act. By orders dated 8.9.1996, the Sikkim High Court set aside the impugned sentence passed by the GCM and set aside all subsequent steps and decisions taken by the Respondents. It is the Petitioner's submission that as a consequence of the High Court Judgment he did not remain under any disability with effect from this date, and this legal position is not disputed.

(3.) The Respondents challenged the decision of the High Court before the Hon'ble Supreme Court in SLP No.3191/1996. On 10.10.1996 the Hon'ble Supreme Court granted interim stay of the impugned Judgment. Thereupon, the Respondents promulgated the sentence passed by the GCM on 6.12.1996 thereby giving effect the sentence of cashiering. The SLP was finally disposed of on 12.12.1997, partly modifying the Judgment of the High Court of Sikkim. The Hon'ble Supreme Court reversed the decision on the 2nd, 3rd and 8th Charges, set aside the sentence awarded by the GCM and remitted the case back to the GCM for passing appropriate sentence on the afore-mentioned three Charges. It also appears that the Apex Court observed that prima facie the sentence awarded by the GCM appeared to be too severe.