NAIB SUBEDAR NIRANJAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner while working as Naib Subedar took annual leave in July, 1983 in order to appear in Matriculation Examination of U.P.Board of Secondary Education at Jhansi Centre. The said examination commenced from 12th July, 1983. According to the petitioner he secured second division in the Matriculation examination held in July, 1983. He produced his certificate and the marksheet to the respondent. His unit published the order for the qualification attained by the petitioner. The order attaining the qualification was published on 16th March, 1985. However, on 27th April, 1987 the Record Office wrote to the petitioner's unit to cancel the Part-II order because according to him on verification from the U.P.Board of Secondary Education it was found that the certificate produced by the petitioner was bogus. Petitioner brought to the notice of the Record Officer that wrong roll number had been verified by him. The petitioner's roll number was 47321 whereas the Department made the verification in respect of Roll No. 46321. Instead of re-verifying, the Record Officer ordered initiation of disciplinary proceedings against the petitioner. Accordingly in May, 1987 Court of Enquiry was conducted on the alleged mis-conduct. On 22nd June, 1988 on the certificate being got re-verified from the U.P. Board of Secondary Education it was confirmed that the petitioner's name existed in the record against Roll No. 47321 as having passed the Matriculation Examination in second division in 1983. The re-verification of the certificate was got done by the Artillery Centre, Hyderabad. Thereafter no action was taken against the petitioner but suddenly on 22nd January, 1990 after a lapse of three years, show cause notice was issued to the petitioner as to why his service should not be terminated under Section 20(1) of the Army Act read with Army Rule 17 administratively as in the opinion of the Chief of the Army Staff petitioner's trial by Court Martial for the said offence was impracticable having become time barred and that the petitioner's further retention in service was undesirable. Petitioner refuted the averments made in the show cause notice vide his reply dated 28th February, 1990. Respondent No. 3 without application of mind terminated the service of the petitioner under Section 20(1) of the Army Act read with Army Rule 17 for the alleged offence committed under Section 57(e) of the Army Act.

(2.) Aggrieved by this order, the present petition has been filed primarily on the ground that once the Court Martial having become time barred the respondent had no jurisdiction to terminate the service of the petitioner administratively. According to Mr.M.G.Kapur, counsel for the petitioner once the period of limitation of Court Martial had expired, the respondent could not resort to the order of termination administratively. In this regard he has placed reliance on the decision of this Court in the case of Lt.Col. H.C.Dhingra Vs. Union of India & Anr., CW.No. 639/88 reported in 1988(2) Delhi Lawyer (DB) page 109 as well as in the case of Lt.Col.Satish Puri Vs. Union of India & Ors., CW.No. 841/90 decided on 7th May, 1990. Mr.Kapur brought to the notice of this Court that respondent / Union of India filed an Special Leave Petition against the order of Division Bench in the case of Lt.Col.H.C.Dhingra. The said Special Leave Petition was dismissed by the Supreme Court. Thus, the order of the Division Bench in Lt.Col.H.C.Dhingra governs the facts in this case. He has further placed reliance on the decision of the Supreme Court in the case of Major Radha Krishan Vs. Union of India & Ors., JT 1996(3) SC page 650. In this case the Apex Court approves the decision in the case of Lt.Col.H.C.Dhingra. In that case the Supreme Court was ceased of the interpretation of Sections 19 and 122 read with Rule 14 of the Army Rules, 1954. While interpreting these sections and the rules, the Apex Court observed that "termination of service of the petitioner was on account of misconduct. The trial by the Court Martial had become time barred. Respondent resorted to Rule 14. The Court opined that once the period of limitation for holding the Court Martial was over, authorities could not take action under Rule 14(2) of the Army Rules. It was further observed that so long as an Officer can be legally tried by a Court Martial, the concerned authorities may on the ground that such a trial is not impracticable or inexpedient invoke Rule 14(2) but once the period of limitation of such a trial is over the authorities cannot take action under Rule 14(2) or under Sections 19 and 122 of the Army Act. The Supreme Court observed as under:-

(3.) In the case in hand by the impugned order dated 22nd January, 1990 it was intimated to the petitioner in para No. 2 of the show cause notice as under:-