MAJOR BALWANT SINGH Vs. THE UNION OF INDIA

JUDGEMENT

(1.) Can a person who has already retired on attaining the age of superannuation be dismissed or removed under Sec. 19 of the Army Act, 1950 ? The petitioner who was a Major in the Army says that after his superannuation, the relationship of employer and employee does not subsist. He cannot thus be dismissed or removed. The respondents says that the proceedings were pending against the petitioner. Final order could not be passed on account of the interim orders passed by this Court. As a result, it is claimed that the petitioner has not "duly retired". Consequently, it is urged on behalf of the respondents that the proceedings should be allowed to continue.

(2.) A brief resume of facts would suffice. The petitioner was posted as Garrison Engineer, Jaipur on May 4, 1979. He held this charge till Dec. 11, 1981. During this period, certain defects were noticed in one of the work executed under his supervision. Vide orders, dated Dec. 2, 1980 he was administered a warning for the alleged negligence. Warning was also given to him verbally by Brig. N.S. Surrey. Thereafter, in pursuance to the summary of evidence etc. and the fact that the limitation for disciplinary action as postulated under Sec. 122 of the Army Act, 1950 had elapsed, departmental action was ordered to be taken against the petitioner vide orders dated Jan. 22, 1987. A copy of this order is at Annexure P.13 with the writ petition. The petitioner filed the writ petition challenging this action on various grounds, namely, that no proceedings could be maintained against the petitioner after the lapse of there years; the petitioner having been administered a warning the contemplated action suffered from the vice of double jeopardy; that the charges against the petitioner had already been dismissed by the competent authority; and that no action having been taken against the persons junior as well as senior to the petitioner, singling him out for administrative action was violative of Articles 14 and 16 of the Constitution.

(3.) The writ petition was admitted on Nov. 17, 1987. Vide letter dated Dec. 10, 1987 the petitioner was served with a copy of the show cause notice dated Aug. 13, 1987 calling upon him to show cause as to why his services be not terminated under Sec. 19 of the Army Act, 19550 read with Rule 14. The petitioner moved Civil Misc. Petition No. 77 of 1988. On Jan. 6, 1988 passing of the final order was stayed. Vide orders dated April 20, 1988 the interim order dated Jan. 6, 1988 was made absolute. C.M. Petition No. 16372 of 1988 filed on behalf of the respondents for vacation of the stay order was declined by this Court on Jan. 9, 1989. Consequently, no further action in pursuance to the order at Annexure P.13 and the show cause notice issued vide letter dated Dec. 10, 1987 was taken against the petitioner. Mr. R.S. Radhawa, learned counsel states that the petitioner attained the age of superannuation and retired from the army on Dec. 31, 1990. He consequently submits that besides that grounds raised by him in the writ petition, as also at the hearing of the case, no action in pursuance to the orders at Annexure P.13 and P.14 can be taken against the petitioner at this stage.