DILIP KUMAR SINGH @ DALIP KR. SINGH SON OF LATE BADRI YADAV, RESIDENT OF VILLAGE NAGAHAR, P.S. BIKRAM, DISTRICT PATNA Vs. THE UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF DEFENCE, GOVT. OF INDIA, NEW DELHI AND OTHERS

JUDGEMENT

(1.) IN this writ application the petitioner has assailed the order of punishment of reduction in rank dated 23.10.1998/ 27.11.1998, as contained in Annexure 1, and its affirmance in the appellate order dated 17.5.2004, as contained in Annexure 2 to the writ application, whereby and whereunder the petitioner had been permanently reverted from the post of Naiyak to Sepoy( Sipahi) while serving Indian Army. The facts giving rise to this writ application lie in a very narrow compass. The petitioner was recruited in Indian Army as a Sepoy on 12.12.1979 (Army No. 4259332K) and was subsequently promoted from the post of Sepoy to the post of Nayak in the month of August, 1991. It is the case of the petitioner that while working as a Nayak he was superseded in course of next promotion on the post of Havildar while several others including one Satyendra Kumar Singh, who was allegedly junior to the petitioner in the rank of Nayak were promoted. It is said that the representation filed by the petitioner on 7.11.1995 to the Lieutenant Colonel, the Commanding Officer of 16 Bihar Regiment, did not evoke any response but ultimately by a communication dated 12.1.1996 the Brigadier, Bihar Regiment, Danapur Cantonment had informed him that he had not been promoted because he did not meet the requisite ACR criteria for promotion on the post of Havildar. It is also said that on receipt of this communication dated 12.1.1996 the petitioner had sought information as with regard to nature of adverse entry in his ACR so that he could either move the higher authority or to a Court of Law but according to the petitioner, he was given no reply and thus, out of disgust he had filed his application for his voluntary retirement from service on 28.11.1997 which also was allowed by the competent authorities of the Indian Army with effect from 31.8.1998 and in pursuance of which the petitioner had submitted his pension papers.

(2.) ACCORDING to the petitioner, while he was continuing in service in preparation to voluntary retirement, he had proceeded on 20 days Casual Leave for the period 16.3.1998 to 4.4.1998 during which he had gone to his native village. It is the case of the petitioner that on 1.4.1998 he fell ill with acute pain in his abdomen and vomiting and when he had gone to Danapur Military Hospital on 2.4.1998 for his treatment he was refused such treatment on the ground that his leave was going to expire on 4.4.1998. The petitioner thereafter is said to have consulted a local doctor, Dr. Ram Naresh Yadav, posted at Patna Medical College and Hospital and remained under his treatment from 2.4.1998 to 26.6.1998 and in this period he is said to have sent information both by telegram to his unit stationed at Assam on 4.4.1998 as also an application on 5.4.1998 under Certificate of Posting seeking extension of leave. In the writ application the petitioner has stated that when he did not receive any response either to his telegram dated 4.4.1998 or to the application sent by under Certificate of Posting on 5.4.1998 he had also sent his application to the Commanding Officer of Bihar Regiment on 1.5.1998, 5.5.1998 and 10.6.1998, all under Certificate of Posting with a prayer for grant of annual leave of 30 days and C.L. of 20 days of year 1999 -2000 as also for an advance of Rs. 10,000/ - for his treatment. The petitioner claims that he had also made a prayer for recall of his order of voluntary retirement and that he should be attached with Bihar Regimental Centre at Danapur during the period of his illness instead of being asked to report to his Unit stationed in the State of Assam.

(3.) LEARNED counsel for the petitioner while assailing the two impugned orders has submitted that the order of punishment passed against the petitioner cannot be sustained, inasmuch as the petitioner was not afforded opportunity to cross -examine any of the three witnesses, namely, D.N.Singh, Brajesh Kumar and S.N. Thakur. He has further submitted that once the voluntary retirement of the petitioner had already been accepted which was to come into force with effect from 31.8.1998, the authorities had no jurisdiction to either continue with the court of enquiry or pass the impugned order of punishment. He has further assailed the proceedings of the Summary Court Martial Proceeding on the ground that the petitioner had never admitted the charge.