DILIP KUMAR SINGH Vs. UNION OF INDIA

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) Patna High Court CWJC No.13939 of 2004 dt.30-04-2012 2 while serving Indian Army.

(2.) 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 It is the case of the petitioner that while working as a Nayak he was superseded in course of next promotion on the post of Havildar while several others including one Satyendra Kumar Singh, who was allegedly junior to the petitioner in the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 Patna High Court CWJC No.13939 of 2004 dt.30-04-2012 3 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. 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 Patna High Court CWJC No.13939 of 2004 dt.30-04-2012 4 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.) The petitioner has also stated in the writ petition that he had subsequently reported on duty on 30.6.1998 but the authorities did not accept his joining and had subjected him to a court of enquiry proceedings on the charge of over staying on leave without sufficient cause for the period 4.4.1998 to 30.6.1998. The petitioner has admitted that in such course of enquiry proceedings held on 11.9.1998 the three witnesses, namely, D.N.Singh, Brajesh Kumar and S.N.Thakur were examined and eight documents were also exhibited and after the court of enquiry had held him guilty a summary court martial proceeding was also held on 23.10.1998 wherein on the basis of materials on record and on account of his pleading guilty to the charge he was subjected to the order of punishment of being reduced in rank and his appeal against the said order was also rejected by an order dated 14.5.2004. Patna High Court CWJC No.13939 of 2004 dt.30-04-2012 5 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. When this case was heard on 22.4.2011 this Court had felt the necessity of looking into the records of Summary Court Martial proceeding and as such, a direction was given to the counsel for the respondents to produce the records of the Court of Enquiry and Summary Court Martial Proceeding. It is interesting to note here that after this order was passed and the records were produced, the conducting counsel on behalf of the petitioner on the next day had sought to withdraw his Vakalatnama taking a plea that the petitioner no longer wanted him (his counsel) to continue with the case and as such, the case should be adjourned for a period Patna High Court CWJC No.13939 of 2004 dt.30-04-2012 6 of four weeks to enable the petitioner to engage a new counsel. This Court in the interest of justice had allowed such prayer and subsequently when the new counsel had appeared, he again had taken adjournment on 21.6.2011 and 30.6.2011 to file rejoinder to the counter affidavit but ultimately he had submitted that he would proceed to make his submission even without filing of the counter affidavit. The case thereafter was heard on 14.7.2011 and in course of making his submissions when he could not find the Medical Certificate of Dr. Ram Naresh Yadav, P.M.C.H which according to him was Exhibit-8 to the Summary of Evidence recorded in the Court of Enquiry held against the petitioner, he had undertaken to produce the aforesaid medical certificate of Dr. Ram Naresh Yadav, the consulting doctor of the petitioner at P.M.C.H. Thus the judgment was reserved on 14.07.2011 and the medical certificate was later on actually sent by the petitioner himself by registered post in November, 2011 which on its receipt in December, 2011 had been kept on record of this case and also taken into consideration while passing this order. The main plea that the petitioner was not allowed to cross-examine the three witnesses stands totally belied from the perusal of the records of enquiry proceedings. D.N.Singh, P.W.1, was examined on 11.9.1998 and he had stated that the petitioner in Patna High Court CWJC No.13939 of 2004 dt.30-04-2012 7 the month of March, 1998 was allowed to proceed on C.L. of 20 days with effect from 16.3.1998 to 4.4.1998 but he did not rejoin the duty after expiry of his leave on 4.4.1998, whereafter P.W.1 had reported as with regard to over stay of the petitioner to his Company Commander Major M.R.Rana. He had further stated that on 5th April he had received a telegram from the petitioner for extension of leave and this matter was also brought to the notice of the Company Commander who had directed that reply telegram should be sent to the petitioner asking him to rejoin the duty immediately. He had further stated that a telegram was sent to the petitioner on 8.4.1998 informing the petitioner with regard to refusal of his leave. The petitioner was offered cross-examination of the said witness but he had declined to cross-examine P.W.1. Similarly, P.W.2, Brajesh Kumar, was also examined on the same day and he apart from the facts stated by P.W.1 had also stated that when the petitioner despite being informed of refusal of extension of his leave by return telegram dated 8.4.1998 and confirmatory letter of the said telegram dated 13.4.1998 did not report for duty, a letter was sent to the Superintendent of Police, Patna on 25.4.1998 for arresting the petitioner and producing him before the Army Authorities and when the petitioner did not report the duty nor was produced by the Patna High Court CWJC No.13939 of 2004 dt.30-04-2012 8 Superintendent of Police, Patna, he was declared deserter on 16.6.1998 with effect from 5.4.1998. P.W.2 was also offered for his being cross-examined by the petitioner but the petitioner had declined to cross-examine him as well.