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LAKSHMI CHAND versus UNION OF INDIA & OTHERS

High Court of Judicature at Allahabad

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Lakshmi Chand v. Union Of India & Others - WRIT - A No. 30548 of 2000 [2007] RD-AH 3807 (6 March 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED ON  22.03.2007

DELIVERED ON 06.04.2007

Civil Misc. Writ Petition   No.     30548  of    2000

Lakshmi Chand ..................................................    Petitioner

Versus

Union of India & others  ...............................          Respondents

....................................

Hon'ble Ashok Bhushan, J.

Heard Colonel Ashok Kumar, learned counsel  for the petitioner and and Sri Ajeet Kumar Singh,  learned counsel appearing for the respondents.

The petitioner was enrolled in Garhwal Rifles on 25.12.1962.  He was placed under low medical category  with effect from  9.2.1972.  A criminal case of murder  and abduction  was registered  against the petitioner  by civil police.  Petitioner  was handed over to civil police, Bareilly on 24.11.1973 by the army authorities.  The petitioner was convicted by the Sessions Court vide judgement dated 16.6.1975 with life imprisonment  and seven years' rigorous imprisonment  under Sections 302 and 363 I.P.C. respectively.    On 16th June, 1975 petitioner was discharged by the army authorities.  After acquittal from the High Court petitioner submitted an application on 6.5.1980 for his reinstatement in service with full benefits.  The case of reinstatement was examined by the department  and not accepted  due to his 'indifferent character' and having undergone  civil imprisonment for more than six months.  The decision was communicated to the petitioner vide letter dated 24.10.1981.   The order dated 15.8.1980 was published amending the word "dismissal " as earlier published in Part- II dated 9.7.1976 to read as "discharged" .  The Government of India issued an order dated 6.4.1998 for holding post release Medical Board in respect of the petitioner to assess  the  nature and the percentage of disability at the time of discharge from service as well as present percentage of  disability  for considering the question of grant of disability pension if otherwise admissible.  Petitioner was informed by the letter dated 26.5.1998 for presenting himself for the post release Medical Board. The  post release Medical Board was held  and the opinion was given by the Medical Board dated 10.7.1998.  The petitioner was informed that his application for grant of disability pension is under consideration before the C.D.A. Pension.  By   an order dated 29.1.2000 issued by the In-charge  Record Office, the petitioner was informed that his claim for disability pension has been rejected by the C. D. A. (Pension), Allahabad.  Another letter dated 18.3.2000 was issued  to the petitioner informing that the petitioner is not entitled for grant of disability pension in accordance with the regulation 173 of Pension Regulation Part  I (Army) 1961.   This writ petition  was filed by the petitioner on 17.7.2000 praying for following reliefs :-

"(A)     To issue writ, order or direction in the nature of certiorari quashing the impugned order dated 29.1.2000 and 18.3.2000 passed by respondent no. 3.

(B)           To issue writ, order or direction in the nature of mandamus directing the respondents to grant the disability pension to the petitioner from the date of discharge of service 16.6.1976 and continue to pay the same regularly in future as and when it falls due.

        (C )            To issue writ, order or direction in the nature  which this Hon'ble Court may deem fit and proper in the circumstances of the case."

During pendency of the writ petition  petitioner moved an amendment application  on 6.9.2005 praying for adding a relief for quashing the dismissal order  dated 15.6.1975 and its conversion into discharge dated 30.7.1981. Another application No. 218360 of 2005 was filed by the petitioner on 11.11.2005 praying for modification of prayer clause.  By order of this Court dated 14.9.2006 the petitioner's application for amendment/ modification in the prayer clause was allowed by adding the following reliefs:-

"To issue a writ of certiorari and quashing the impugned orders dated 15 June, 1975, 30 July 1981 (published in Ante dated DO Part II No. 138 of  15 August 1980) and orders dated 20 August, 1975 and 05 October, 1981 with all the consequential benefits to the petitioner including grant of salary/perks up to 31 December, 1979 and Pensionary / disability pension  thereafter including award of Penal rate of interest + Exemplary compensation  relying upon 2003 (3) U.P. E.S.C. 2002 1660 (DB  Delhi )."    

Respondents have filed counter affidavit and two supplementary counter affidavits which have been replied by the petitioner by filing the rejoinder affidavits.

In support of the writ petition learned counsel for the petitioner contended that the petitioner was entitled for disability pension and the decision of the respondents  refusing to grant disability pension  was erroneous and liable to be set aside.   He further contended that the order dated 16.6.1975 was a dismissal order  which has been subsequently erroneously  converted  as discharge  in the year 1981 by order dated 30.7.1981.   He contends that the petitioner cannot be discharged  retrospectively  and the discharge order  as published in Part II dated 15.8.1980 is contrary to Rule 18 (4).   He submits  that no charge sheet was served before passing the dismissal order.   No release Medical Board  was held at the time of his dismissal/ discharge dated 16.6.1975.  Petitioner was a disabled person and was entitled to disability pension under Regulation 173.  The discharge order was illegal in view of  Army Order No. 149/172. Learned counsel for the petitioner in support of his submissions placed reliance on the judgements namely 2001 (1) U.P.L.B.E.C. 626:  Mahaveer Singh Rawat Vs. Union of India and others;  1989 (4) S.C.C. 582;  S. S. Rathore   Versus  State of Madhya Pradesh; and A.I.R. 1966 S.C.1313: State of Punjab Versus Amar Singh Harika.

Sri Ajeet Kumar Singh, learned counsel for the respondents refuting the contentions of the counsel for the petitioner, contended that the petitioner was discharged, he being under imprisonment  for more than six months.  He submits that the petitioner was not dismissed and by mistake order was published as 'dismissal' with regard to petitioner  which mistake was subsequently noticed and was corrected by another order No. 138  published in Part II dated 15.8.1980 by which it was ordered that the dismissal be read as 'discharge'.  He submits that in the discharge  certificate which the petitioner  himself has filed  as Annexure-1 to the writ petition, the column of 'discharge' was filled up and the column  of dismissal was left blank although reason given was that the "service no longer required on conviction of civil court". He submits that the petitioner is not entitled for disability pension since he was not invalidated on account of he being in low medical category.  He submits that the claim of disability pension is not covered under Regulation 173.  Sri Singh further contended that the petitioner  did not challenge the discharge order for more than 25 years and his challenge need not be considered in this writ petition.  He submits that discharge was ordered on account of he being under imprisonment for more than six months and not on account of his physical condition and  Army order No. 149/72 has been referred  which empowers the Army authorities to discharge a man who has recently been in jail or at any  time in jail for more than six months.  

I have considered the submissions of counsel for the parties and perused the record.

The first issue raised by the counsel for the petitioner is petitioner's entitlement of disability pension within the meaning of regulation 173.

Regulation 173 is quoted as below :-

    "173.   Unless otherwise  specifically provided, a disability pension may be granted to an individual who is invalided  from service on account of a disability which is attributable to or aggravated by military service and is assessed at 20 per cent or over.  

        The question whether  a disability is attributable to or aggravated by military service shall be determined under the rules in appendix II.    

Regulation  173 -A

Insert the following as a new Regulation-  " Individuals discharged on account their being  permanently in low medical category.

173-A-  Individuals who are placed  in a lower medical category (other than 'E' ) permanently and who are discharged because no alternative employment suitable to their low medical category could be provided, shall be deemed to have been invalided from service for the purpose of the entitlement rules laid down in Appendix II to these Regulations.

Note:-  The above provision shall also apply to individuals who are placed in low medical category while on extended service and are discharged on that account  before the completion of the period of their extension.

Regulation 173-B

The following is inserted as a new Regulation -

173-B -  A reservist who placed, permanently in a lower medical category (other than 'E') and is discharged from the reserve on that account will be deemed to have been invalided out of service for the purpose of the entitlement rules laid down in Appendix II to these Regulations.

An individual who is found to be ineligible for the grant  of disability pension will be paid service gratuity under Regulations 158."

A perusal of above regulation  makes it clear that disability pension  may be granted to an individual  who is invalidated  from service on account of disability which is attributable to or aggravated  by military service  and is assessed 20%  or more.  The petitioner was discharged from service on 16.6.1975, copy of the discharge certificate has been filed by the petitioner himself as Annexure-1 to the writ petition.  Column  4 of the said certificate reads as under :-

" 4.  Discharged by order of Offg. General Officer Commanding, Bengal -A a ............

        In consequence of services no longer required on conviction of civil court. "

Thus the aforesaid discharge certificate filed by the petitioner itself indicates  that the petitioner was not  invalidated on account of any  disability.  The respondents have  taken stand  that earlier  it was mentioned as dismissal which was subsequently corrected  by  order which was published in Part II of 158.80 to read 'dismissal' as 'discharge'.  Thus the petitioner was not discharged on account of any invalidity.  The reason for his discharge as mentioned in the certificate   filed by the petitioner himself, is  that the service is no longer required "on conviction of the civil court ".   Thus on the terms of  regulation 173 the petitioner is not clearly entitled for grant of any disability pension.

In support  of his claim of disability pension learned counsel for the petitioner has placed reliance on the judgement of this Court in Mahaveer Singh Rawat's case  (supra) .  In Rawat's case,  on account  of a disease known as Neurosis Anxiety his medical Category was drawn graded from 'A" to 'E' thereby rendering  him unfit to continue in active service.  Medical Board had found the disability constitutional  and not connected  with service.  This Court after considering  the material on record came to conclusion (para 9 of the judgement ) that the petitioner had suffered  from the illness of Neurosis Anxiety -300 by reason of the military service.  In view of above the Court upheld the claim of disability pension.  The Rawat's case  has no application in the present case since the petitioner in this case was not invalidated due to any disease or on medial ground.

 

It is true that the release Medical Board  was held by order of the Government of India dated 6.4.1998 which took place.  The petitioner was directed to appear before the  Release Medical Board  on 10.7.1998. The order permitting to hold Release Medical Board  has been filed  as Annexure-2 to the writ petition dated 6.4.1998. The relevant portion of the said order reads  as follows :-

" I am directed to convey the sanction of the President to the holding of post release medical board in respect of No.4042370 Ex Rfn (Mess Waiter) Lakhmi Chand of Records The Garhwal Rifles who was enrolled in the Army on25 Dec. 62 and to assess the nature, cause and percentage of his disability at the time of his discharge from service as well as the grant a of disability pension, if otherwise admissible and to complete medical documents.

2. This issues with the concurrence of Finance Division of this Ministry vide their U.P. No. 484/DFA(Pen/Med) dated 23 Mar. 98."

A perusal of the  said order indicates that the release Medical Board was held for determining the  question  for grant of disability pension ' if otherwise admissible'.

The papers of the release Medical Board were forwarded tot he pension sanctioning authority and the pension sanctioning authority  has taken the view  that under regulation 173 petitioner is not eligible for grant of disability pension.  Petitioner has failed to show that the petitioner fulfils the conditions for grant of disability pension  under regulation 173 hence  the order of the respondents dated  29.1.2000 and 18.3.2000 refusing disability pension cannot be interfered with by this Court in exercise of jurisdiction Under Article 226 of the Constitution.

The next submission of the counsel for the petitioner is towards challenge of discharge order dated 16.6.1975.  After acquittal of the petitioner from the criminal case on 9.3.1980 petitioner himself field an application dated 6.5.1980 for his reinstatement in service which facts  have been clearly mentioned in paragraph  3 (g) of the counter affidavit dated 27.8.2000.  The prayer of the petitioner for reinstatement  was refused  on the ground  that his character was found 'indifferent'  and he had undergone civil imprisonment for more than six months.  It is relevant to note the reply  of the said paragraph 3 (g) of the counter affidavit.  The reply of paragraph 3(g) of the counter affidavit  has been given in paragraph 3 (g) of the rejoinder affidavit filed by the petitioner which is as follows:-

"3(g).   Paragraph 3(g)   That the averment admits that the petitioner submitted an application  on 6 May, 1980 for his reinstatement in service with full benefits, which was the right of the petitioner , because in terms of the judgements of the Hon'ble Courts in India including Hon'ble Apex Court  of India, a person on his acquittal was entitled to all the consequential benefits:

              IN THE ISNTANT CASE

(i) The actions of the respondents were totally illegal  because the DISMISSAL  itself under the provisiosn of Rule 13(3) Item III (v) of Army Rules, 1954, was against the Law on the Statute in the Act No. 46 of 1950 passed by the Indian Parliament/Rules framed by the Government of India under   the provisions of Section 191 of the Army Act 1950/ Regulations of 1987/ Army Orders on the subject, as such the petitioner  was entitled to all the pensionery  benefits, including the service benefit till he had completed 17 years of colour service.  

FOLLOWED BY

(ii) Misdemeanour  of the respondents  in showing the petitioner's character  as "Indifferent" was against the provisions of para 170 of the Defence Services Regulations ( Regulations for Army, 1987)  and  the same even after the 'Acquittal' from the Court should have been  graded as 'Exemplary'. "

The petitioner has not denied having filed the application for reinstatement  on  6.5.1980 with full benefits.   The above facts clearly mean  that the petitioner was  well aware  of the discharge and after acquittal from criminal court he moved an application for reinstatement which was refused.  The petitioner has not challenged  his discharge order or the order of the respondents  refusing to reinstate the petitioner for about  twenty years.  The discharge was  made in June, 1975 and the writ petition  was filed by the petitioner in July, 2000.  As noted above even when the  writ petition  was filed only prayer made by the petitioner was  to quash the orders dated 29.1.2000 and  18.3.2000 refusing to grant disability pension.  In paragraph 1 of the writ petition   the petitioner has clearly referred the discharge order dated 16.6.1975.  The petitioner was well aware of the discharge order and  had not challenged the same.  Even if the petitioner's case is to be taken that the initial order was of dismissal even though  the petitioner has not challenged the same  for long twenty five years.  The the order refusing to reinstate  the petitioner,  which was communicated to the petitioner by letter dated 24.10.1981,  was also not challenged.  For the first time in the year 2005 the petitioner filed an application for challenging the  order passed on 16.6.1975 and its conversion into discharge dated 30th July, 1981 i.e.  after thirty years  and 24 years  respectively.  In the facts and circumstances of the present case the petitioner's challenge to the aforesaid orders  after such a long lapse of time, cannot be considered.  The  writ jurisdiction cannot be exercised  for  entertaining such stale claim  at such stage which has been raised  after  quarter century.  Even though the petitioner was permitted to amend the prayer by this Court  by order dated 14.9.2006, the permission to amend the prayer is not akin to examination of merits of the prayer.  Apex Court in 1977 S.C. 1979 Naik Subedar Lakshman Das Versus Union of India and others  upheld  the order of the High Court dismissing the writ petition  challenging an order of discharge passed against an army personnel  after four years.  Following observations were made by the apex Court :-

"  It may perhaps be that the appellant was misdirected in regard to the remedies which he should have adopted, but what stares  one in the face is that it was for the first time in September, 1970 that the appellant invoked the extra ordinary powers of the High Court under Article 226 of the Constitution for challenging the legality of an order dated  December 21, 1966.  The writ petition  was filed after a gross delay for which there is no satisfactory explanation and, therefore,  the High Court was justified in dismissing it summarily."  

The Supreme Court judgement relied by learned counsel for the petitioner in S.S. Ratore's Case  (supra)  does not help the petitioner in this case. In above case the Supreme Court laid down that the limitation for filing a suit for challenging the dismissal order, shall begin not from the date of order passed by the dismissing authority but from the date  when statutory appeal or revision has been dismissed. Following was laid down in paragraph 20 :-  

"20.  We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a  statutory  remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal  or making of the representation  shall be taken to be the date when cause of action  shall be taken to have first arisen.  We, however,  make it clear that this principle may not be applicable  when the remedy availed of has not been provided by law.  Repeated unsuccessful representations not provided by law are not governed by this principle."

Present is not a case where it is claimed that any statutory  appeal or revision was filed against the discharge order dated 16.6.1975 or it  was decided.  At best cause of action arose to the petitioner  when his application dated 6.5.1980 praying for reinstatement after acquittal was turned down in the year 1981 which was communicated vide letter dated 24.10.1981.  As noted above the present writ petition  was filed in the year 2000 and amendment application seeking challenge to  discharge order  dated 16.6.1975 and order dated 15.8.1980 by which publication  of earlier order was sought to be corrected was filed on 6.9.2005.

In view of above it is held that the relief of quashing the order dated 16.6.1975 and 15.8.1980 are highly barred by latches and cannot be allowed on this ground alone.

One more facts need to be noted. The petitioner was convicted vide judgement dated 16.6.1975 of Sessions Judge Bareilly of the  offence under Sections 302 and 363 I.P.C.   This Court vide judgement  dated 19.3.1980 in Criminal Appeal No. 1726 of 1975 allowed the appeal and acquitted him.  After acquittal  petitioner made an application dated 6.5.1980 to the Army authorities along with copy of judgement for reinstatement which was turned down  by the Army authorities in the year 1981.  The petitioner did not challenge the action of army authorities  refusing his reinstatement for 24 years.  Even when  this writ petition  was filed in the year 2000, he did not either challenge his discharge dated 16.6.1975 or his non-reinstatement after acquittal.  The factum of keeping silence for more than two decades speaks for itself and cannot be ignored by this Court  while exercising its extra ordinary jurisdiction Under Article 226 of the Constitution.

The judgement of the Supreme Court in State of Punjab  Versus  Amar Singh Harika's case (supra) also does not help the petitioner in this case.  In Harika's case  the Supreme Court held that mere passing of an order of dismissal is not effective  unless  it is published and communicated to the officer concerned.  Following was laid down in paragraph 11:-

"11. .....................................   We are, therefore,  reluctant to hold that an order of  dismissal passed by an appropriate authority and kept on the file without communicating  it to the officer concerned or otherwise publishing it will take effect as from the date on  which the order  is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. .................."

In the present case it is not denied that order dated 16.6.1975 was published and again it's correction dated  15.8.1980 was also published  by Army  Authorities  and after acquittal dated  19.3.1980 petitioner applied for reinstatement   which was turned down vide letter dated  24.10.1981.

However, since  the learned counsel for the petitioner has made submission on merits, it is appropriate  that the case of the respondent be also examined on merits.  From the facts given by the respondent in the counter affidavit and the fact that the discharge certificate issued to the petitioner the word ' discharge' was mentioned it  was not  a case of dismissal of the petitioner  Under Section   20 of the Army Act on account of petitioner being imprisoned but his service was found no longer required.  Further,  after acquittal the petitioner's claim for reinstatement was also examined and the respondents refused to reinstate  the petitioner even after acquittal. This  Court has passed an order on 20.5.2005 to disclose as to whether  an army personnel  can be discharged only on account of he being imprisoned for certain period.   The respondent has filed order No. 149 of 1972 as Annexure-3 to the short counter affidavit  dated 18.8.2005 which is being extracted below :-

"AO 149/72 Discipline-Discharge of Army personnel from the service :-

1.Commanding officers must have a positive outlook in dealing with indiscipline. If award of minor punishments does not have the desired corrective effect on a person, whose conduct is unsatisfactory,  he should for the next offence be dealt with by court-martial.  Discharge of such persons in cases where the proper course would have been to initiate disciplinary action is not desirable.

2.Other Ranks will also not be discharged from service as a matter of course on account of their conviction, either before or after enrolment, by civil courts.  Commanding  officers will  use their discretion in  deciding whether the offence is of so serious  a nature, or the punishment awarded of so long a duration, as to merit discharge.  The importance of the duration of the term of imprisonment served lies in the fact that a man is liable to make undesirable contacts  in jail.  It will seldom be advisable to retrain in the Army a man who has recently been in jail, or main who has at any time been in jail for more than six months.  This also applies  to the rejection of potential recruits."  

A person who has remained in imprisonment for more than six months  can be discharged and no error was committed by the respondents in discharging the petitioner from service when he remained in imprisonment for more than six months.    The argument of the petitioner that the discharge order  was made retrospectively, cannot be accepted.  The subsequent order was published in 1980 amending the earlier published order in Part II which was only clarificatory in nature and does not make discharge  retrospective. The discharge  had in fact been implemented  with effect from 16.6.1975 with all consequences.  The discharge in the facts of the present case, thus cannot be held to be retrospective.   The submission of the petitioner that the respondents were obliged to draw proceedings for dismissal, cannot be accepted,   since the present case is confined to a case of discharge under Army Rules, 1954.   Rule 13 sub rule (3) (4) which  is also  mentioned in the discharge order.

The Army order 149/72 clearly provides for discharge of a person who has remained in Jail for more than six months.  The Army order states :

"The importance of the duration of the term of imprisonment served lies in the fact that a man is liable to make undesirable contacts in Jail.  It will seldom be advisable to retain in the Army  a man who has recently been in jail or man who has at any time been in Jail for more than six months"

One more factor to be noticed  it is that it was alleged  that while admitted in Military Hospital, he went out from the ward and said to have stabbed the lady in night of 7th /8th  of October, 1973 who died on 8th October.  After considering all circumstances including the acquittal order 19.3.1980 the Army authorities refused to reinstate the petitioner or to extend   any benefit.  No error has been committed by Army authorities  in denying relief to the petitioner.

The petitioner is not entitled for any of reliefs claimed in the writ petition.  The writ petition  lacks merit and is dismissed.  No costs.

D/-6.4.2007

SCS


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