Rameshwar Mahto vs Commanding Officer

Devendra Pratap Singh, J.—Heard learned Counsel for the parties.

The applicant was enrolled in the Army on 12.3.1966 and w.e.f. April, 1970 he was mustered as a Driver. While working as Motor Transport Driver in 504 Army Supply Corps Battalion attached to the 4th Mountain Division at Chaitham Lines, Allahabad, he was detailed for Regimental police duty to prevent pilferage of Government property belonging to the 4th Mountain Division. During his duty on 23.1.1984 he noticed Major A.P.E. Kutty, Subedar J.N. Rai and Havaldar Amar Singh and other military personnels carrying away three jerricans of petrol and 100 liters of diesel and he immediately reported the matter in writing to the commanding officer. Despite all sorts of third degree method adopted to withdraw his complaint against Major Kutty and others he refused and this became the reason for the wrath of the C.O. who charge sheeted him for making a false report against Major Kutty, Subedar J.N. Rai and Havaldar Amar Singh. After summary Court martial he was sentenced to three months rigorous imprisonment and dismissed from service vide order dated 13.3.1984. The said decision was subjected to challenge in Writ Petition No. 479 of 1985 before this Court with following prayers:

a) For quashing of the sentence of Summary Court Martial dated 13.3.1984.

b) Re-instatement of the Petitioner with original seniority.

c) Payment of arrears of pay and allowances.

A learned Single Judge of this Court after exchange of pleadings by an exhaustive judgment allowed the writ petition with costs and set aside the punishment order, holding:

Thus, there being a flagrant violation of the provisions of the Act and the Rules and the Principles of natural justice in conducting the proceedings against the Petitioner, the impugned order awarding punishment cannot be sustained.

Not content, the Army through The Union of India, Ministry of Defence, The Chief of Army Staff, The G.O.C. 4th Mountain Division and Commanding Officer filed Special Appeal No. 150 of 1991 and a Division Bench of this Court upheld the judgment and dismissed the appeal with costs vide order 7.11.1992. However, the judgment was not complied forcing him to file a Contempt Petition No. 1363 of 1993 where a plea was taken that the applicant had superannuated during pendency of the writ petition, and thus it was finally disposed off vide order dated 22.11.1994 directing the opposite parties that in case the applicant has reached the age of superannuation there cannot be reinstatement but he will be entitled to all pensionary benefits.

This contempt petition has been filed in October, 1996 with the allegation that the opposite parties have defrauded the Court by presenting wrong facts and in fact he had submitted a bond for service upto 62 years. It is also stated that his date of birth being 12.3.1947, he would retire in 2009 and his contemporaries are working as Subedar Majors but he is illegally being paid measly pension of a sepoy.

Upon issuance of notice, affidavits have been exchanged between the parties. It is pleaded on behalf of the opposite parties that the applicant had been considered for promotion to the rank of Nayak in 1981 but as he was placed in low medical category, he was not eligible for it and after up gradation he was again considered for promotion to the rank of Nayak in February, 1984 but he had earned a punishment under Sections 63 and 41 of the Army Act and therefore, again he was rendered ineligible for promotion up till 2.2.1985 but the Petitioner did not challenge this action and his case for promotion was rejected and accordingly, he had exhausted all his chances for promotion to the post of Nayak prior to his dismissal on 13.3.1984 and after the judgment of this Court he was notionally reinstated but as he had attained the age of superannuation on 31.3.1984, neither he could be allowed to continue further nor was entitled to any arrears etc. except for the period between the dismissal and his superannuation which was already paid to him. It is further stated that the terms of engagement of a Sepoy, like the Petitioner, is 17 years of service with color or 40 years of age and since the Petitioner had completed his term of engagement, he was not entitled to further continuance in service. There is a specific denial that there was any bond of service up till the age of 62 years and in fact, it is stated that only the Chief of the Army staff is to retire at the age of 62 years. The counsel for the applicant has failed to show by any authentic evidence or rules that the aforesaid allegations were incorrect.

However, learned Counsel for the applicant has relied upon a decision of the Apex Court in the case of Commissioner, Karnataka Housing Board v. C. Muddaiah 2007 (7) SCC 689 to contend that even if, there is no direction for consequential benefits, the legitimate outcome would be that the applicant is entitled to actual reinstatement. In the opinion of the Court, the facts in the aforesaid case were entirely different but in the present case the applicant had already attained the age of superannuation on 31.3.1984 and notionally he was reinstated up till that date and paid the salary etc.

In view of the aforesaid, it cannot be said that there is any willful or deliberate violation of the writ judgment.

Accordingly, notices are discharged, contempt petition is rejected and consigned to records.