Risaldar Dilbag Singh vs Union Of India And Others

Vide separate order pronounced today, OA stands dismissed.

However, the applicant is granted liberty to move appropriate Mercy Petition within 15 days of the passing of the order. In case such an application is

moved, the Competent Authority shall decide the same within six months.

Counsel for the applicant makes an oral prayer for grant of leave to appeal under Section 31 of the Armed Forces Tribunal Act, 2007. However, he

has not been able point out any substantial question of law of general public importance involved in the order, which warrants grant of leave to appeal.

As such, prayer made by the counsel for the applicant is declined.

Aggrieved by the impugned order dated 30.12.2014 passed by the Chief of Army Staff (COAS), the applicant has filed the instant O.A. seeking the

following reliefs:

(i) Direct reinstatement of the petitioner in service forthwith will all consequential benefits including back wages, seniority, continuity of his service,

promotions etc, by quashing and setting aside impugned order dated 30.12.2014 passed by COAS;

(ii) Convert petitioner's dismissal from service into discharge from service or treat the petitioner as having discharged from service from the date of

impugned order with further directions to respondents to release to the petitioner his all entitled benefits arising out of discharge within 2 weeks from

the date of order;or in the alternative, Convert petitioner's dismissal from service into compulsory retirement/removal from service from the date of

impugned order with further directions to respondents to release to the petitioner his all entitled benefits arising out of such compulsory

retirement/removal within 2 weeks from the date of order.

(iv) Direct the respondents to release encashment of leave to the petitioner forthwith.

Brief facts of the case are that the applicant was enrolled in the Army on 24.04.1994. The wife of the applicant expired on 20.03.1998 after

consuming somepoisonous substance. A case of dowry death was registered against the applicant, who was a serving Sepoy, and he was produced

before the CJM, Amritsar and on 09.04.1998, he was remanded to judicial custody. On 22.02.2001, the Sessions Judge convicted the applicant under

Section 304B of the Indian Penal Code and sentenced him to undergo seven years' rigorous imprisonment. The applicant appealed to the Hon'ble

Punjab and Haryana High Court and on 22.05.2001, he was released on bail. In the meantime, the applicant was allowed torejoin his duty on

02.05.2001. During the course of about next 14 years of service, he was promoted upto the rank of Nb Ris. On 29.08.2013, the Honsble High Court

affirmed his sentence. Subsequently his appeal was also dismissed by Hon/31e Supreme Court and he surrendered himself on 17.01.2014 while on

leave. After completion of the sentence, the applicant was released from jail on 15.08.2015. It is pertinent to mention that the applicant was dismissed

from service vide order dated 30.12.2014 while he was serving the sentence.

Learned counsel for the applicant submitted that the applicant has an unblemished service record in the unit. He further accentuated that keeping in

view his overall service profile and achieving a prestigious JCO rank in the Army, he deserves to be reinstated in service with all back wages. Relying

upon the decision in Ex Commodore Sukhjina'er Singh V. U171.017 of India and others (0.A. No 302/2013), Ex Cdr SS Payal V. Union of India and

others (0.A. No 27/2013), Ex Sgt RK Sutar V. Union of India and others (Armed Forces Tribunal, Regional Bench, Chennai 0.A. No 35/2013), Ex

CO Aladan Kumar Singh V. Union of India and others (0.A. No 318/2013), Nk Ashok V. Union of India and others (Armed Forces Tribunal,

Regional Bench, Cochi0.A. No 88/2012), Ex Nk Manoj Kumar Mishra V. Union of India and others (0.A. No 146/2011), and S. Muthu KU171aral7

V. Union of India and others (Hontble Supreme Court Civil Appeal No 352/2017, arising out of Diary No 20062/2016), the learned counsel concluded

by pleading that the applicant may be either reinstated in service or in the alternative, his dismissal order be converted into discharge order, keeping in

view his pensionable service so as to enable him to get pension and other benefits. He further stated that the applicant has an 18 years old daughter

and aged parents to look after.

On the other hand, learned counsel for the respondents averred that the applicant is guilty of suppresio yeti and suggestio falsi. He rejoined the

Regiment on 02' May 2001, but he never informed the Regiment regarding the proceedings and result of the Trial Court in FIR No 32/1998 when, in

fact he rejoined the service after being convicted of an offence of dowry death. He also did not inform the Regiment that he has preferred an appeal

against the same before the High Court of Punjab and Haryana which was eventually dismissed vide order dated 29th August, 2013. He kept the

respondents in dark by not informing that he had rejoined the Regiment in May 2001 after being released on bail and also failed to inform regarding his

conviction. The applicant was granted 30 days Part of Annual Leave wef 17th January, 2014 to 15thFebruary 2014 with permission to suffix on

16thFebruary, 2014. In his leave application the applicant did not make even a whisper about his conviction or about the case going before Hon'ble

High Court of Punjab and Haryana. It is further averred that the applicant failed to rejoin duty on 17thFebruary, 2014 after completion of period of

leave and was therefore declared as Overstaying leave. Efforts were made to contact him telephonically and through his family members, but to no

avail. Apprehension Roll was issued to all concerned on 28 February, 2014. A Court of Inquiry to investigate the issue of Overstaying leave by the

applicant was convened on 18 March, 2014 which assembled on 20'h March, 2014 and declared the applicant a deserter vide Part II Order No

0/0031/0001/2014. When the Police did not respond to the Apprehension Roll even after expiry of four months, a Non Commissioned Officer was sent

to Tarantaran (Punjab) to ascertain the facts and reasons for not replying to the Apprehension Roll. It was only then the respondents came to know

that the applicant has been arrested on l7 January, 2014 consequent to the orders of Hon`ble High Court of Punjab and Haryana. Even one Non

Commissioned Office was instructed to visit to Next-of-Kin of the applicant to ascertain the facts. After much denial, the parents of the applicant

finally admitted that he had been convicted and was serving his sentence in Jail. The Non Commissioned Officer also met with Superintendent of

Police of Central Jail, Amritsar to ascertain the presence of the applicant who confirmed that the applicant was, in fact, serving his jail term there. It is

submitted that as the applicant never informed the respondents about his conviction by the Trial Court and confirmation of the same by Hon'ble High

Court and only after procuring certified copies of the order on 04th September, 2014, the Regiment of the applicant initiated the case with the higher

authorities for the dismissal of the applicant under section 20 of the Army Act, 1950, read with Rule 17 of the Army Rule and Para 420 of the

Defence Service Regulations, 1987. Accordingly, he was dismissed from service by the COAS vide order dated 30th December, 2011. The applicant

can't be allowed to take advantage of his own wrongs. The counsel further submitted that since the applicant has committed an offence of grievous

nature, he was rightly dismissed from service as undesirable soldier. He pleaded that the applicant is not entitled to any relief and prayed for dismissal

of the Original Application.

We heard learned counsel for the parties and have carefully perused the records.

The undisputed facts are that:-

(i) The applicant was convicted for a very serious and grave offence under section 301 B of the IPC and was sentenced to 7 years Rigorous

Imprisonment by the Sessions Court on 22 I' January, 2001.

(ii) The applicant was dismissed from service under Section 20 of the Army Act, as per order of the COAS dated 30th December, 2014, after his

conviction by the Hon'ble High Court of Punjab and Haryana. The order passed by Hon'ble High Court was challenged before the Hon'ble Supreme

Court by way of filing of SLP which was dismissed in limine. The applicant rejoined Regiment in May 2001, till 16''' January, 2014 when he was

granted 30 days Part of Annual Leave.

There is, however, a dispute as to whether the applicant informed the competent authorities regarding his conviction by the Trial Court and release

on bail. Reliance has been placed by learned counsel for the applicant on Part II Order No 46 dated le May, 2001 which records:

Handed over to Civil Police at Amritsar (PS) for investigation and trial for the offence under IPC Section 304 (b)/34. SORS wet07h April,

1998"".

The Other Part II Order No 61 dt 25''' May, 2001 records:-

Released on bail from civil custody (Central Jail, Amritsar, Punjab) on 02'd May 2001. Granted 7 days Casual Leave from 02'd May, 2001

to 0811 May 2001. TORS wef 0_9' May 2001.

Learned counsel also referred to a letter dated 04111 May, 2001 sent by him to the CO seeking permission to rejoin duty wherein he has given the

details about the trial being faced by him and his conviction by the Sessions Court. In this letter he has also informed that he has been released on bail

by Honible High Court. There is a remark below this letter by Co] GS Malhi : ""Swr Dilbagh to rejoin and take him on strength.

However, so far as Part II Orders, as referred above, are concerned, the same does not show that the respondents were aware about the

conviction of the applicant by the Sessions Court or his release on bail (by Punjab and Haryana High Court). As regards the letter dated 04th May,

2001, which is allegedly written by the applicant seeking permission to rejoin, the respondents filed an additional affidavit/ Surjoinder stating therein that

the copy of the application produced by the applicant does not have any endorsement or marking of the concerned branch, date of receipt or the initial

of the Second-in-Command (2IC) on the remark of the Maj Gen GS Malhi, which is procedure for the first sight dak in the Regiment and it is alleged

that the original of this application does not form part of the records held by the respondents. In view of the foregoing, it is not firmly established as to

whether the respondents were aware of the conviction of the applicant by the Sessions Court before he was allowed to rejoin the duties. Otherwise,

there was no plausible reason to the respondents to issue apprehension rdl on 28.02.2014 when applicant failed to join duties or to convene court of

inquiry on 18.03.2014 or to declare him deserter, then sending non commissioned officer to Tarantaran Police Station, house of the applicant and

Central Jail, Amritsar and thereafter initiating proceedings for his dismissal. At the most, Part II Order reveals that he was handed over to the Police

for investigation and trial for an offence under section 304 B 1PC and after his release on bail from civil custody on 0211' May, 2001, he was granted

7 days Casual Leave from 021d May 2001 to 08'1' May 2001.

Even assuming for the sake of arguments that the respondents were aware about the factum of conviction of the applicant by the Sessions Court

for a serious offence under section 304 B 1PC and he was allowed to continue in service for a substantial period of about 14 years, the moot question

is whether order of dismissal passed by the competent authority, is liable to be converted to discharge?

We have carefully gone through the judgement passed by Honible High Court of Punjab and Haryana in SC Arora's case (supra). In this case

Honible High Court was considering the provisions of Punjab Police Rules, 193,1 and Punjab Civil Services (Punishment and Appeal) Rules, 1970. The

relevant portion of the judgement so far as is relevant to the present purpose is reproduced as under:-

No doubt, Rule 16.2 of the afiliab Police Rules, 1934, stipulates that an official convicted and sentenced to imprisonment on a criminal

charge shall be dismissed, however, second proviso to this very rule gives discretion to the punishing authority to impose lesser punishment

than that of dismissal 'in an exceptional case involving manifestly extenuating circumstances"", It would, thus, show that though the normal

rule is dismissal, but at the same time if the circumstances are exceptional which disclose extenuating features; the punishing authority can

impose punishment other than that of dismissal as well. Of course, in such a case, the punishing authority has not only to record the reasons

which would obviously reflect how it is exceptional involving manifestly extenuating circumstances, but punishing authority is also supposed

to take prior approval of the next higher authorities.

As such, even as per this judgement the normal rule in case of conviction of a criminal charge is dismissal and it is only in exceptional

circumstances that a lesser punishment can be imposed. In the instant case, there are no exceptional circumstances which warrant lesser punishment.

Even Devraj case (supra) does not help the applicant, because in that case there was leakage of question papers. As per the report of the CBI,

the petitioner was also responsible in the leakage. However authorities chose not to proceed against him to hold a court martial. Subsequently, on the

basis of CBI inquiry, a charge sheet was filed in a criminal court in which apart from the petitioner, four other persons were arraigned. Criminal

proceedings initiated against the petitioner resulted in his discharge. Despite that his services were terminated. Challenge was laid before the Honible

Supreme Court against the termination. Keeping in view the facts and circumstances of the case, the termination order was set aside and the appellant

in that case was ordered to be reinstated. Things are entirely different in the instant case. Conviction of the applicant by the Sessions Court stands

upheld up to Honible Supreme Court. The other judgements relied upon by the learned counsel for the applicant also does not help him as the same

were rendered on the factual matrix appearing in those cases. That being so, there is no justification in interfering with the order of dismissal of the

applicant from service passed by COAS and the same deserves to be upheld.

The only question which is left for consideration is whether despite rendering 17 years of qualifying service for pension, the applicant is eligible for

pension.

The records reveal that the applicant had challenged the decision of the 1--lon'bie High Court with regard to upholding the conviction before the

Honible Supreme Court by way of filing a Special Leave Petition, which was also dismissed by the Honible Supreme Court. Thus the following facts

are absolutely clear to us:-

(i) That the applicant has served in Indian Army since his enrolment i.e. 24.04.1994 till he was dismissed from service vide orders of COAS dated

30.12.2014. This period includes certain long periods of judicial custody between 1998 and 2001.

(ii) The applicant was allowed to continue in service after he was granted bail by the High Court on 22.05.2001 i.e. within three months of his

conviction and seven-year sentence by the Sessions Court.

(iii) That the applicant rose to the rank of KO and served for over twenty years before he was dismissed from service by orders of COAS. Thus,

even after removing the long periods spent by the applicant in judicial/policecustody between 1998 and 2001 as non-qualifying service for pension, the

applicant has about 17 years of qualifying pensionable service in the Army.

Thus, after considering the factual position of the case, it is clear that although applicant rendered about 17 years of qualifying service for pension,

he has been dismissed from service, hence, prima facie, he is not eligible for pension. However, since he has completed pensionable service and

completed his sentence as per the Court order, the respondents, at their discretion, can consider his case for grant of pension under Regulation 113 (a)

of Pension Regulations for the Army, 1961. For convenience sake, the aforesaid Regulation is quoted as under:

(a) An individual who is dismissed under the provisions of the Army Act, is in eligible for pension or gratuity in respect of all previous

service. In exceptional cases, however, he may, at the discretion of the President be granted service pension or gratuity at a rate not

exceeding that for which he would have otherwise qualified had he been discharged on the same date.

(b) An individual who is removed lion/ service under Army Act, Section 20, may be considered for the grant of pension/gratuity at a rate not

exceeding that for which he would have otherwise qualified had he been discharged on the same date. The competent authority may,

however, make, if wnsidered necessary, any reduction in the amount of pension/gratuity on the merits of each case.

In view of the above, we do not find any merit in this application, to interfere with the dismissal action taken by the respondents against the

applicant, as such the Original Application is dismissed. However, considering the facts and circumstances of the case and in view of Regulation

113(a) of the Pension Regulations for the Army 1961 quoted above, the applicant may file an appeal (mercy petition) before the competent authority,

if he is so advised. In case the applicant files such an appeal (mercy petition) within a period of two weeks, the respondents shall consider the same

within six months thereafter, in accordance with the law and communicate the decision taken thereon to the applicant.

No order as to costs.

Pronounced in open Court on this the 9th day of January, 2020.