IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 20TH JULY 2007 / 29TH ASHADHA 1929 OP.No. 14921 of 1995(B) ----------------------------- PETITIONER: --------------- R.T.RAJAN PILLAI, (NO.1349803-EX.LANCE HAVILDAR) VALLIATH HOUSE, KURATHIKAD P.O., MAVELIKKARA, ALLEPPEY DISTRICT. BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENTS: ------------------ 1. UNION OF INDIA, REP.BY THE SECRETARY OF DEFENCE, GOVERNMENT SECRETARIAT R.K.PURAM, NEW DELHI. 2. THE CHIE OF ARMY STAFF, ARMY HEADQUARTERS, R.K.PURAM, NEW DELHI. 3. THE GENERAL OFFICER, COMMANDING -IN-CHIEF, SOUTHERN COMMAND PUNE. 4. THE COMMANDING OFFICER, M.T.COMPANY, MADRAS ENGINEERING GROUP & SECTOR, BANGALORE 42. 5. THE SENIOR RECORD OFFICER, RECORD OFFICE, MADRAS ENGINEER GROUP, P.B. NO.4201, SIVA CHETTY GARDEN, BANGALORE 42. BY ADV. SRI.K.L.JOSEPH (ACGSC) SRI.JOHN VARGHESE, ASSISTANT SG THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/ 07/2007 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.14921/1995 JUDGMENT NONE APPEARS. DISMISSED. 20.07.2007 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE ORDER ON CMP. NO.26701/1995 IN OP. NO.14921/1995 DISMISSED 20.07.2007 SD/- THOTTATHIL B.RADHAKRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J ================== O.P.No.14921 of 1995 ================== Dated this the 28th day of October, 2008. J U D G M E N T The petitioner was a Lance Havildar of the Indian Army in 1982. He was in charge of stores of the 4th respondent in the Store Depot. On allegations of theft of certain stores, the petitioner was subjected to Court Martial and dismissed from service on 18.3.1985. The petitioner challenged the said dismissal before this Court by filing O.P.No. 6751of 1987. In that inter alia he raised a contention that the Court Martial proceedings themselves are illegal as barred by limitation. Although the other contention of the petitioner were rejected by this Court, in the judgment dated 26.6.1991 in that original petition, this court found that the contention of the petitioner on limitation merits consideration. Accordingly, this Court held thus in that judgment, a certified copy of which was made available to me for perusal. “.....Lastly, it is urged that the trial itself is illegal and barred by limitation. For this the petitioner bases his contention on Section 122(1) of the Army Act wherein it is stated that except as provided by sub-section (2), no trial by court-martial of any person subject to this Act for any offence shall be commenced after the expiration of a period of three years from the date of such offence. In this also there is no pleading. I have no doubt it is seen that the O.P.No.14921 of 1995 - 2 - ground has been raised in the revision as well as in this Court. But Rule 53(1)(c) requires that the petitioner should have raised the plea at the time of the court-martial. At that time bar on account of the time limit under Section 122 ought to have been raised before the court-martial. This also has not been done by the petitioner. Since this is a question relating to limitation and it is not clear as to what steps the respondents would have taken, I feel that the matter requires reconsideration by the 2nd respondent. In Ext.P7 it is stated that the petitioner was punished for a time barred offence. Therefore, the punishment will have to be examined on this aspect. The question whether the trial by court martial was commenced after the expiration of the period of three years from the date of such offence will require ascertainment of facts as to when the court martial proceedings commenced and when the offence was committed. There is not pleading on this. Question will depend upon the ascertainment of facts. Even though a plea has not been taken at the earlier opportunity as required under Rule 53(1)(c) to avoid any hardship to the petitioner, I am remanding the matter to the 2nd respondent who will be in a better position to ascertain the facts and pass appropriate order. If this fact is adverted to what would have been the punishment is the matter to be considered by the 2nd respondent and hence, I am directing him to dispose of Ext.P7. The 2nd respondent shall dispose of Ext.P7 afresh within a period of six months from the date of receipt of a copy of this judgment. The Original Petition is disposed of as above.” Pursuant thereto the respondents passed Ext.P9 order followed by Ext.P10. Ext.P9 order reads thus: “1) Refer to your petition dated 30 Jan 95 regarding implementation of Court Order, addressed to Chief of Army staff. 2) As per judgment, dated 26 Jun 1991 on OP No.6751 of 1987 your review petition dated 23 May 87 against the finding and sentence of SCM was placed before the Competent Authority at Army Headquarters who after due consideration has rejected the same. The above information has already been communicated to you by Army Headquarters vide their letter No.C/00748/DV-3 dated 23 Jan 92(copy enclosed for ready reference)” O.P.No.14921 of 1995 - 3 - Ext.P10 reads thus: “1. This is to inform you that the petition dated 23 May 87 submitted by you against the finding and sentence of SCM was placed before the competent authority at this HQ who after due consideration has rejected the same.” 2. The petitioner's contention is that the respondents have not complied with the directions of this Court in the right spirit in so far as no reasons whatsoever has been mentioned either in Ext.P9 or Ext.P10, for arriving at the conclusions reached in Exts.P9 and P10. In the above circumstances, the petitioner seeks the following reliefs: “i) Issue a writ of certiorari or other appropriate writ order or direction calling for the records leading to the punishment imposed on the petitioner in the Summary Court Martial and quash the same as illegal ultravires and barred by limitation. ii) Issue a writ of certiorari or other appropriate writ order or direction calling for the records leading to Ext.P10 as illegal, arbitrary and opposed to mandate or this Court. iii) Issue a writ of mandamus or other appropriate writ order of direction commanding the respondents to reinstate the petitioner retrospectively with effect from 18.3.1985. or In the alternate issue a writ of mandamus or any other appropriate writ order or direction directing the respondents disburse the petitioner his pensionary benefits on his discharge as if no disciplinary action was against him.” 3. In the counter affidavit filed on behalf of the respondent, what is stated in this regard is as follows: O.P.No.14921 of 1995 - 4 - “11. This Hon'ble court by its judgment dated 26.06.1991 directed the department to dispose of the appeal dated 23.05.1987. Accordingly, the Summary Court Martial proceedings were placed before the competent authority at Army Headquarters, who after due consideration rejected the same upholding the decision of Commanding Officer, Depot Battalion as genuine. Accordingly the petitioner was informed direct by Army Headquarters, by there letter No. C/00748/DY-3 dated 23.01.1992. In the meantime the Summary Court Martial proceedings pertaining to the individual have been destroyed as expiry of its time limit prescribed for preservation, that is after 10 years, under the provisions of Defence Service Regulations, clause 592 to 596. 12. The petitioner has been dismissed from service under the provisions of Army Act is inelegible for pension, gratuity and other concessions admissible to ex-servicemen in respect of previous services, under the provision of pension regulations Part I (1961) para 113(a). The petitioner also cannot be treated as Ex-servicemen. As such the petitioner was not granted pension or gratuity.” In that also there is absolutely no mention about the question of limitation specifically directed to be considered by the judgment which is quoted above. The explanation that the Court Martial proceedings pertaining to the petitioner have been destroyed is no excuse for non-consideration of the issue as directed in the judgment. When the challenge against the Court Martial proceedings were pending before this Court, the respondents could not have destroyed the Court Martial proceedings and they were bound to preserve the same until the case is finally decided either way. That being so, Exts.P9 and P10 orders are liable to be quashed for non-compliance O.P.No.14921 of 1995 - 5 - with the directions of this Court in the judgment in O.P. 6751 of 1987. I do so. 4. Now the next question is as to what relief the petitioner is entitled to. There is no question of reinstatement of petitioner in service at this point of time, in so far as he has already passed the age of superannuation. In view of the absence of records admitted by the respondents the court martial proceedings cannot also now be taken to this logical conclusion. 5. In the above circumstances, the only other alternative is to direct the respondents to give the petitioner retirement benefits due to him as if he had retired on attaining the age of superannuation, on the date when he actually attained the age of superannuation. Accordingly, this original petition is disposed of with a direction to the respondents to pay to the petitioner retirement benefits as if the petitioner had been discharged from service on attaining the age of superannuation, without reference to the Court Martial proceedings. However, I make it clear that he will not be entitled to any emoluments from the date of dismissal till the date of attaining the age of superannuation. But the said period also will be counted as service for the purpose of O.P.No.14921 of 1995 - 6 - calculating retirement benefits. Appropriate orders in this regard shall be passed and arrears of retirement benefits paid to the petitioner within three months from the date of receipt of a copy of this judgment. The petitioner shall be continued to be paid pension every month as in the case of other retired military personnel. The original petition is disposed of as above. S.SIRI JAGAN, JUDGE rhs