IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/S) No. 1126 of 2004 Govind Nath ….Petitioner. Versus State of Uttarakhand and others …Respondents. Present : Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Ms. Anjali Bhargava, Standing Counsel for the Union of India. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. M.C. Kandpal, Senior Advocate assisted by Mr. S.S. Chaudhary, Advocate for the petitioner, Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand and Ms. Anjali Bhargava, Standing Counsel for the Union of India. The petitioner was a Revenue Officer, a Patwari, in the Uttarakhand Revenue Services. Vide order dated 15.9.2004 (Annexure No. 7 to the writ petition) his services have been terminated. The petitioner has challenged this order before this Court. Prior to his joining the above revenue services as Patwari in the year 1991 the petitioner was a “Sepoy” in the Indian Army, with the Kumaon Regiment. While he was a Sepoy in the 9th Batallion of Kumaon Regiment which was deployed as a part of the Indian Peace Keeping Force in Srilanka in the year 1989, he faced a Summary Court Martial and subsequently was “dismissed” from services. Consequently, thereafter he joined services as Patwari. He continued to perform the services of Patwari and there is no complaint whatsoever against him during his tenure as Patwari in the revenue services. All the same, on a complaint received from the Records Officer of Kumaon Regiment Headquarters at Ranikhet dated 10.4.2003 with the District Magistrate, 2 Bageshwar which stated they have been informed that Ex- Sepoy Govind Nath resident of Village Kafaldunga, Post- Bantoli, Baijnath, Tehsil-Garur, District Bageshwar is working as a Patwari in Uttarakhand revenue services and that prior to his joining as Patwari he was a Sepoy in Indian Army and was awarded a punishment of dismissal from service after facing Summary Court martial, although “he is not eligible for appointment to a Civil Post”. The complaint adds further that “some villagers have also complained to this office that he (i.e. the petitioner) is threatening and harassing them (copy of complaint is enclosed in original).” This became the main reason for the District Magistrate, Bageshwar to institute an enquiry against the petitioner where it was found that the petitioner was charged under Section 40 (a) of the Army Act. Section 40 of the Army Act reads as follows :- 40. Striking or threatening superior officers. – Any person subject to this Act who commits any of the following offences, that is to say,- (a) uses criminal force to or assaults his superior officer; or (b) … (c) … if, such officer is at the time in the execution of his office or, if the offence is committed on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and in other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned: Provided that in the case of an offence specified in clause (c), the imprisonment shall not exceed five years.” Under the Army Act, 1950 there are certain offences given under sections 34 to 68 (one of them being Section 40, with which we are presently concerned and which has been referred above). These offences also prescribe the punishment if one is convicted of that offence. For example, under Section 40 of the Army Act punishment for striking or threatening superior officer is given as under :- 3 “if, such officer is at the time in the execution of his office or, if the offence is committed on active service, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned; and in other cases, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is in this Act mentioned: Provided that in the case of an offence specified in clause (c), the imprisonment shall not exceed five years.” All the same, a lesser punishment can also be imposed. This is given under Sections 71, 72 and 73 in Chapter VII of the Army Act. Section 71 of the Army Act reads as follows :- “71. Punishments awardable by courts- martial. – Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by court-martial, according to the scale following, that is to say, - (a) death; (b) transportation for life or for any period not less than seven years; (c) imprisonment either rigorous or simple, for any period not exceeding fourteen years; (d) cashiering, in the case of officers; (e) dismissal from the service; (f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers; and reduction to the ranks or to a lower rank or grade, in the case of non- commissioned officers: Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy; (g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service; (h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; 4 (i) severe reprimand or reprimand, in the case of officers, junior commissioned officers, warrant officers and non-commissioned officers; (j) forfeiture of pay and allowances for a period not exceeding three months for an offence committed on active service; (k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal; (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.” Thereafter Section 72 of the Army Act reads as follows :- “. 72. Alternative punishment awardable by court-martial. – Subject to the provisions of this Act, a court-martial may, on convicting a person subject to this Act of any of the offences specified in sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in section 71, regard being had to the nature and degree of the offence.” A joint reading of the aforesaid two provisions clearly show that it was not necessary for the summary court martial to award only the punishment which was given under Section 40 of the Act and it could have awarded lesser punishment, which was actually awarded i.e. dismissal, in the present case. It is therefore indeed true that the petitioner has been dismissed from service after facing a summary court martial. On this, there is no doubt. All the same, it is equally true that it has been written in the order received by the petitioner after his dismissal that he has been “discharged from service” and further that his character at the time of his discharge from service was “satisfactory”. Nevertheless, the District Magistrate relied upon the Adjutant General’s order of December, 1989 which reads as follows : 5 December 1989 1 SAO Special army order ADJUTANT GENERAL’S BRANCH SAO12/S/89Prohibition against re-employment of dismissed Personal for the quarter ending Sep 89 1- Details for the quarter ending sep89 of personal dismissed for the service are given as per appendix to the army order. 2- Their re-employment is prohibited. A/54752/33/DV-3 Y. S. Tomar Lt. Gen. Adjutant general -------------------------------------------------------------------------------------------- December 1989 22 SAO (a) (b) (c) (d) (e) 60. 417902 H Sep Bahadur Nath Hindu V Kafa Dhunga Govend Nath PO Bantoli Kuman Regi. The.Bageshwar Ment/9th Kumaon Distt. Almora What weighed in the mind of the District Magistrate was that his employment is prohibited. This Court while hearing this matter thought it necessary that though the counter affidavit has been filed by the State, the stand of Army authorities must also be looked into. Therefore vide order dated 4.12.2008 petitioner was directed to implead the Army authorities and subsequently the counter affidavit was called from the Army authorities. This counter affidavit has now come on record. In this counter affidavit which is filed by Major Kirtan Singh who is presently working as Senior Record Officer with Records in Kumaon Regiment, what the Army authorities have stated in para 4 are as under :- “4. That on award of punishment dismissal details of the petitioner were published in the Special Army Order 12/S/89 (CTC attached) prohibiting him for re-employment. The Army Orders are applicable for Army Establishments. Notwithstanding this office is unable to comment upon his eligibility for employment by the State Governments. A copy of the Special Army Order alongwith letter of Record Officer, Kumaon Regiment is being filed herewith and marked as Annexure No. SCA -1 to this affidavit.” 6 Annexure SCA- 1 which is order dated 3.9.2010 of Records Officer, Kumaon Regiment says as follows :- “1. Ref your letter No. 4179102/GN dt 16 Aug 10. 2. In the above context, it is to intimate that the petitioner was tried by Summary Court Martial and dismissed from service with effect from 07 Jul 1989 for committing an offence under Army Act Section 40 (a). At the time of dismissal his character was assessed as ‘Satisfactory’. 3. On award of punishment of dismissal, details of the petitioner were published in the Special Army Order 12/S/89 (CTC attached) prohibiting him for re-employment. The Army Orders are applicable for Army Establishments. Notwithstanding, this office is unable to comment upon his eligibility for employment by the State Governments. 4. It is requested that such clarification may please be obtained from higher authorities.” In other words, the stand of the Army Authorities before this Court is that the orders of the Army authorities are applicable to Army Establishments alone. In other words, “re employment is prohibited” would mean that employment of the petitioner was prohibited in the Army services. It is true that in service jurisprudence the word “dismissal from service” has no ambiguity. A person who has been inflicted the punishment of dismissal from service cannot be employed in any other Government service. All the same, the question here is whether the same meaning of “dismissal from service” as is applicable in civil service is also applicable in the present case. Undoubtedly the word which has been used in petitioner’s case is also “dismissal from service”. But in view of this Court the word “dismissal” must be examined in the context where it has been used. The petitioner has not been dismissed from service while serving in a civil establishment but he has been dismissed while serving as a Sepoy in the Indian Army. The parameters and the degree of strictness and the procedure applicable in the two services are 7 quite different. Merely because the petitioner has been dismissed from Army service would not mean that he is unfit for re-employment in civil services! This is clarified from the letter dated 3.9.2010 of the Army authority which states that dismissal would mean that the petitioner is not fit for re- employment in Army services. It is common place in the Army that when a Army personnel is discharged from service he quite often gets re-employment in other Army establishments. It is this “re-employment” which has been prohibited in the case of the petitioner. However, ipso facto it would not mean that the doors of civil services are closed for the petitioner. A word acquires meaning in the context where it is used. The word “dismissal” here has been used in an entirely different context and it has not been used as it is used in civil employment. The petitioner has also alleged mala fide against the letter of Army Records Officer dated 10.4.2003, where the petitioner alleges that the mala fide is apparent from the record as the letter states that “other villagers have also made complaint against the petitioner”. Something which was not required to have been stated. There is another aspect to this matter. Article 311 of the Constitution of India gives certain protection to a member of Civil Service. This protection primarily is that he shall not be dismissed or removed or reduced in rank “except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges”. Between “dismissal” and “removal”, dismissal is more severe kind of punishment as one who has been “removed” is still eligible for public employment but a civil servant, whose services have been terminated by way of “dismissal” becomes ineligible for any future public employment. Therefore, “dismissal” is more severe form of punishment here. Logically therefore, this punishment can 8 only be awarded after a civil servant has been heard in a disciplinary proceeding, where he has been given a full opportunity of hearing to rebut the charges against him, cross-examine the witnesses, etc. Nothing of this sort has happened with the petitioner as he was not a member of civil service! This Court vide its order dated 14.7.2011 had called for the records of the case. The records which were presented before this Court do not disclose the details of the charges against the petitioner or as to what actually transpired in Sri Lanka where the petitioner was at the relevant time as part of Indian Peace Keeping Force, inasmuch as there is nothing to show as to what the petitioner had actually done in order to face a summary court martial. There is no such record before the Court apart from the statement of the bare Section of Section 40 (a), under which the petitioner was charged, which has already been referred above. Thus, there was nothing before this Court to show as to what was the actual allegation against the petitioner and whether under the parameters of principle of natural justice and fairplay, an opportunity of hearing, as we understand in a civil service jurisprudence, was ever made available to the petitioner. Of this there is no record. This Court has also been informed at the bar that in a “summary court martial” there is no detail proceedings. The proceedings are only of summary in nature, as the name “Summary” itself suggests. This being the situation, the rigours of “dismissal” such as the petitioner becoming ineligible for any future employment in civil service seems to be not only harsh but also unjustified on pure appreciation of law and logic. This Court therefore holds that the termination of the services of the petitioner is wholly unjustified on the grounds alleged. The order dated 15.9.2004 (Annexure No. 7 to the writ petition) is hereby quashed. The respondents are directed to immediately reinstate the petitioner in service. 9 At this stage, the senior counsel appearing for the petitioner Mr. M.C. Kandpal submitted that the petitioner is liable to be reinstated in service along with entire back-wages. The prayer of the petitioner may not be allowed in its entirety for the reason that there is no evidence before this Court as to the engagement of the petitioner during this period. However, under the facts and circumstances of the case, it would serve the ends of justice if the petitioner is reinstated in service alongwith 50 per cent back-wages. It is clarified that as far as other service benefits of the petitioner are concerned, the petitioner would be treated to have continued in service. Writ petition is allowed. No order as to costs. (Sudhanshu Dhulia, J.) 8.8.2011 Kuldeep