CIVIL WRIT JURISDICTION CASE No.10904 OF 2008 Against the order passed in O.A. No. 858 of 2004 by the Central Administrative Tibunal, Patna ---------------- 1. THE UNION OF INDIA THRU THE SECRETARY, GOVT. OF INDIA, MINISTRY OF DEFENCE, NEW DELHI 2. THE ADJUTANT GENERAL, A.G.S., BRANCH ARMY HEAD QUARTER, DHQ, NEW DELHI-11 3. THE ADDITIONAL DIRECTOR GENERAL OF RECRUITING, DIRECTOR RECRUITING 5 [OR] [B], ADJUTANT GENERAL BRANCH, ARMY HEAD QUARTERS, WEST BLOCK-111, R.K. PURAM, NEW DELHI-110066 4. THE DIRECTOR/DEPUTY DIRECTOR, RECRUITING 5 [OR] [B], OFFICE OF ADDL. DTE. GEN, OF RTG., A.GS, BRANCH, ARMY HQRS., WEST BLOCK-III, R.K.PURAM, NEW DELHI-110066. 5. THE CENTRAL COMMAND, LUCKNOW THRU THE G-O-IN-C., HQRS, CENTRAL COMMAND, LUCKNOW-226002. 6. THE HQ MADHYA BHARAT AREA ‘A’ JABALPUR THRU MAJOR GENERAL, HQ MADHYA BHARAT AREA ‘A’ JABALPUR-480002. 7. HQ JOB SUB-AREA CANTT. [ERSTWHILE B&O SUB-AREA DANAPUR CANTT.] THRU THE SUB-AREA COMMANDER/OC TROOPS/ADM. OFFICER, DANAPUR CANTT., PATNA. 8. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS [PENSION], ALLAHABAD. 9. JOINT CONTROLLER OF DEFENCE ACCOUNTS [FUNDS], MEERUT-250002. 10. THE CONTRTOLLER OF DEFENCE ACCOUNTS, PATNA-19 11. PRINCIPAL CONTROLLER OF DEFENCE ACCOUNTS [CENTRAL COMMAND], LUCKNOW-2. 12. GORKHA BHARTI DEPOT(GORKHA RECRUITING DEPOT)KUNARGHAT, GTORAKHPUR (UP) THRU THE OFFICER-IN-CHARGE RECORDS(GORKHAS) DEPUTY DIRECTOR GENERAL OF RECRUITING GORKHAS/DIRECTOR RECRUITING, GORKHA RECRUITING DEPOT, KUNARGHAT, GORAKHPUR (UP)…………………………………………………………………..(PETITIONERS) Versus MITHILESH PRASAD SINHA, SON OF LATE BIDYA PRASAD, EX-DAFTARI (RETIRED), GORKHA BHARTI DEPOT (GORKHA RECRUITING DEOPT), KUNARGHAT, GORAKHPUR, U.P. AT PRESENT RESIDENT OF HOUSE OF SRI SANJAY TIWARY, HOUSE NO.231, ROAD NO.310 AT CHITRAKOOT NAGAR, P.S.DIGHA, TOWN AND DISTRICT PATNA…………………………………………………………………..(Respondents) ----------- For the Petitioner : Mr. Sandeep Kumar P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA Shiva Kirti Singh & Birendra Prasad Verma, J.J. Heard the parties and perused the impugned 2 order of the Central Administrative Tribunal dated 5th January, 2007. 2. By that order O.A. No. 858/04 preferred by the Respondent, Mithilesh Prasad Sinha has been allowed with a direction to the Respondent No.8 before the Tribunal to hear the applicant in respect of grant of 2nd ACP and payment of enhanced pay with arrears and if it is found that payment is still due, the same should be made otherwise details should be furnished how the arrears have been paid. 3. Through this writ petition a dispute has been raised in respect of basic fact as to whether the concerned employee, the Respondent was granted ACP or not. It is that case of the petitioners before us that in fact the Screening Committee never recommended for grant of the claimed benefit of ACP and unfortunately this fact was not investigated by Tribunal and on the basis of two letters, one dated 12.05.2003 and the other dated 20.09.2006, it was presumed that such benefit of ACP has already been allowed and even payments have been made at least in part. It is the categorical case of the petitioners that those letters whereby authorities who had no role in grant of ACP and they laboured under confusion of facts. The minutes of the Screening Committee has been annexed as Annexure-5 to the writ petition to show that originally the recommendations of the Committee in respect of Respondent employee were kept in sealed cover but ultimately it has been noted that he was not recommended for grant of ACP benefits. 4. A perusal of the impugned order of the Tribunal shows that before the Tribunal the issue of grant of ACP was not raised and considered and on account of two letters noticed above the counsel for the petitioners i.e., the authorities took an erroneous stand that the grant of ACP benefits is admitted and that even payments have been made in part. 5. From the records, it appears that the petitioners filed a review petition 3 before the Tribunal, a copy whereof is annexed as Annexure-7. In that petition the aforesaid averment noticed by this Court were pleaded and a stand was taken that the two letters in question had been issued under misconception of facts and the first letter dated 12th May, 2003 was only a communication between the authorities which was not approved or accepted by the concerned higher authorities and hence that cannot be treated as an admission that ACP benefits were granted to the Respondents employee. From Annexure-8, it appears that at the time of arguments the counsel for the respondent-authorities before the Tribunal withdrew the review application reserving the right to move the Hon’ble High Court at Patna and that permission was granted. It has been submitted on behalf of the petitioners that in view of the said right reserved, the facts pleaded in the review petition are relevant facts to be considered by this Court for assailing the impugned order of Tribunal. In paragraph-36 of the writ petition a further stand has been taken that review application was disposed as withdrawn on 21.2.2008 but the same was withdrawn by the counsel without any authority from the petitioners. 6. Without going into the controversy relating to withdrawal of the review petition, on considering the submissions and after going through the contents of the impugned order, we find that the real controversy between the parties has not been raised and decided by the learned Tribunal whereas interest of justice requires an enquiry into the basic facts including the issue whether Screening Committee had recommended for grant of ACP benefits to the respondent employee or not and whether any order by the competent authority was issued granting benefits to him or not. 7. The respondent, if so advised, he may modify his issue before the Tribunal and seek appropriate relief challenging the denial of ACP benefits to him if it 4 is found that ACP benefits has in fact not been allowed. In view of the aforesaid discussions, the impugned order is set aside but the matter is again remitted to learned Tribunal for reconsideration and for fresh decision in the light of observations made above. Patna High Court Dated the 8th of July, 2010 AFR/ Md. Perwez Alam (Shiva Kirti Singh, J.) (Birendra Prasad Verma,J.)