IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- WRIT CONTEMPT No. 107 of 2008 CHETA RAM (EX HEV NO 13612706Y ) V/S VIJAY SINGH & ORS Mr. SK NANDA, for the appellant / petitioner Mr. KULDEEP MATHUR, for the respondent Date of Order : 19.11.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER Heard learned counsel for the parties. The Division Bench by judgment dated 19.7.2007 allowed the writ petition of the petitioner, and while upholding the finding of guilty, only interfered with the quantum of punishment, and directed, that instead of punishment of dismissal, or removal, on the totality of circumstances, the petitioner be discharged from service, with effect from the date the order of punishment was passed. Consequences of discharge order were also directed to take place. The present contempt petition has been filed on 15.4.2008, contending inter-alia, that despite the above order of 19.7.2007, and despite the letter of the petitioner, the order has not been complied with, and the respondents have no intention either, to comply with it. The contempt petition came up before this Court on 29.4.2008, on which date notices were ordered to be issued. A reply has been filed on behalf of the contemnors, pleading that the order has been complied with, inasmuch as, the Southern Headquarter Command, vide order dated 22.4.2008 has remitted the sentence of dismissal, and directed that the petitioner be deemed to have discharged from services with effect from the day, his dismissal took place, copy of the order has been produced as Annex.R/1 & R/2 respectively. It was also pleaded, that the petitioner has been sent pension documents, for processing his case for grant of pensionary benefits vide communication dated 29.4.2008, which has been produced as Annex.R/3. Then a rejoinder has been filed by the petitioner, contending inter-alia that the contempt petition was filed almost after 9 months of the passing of the order, and that, it was only after the Hon'ble Court was pleased to issue notice of the contempt petition, that the respondents realised the consequences, and started initiating action, and sent the letter dated 29.4.2008. In our view, this pleading is not correct, for the simple reason, that the order, Annex.R/1 was passed on 22.4.2008, and Annex.R/3 was sent on 29.4.2008, while the notice of 2 the contempt petition were even ordered to be issued only on 29.4.2008, therefore, it cannot be said, that after issuance of the contempt notices, the respondents realised the consequences, and started initiating action. Be that as it may. It is then alleged in para 5, that the petitioner was Hawaldar at the time of dismissal, who had not been awarded any such punishment of reduction to the rank of Sepoy, while the documents have been initiated for grant of pension as a Sepoy, and as a consequence of the same (granting pension for the post of Sepoy), the PPO has been issued, which is in flagrant violation of the Court's order dated 19.7.2007, and thus they have not complied with the order. A reply to this rejoinder has further been filed, pleading, that against the petitioner proceedings for Summary Court Martial were held, and the Court Martial found him guilty of the charges, and awarded sentence (a) to be reduced to the ranks, and (b) to be dismissed from service, and it is pleaded, that feeling aggrieved with the out come of the Summary Court Martial, the writ petition was filed, which was dismissed. Then appeal was filed, which has been allowed on 19.7.2007. Then it is pleaded that the Division Bench has not set aside the whole Summary Court Martial proceedings, but only directed dismissal to be converted into discharge. Thus, it is pleaded that the order has been complied with. Then an additional affidavit 3 has been filed by the contemnors, enclosing the copy of punishment order as Annex.CP-1, and the regulations for Army Para 131, Army Act Sec. 71(f), Note 10 clause (f)(b) have been invoked, then Manual of Military Law at page 428 has also been pressed into service, about the mode of recording punishment, and thus it is pleaded that action of the respondents is correct. Thus, this much is not in dispute, that the respondents have treated the dismissal to be discharge, and accordingly, the pension has been ordered to be paid. Now the controversy is sought to be raised, to the effect, that the petitioner should have been given pension on the rank of Naik instead of that of Sepoy. In this regard, we have gone through the pleadings of the writ petition, and the whole trust of the writ petition is, that the order of punishment was not promulgated, or pronounced, and that the proceedings, which were closed on 22.12.1995 did not contain any order of punishment. Then on 23.12.1995 he was verbally told, as pleaded in para 26 of the writ petition, that he had been de-stripped on the rank of Havaldar, and that he has been dismissed from service. The petitioner has not produced the order of punishment, obviously because he is claiming that order of punishment was not pronounced, or promulgated. The writ petition was dismissed summarily. Then in appeal, no 4 reply of the writ petition has been filed, rather a reply to the appeal has been filed, which is pressed into service by the learned counsel for the petitioner with all force, and specially para 7 of the reply has been pressed into service, wherein it is pleaded, that the Summary Court Martial sentenced the appellant to “Reduction to the rank of Naik and dismissal from service”. In this para, it is pleaded that the sentence was promulgated at 1100 hrs. on 23.12.1995, and it was due to clerical error the date of promulgation was recorded as 22.12.1995. The overall situation does give an impression, that the petitioner has sought to make out much capital out of accidental error in the date of promulgation, having been mentioned as 22.12.1995, instead of it being mentioned as 23.12.1995, and has projected a big boggy, to the effect, that on 22.12.1995 at 4.30 PM, the Court Martial was closed, and sentence was not promulgated, then how it be promulgated at 1100 hrs. on 22.12.1995. Likewise, the thrust of the writ petition was on the basis of procedural errors in the Court Martial proceedings, and so on. It is contended by learned counsel for the contemnors before us, that when the appeal was argued, since punishment order was not produced before the Court, the Division Bench desired the respondents to make available for perusal the record, which was accordingly delivered to the Court, which remained with the Court for 5 more than a month, or so, and after perusing that, the judgment dated 19.7.2007 has been passed. We find from the order-sheet dated 13.3.2007, of the file of the Spl. App. that it is recorded therein, that after hearing counsel for sometime, the Court felt the desirability of looking into the record of the Court Martial proceedings, and the counsel assured to obtain the record, and make it available. Unfortunately, as the things have happened, there are no order-sheets in the Division Bench file after this 13.3.2007, except the office order- sheet dated 16.3.2007, while the judgment of the Division Bench is dated 19.7.2007. We are left to reasonably infer, that during this interregnum period, the matter was listed, and record was made available to the Court. Then arguments were heard, and thereafter, judgment was passed, even though, no order-sheets are available in this regard. Be that as it may. Now with the additional affidavit, the order of punishment has been produced as Annex.CP-1, as noticed above, which provides the two punishments, being (a) to be reduced to the ranks, and (b) to be dismissed from service. It is not clear, as to how the averments happened to be made in para 7 of the reply, but then a look at Annex.CP-1 does obviously show that the reply appears to have been filed without looking into the record, and we are not 6 inclined to ignore the punishment order, Annex.CP-1, more so when today, even the original punishment order, and proceedings, being of Summarily Court Martial, having been made available for hour perusal. After dictating to the above extent, learned counsel for the respondent prayed for time to seek some more instructions. Put up on 15.12.2008. On 15.12.2008 when the matter was listed, Mr. Kuldeep Mathur has suddenly gone out of station, therefore the matter was adjourned to be listed in January, 2009. However, thereafter the matter has come up today, the 16th Feb. 2009. During this time two affidavits have been filed on behalf of the respondents; one being second additional affidavit of Colonel Vijayant Yadav, enclosing one document marked as Annexure CP/5, and also enclosing another affidavit of Colonel B. Chakraverty. Copies of these affidavits have been given to the learned counsel for the petitioner on 19.1.2009. We confirmed from the learned counsel for the petitioner about his having received copies of the affidavits, who confirmed it. Then, repeatedly and pointedly asked him, as to whether he would like to file any reply, or affidavit, or produce any document to controvert the materials produced by the contemnors, but the learned counsel categorically declined, by contending 7 it to be not necessary. Thereupon both the learned counsel were again heard on the two affidavits, and the document produced along with it, and we have again gone through the original record, which was made available for our perusal on 19.11.2008, so also today as well. The original punishment order, copy whereof has been produced as Annexure CP/1, has been perused by us on the record also, and on the face of it, we do not find that the petitioner was imposed punishment of reduction to the rank of Nayak. Obviously imposition of punishment of dismissal from service is no more res-integra. The order clearly shows, that punishment of “to be reduced to the ranks...” was passed in addition to the punishment of dismissal from service. As noticed above, it was the case of the petitioner that he was promised to be let off, and that he would be reduced to the rank of Nayak, and his signatures were obtained on some papers duly counter signed by colonel Sheonan Singh, which he has produced as Annexure-P-5, and then in para-17 it was alleged, that he has been imposed punishment of reduction to the rank of Nayak. Undisputedly he has pleaded guilty to the charges, and has then pleaded that neither any finding, nor any sentence was ever pronounced in the open court, and was ante-dated promulgated, and without actual award of 8 sentence of punishment, he has been dismissed from service. A combined look at Annexure-7, the alleged punishment order, and Annexure CP/1, makes it clear, that Annexure-7 has no semblance of reliability, inasmuch as in this even the alleged punishment of reduction to the rank of Nayak is also not mentioned; While Annexure CP/1 clearly shows, that both the punishments have been imposed upon him, being to be reduced to the ranks, and to be dismissed from service. As observed above, much stress was laid by the learned counsel for the petitioner on para-7 of the reply. To this it was contended by the learned counsel for the contemnors other day, that the reply was submitted without properly looking at the record. In the affidavit filed now, being affidavit of Shri B. Chakravarty, who happens to be the deponent of the affidavit filed in support of the reply, has clearly deposed, that the reply, as well as the affidavit, were signed, and inadvertently some contrary facts were mentioned in regard to the sentence awarded to the appellant, being at para-4 at page-4, and para-7 at page-8 of the reply. He has also deposed, that the appellant was awarded sentence of (a) to be reduced to the ranks and; (b) to be dismissed from service, but due to inadvertent 9 mistake and oversight of the deponent, contrary facts were mentioned, for which he sought unconditional apology. Then, Annexure CP/5 does show, that it is written on 25.12.1995 itself, and is the application for remission of sentence awarded by the summary court martial, and therein it is mentioned, that he was awarded the sentence of reduction to the ranks, and dismissal from service. Learned counsel for the petitioner contended that he does not dispute the integrity of the deponent of the affidavits, but at the same time submitted, that a naked eye look at Annexure CP/5 shows, that it is a manipulated document, inasmuch as the petitioner has already pleaded in the writ petition, that signatures were obtained on blank papers, and from perusal of Annexure CP/5 it is clear, that the three paras are closely typed in single space, and then after leaving good amount of space, the words “yours faithfully” has been typed, and then after again leaving good amount of space, his signatures have purported to appear. Likewise address is mentioned to be of Unit, while he has been dismissed on 22.12 itself, and there was no question of his being in Unit. In the next place he has submitted that under Sec. 164 only one petition lay, and the petitioner had filed the petition Annexure-9, annexed with the writ petition, as petition under Section 164, which was rejected by the respondents vide Annexure-13, 10 while if this Annexure-CP5 had already been filed, Annexure-9 would not have been entertained, even solely on this ground, and significantly the respondents had not reacted on Annexure CP/5. Since an argument was raised, and plea had been taken, that Annexure P-7 was clandestinely removed by the petitioner, and it is a fabricated document. Replying that, it was contended by the learned counsel for the petitioner, that this was never clandestinely removed, rather it was in response to Annexure-6, that the petitioner was supplied this copy, and the petitioner has produced Annex.7, as was supplied to him. It was also submitted that under the Army Rules list of punishments have been prescribed, starting from death sentence to censure or conveyance of displeasure, in descending order, and obviously therefore, if things were as claimed by the respondents, even in Annexure CP-1 more severe punishment would have been mentioned first, and lighter punishment would have been mentioned later, but the sequence in which the punishments appear shows, that it has been subsequently prepared. Replying the submissions, learned counsel for the contemnor submitted, that since the petitioner has willfully not chosen to controvert the affidavits and the documents, and has expressed faith in the deponents, all these submissions, as made, are not open to be made by him. It was also submitted that in the matter of clandestine 11 removal, (of Annexure P-7) departmental proceedings were held against the delinquent, and delinquent has been punished also. The record of the respondents in this regard was also shown in original to us, and we find it to be so. Then, replying the contentions regarding Annexure CP-5, learned counsel for contemnors invited our attention to the original record, containing yet another subsequent communication of the petitioner, being dt. 2.1.1996, available at page-24 of the file, mentioning the subject to be “In connection with Petition for Remission of Sentence awarded by SCM under Section 164(1) Petition purported to be dated 25 Dec' 95”. In this communication the petitioner has mentioned, that the friend of the accused detailed for the purpose of defending, instead of assisting him and guiding him, in fact got some of the papers signed by him even before the commencement of the so called trial, including one paper typed on a computer, the contents of which were not made known, but was told, that it is concerning his pensionary benefits for the rank of Naik, since the petitioner was reduced to the rank of Naik, and under the misconception, he signed some papers interalia the petition purported to have been dated 25 Dec' 95, and then prayed to keep the said petition, purported to have been dated 25 Dec' 95, in abeyance, and to kindly link up with the petition being sent shortly. This clearly shows that Annexure CP/5 was sent by the petitioner, and it was in view of this subsequent communication dt. 2.1.1996, that 12 the same was neither responded, nor was required to be acted upon. It was also submitted that this Court cannot draw inference against the genuineness of the documents, relying upon the grounds projected by the learned counsel for the petitioner, in absence of controversion of the affidavits filed on behalf of the respondents. Regarding address, it was submitted, that the petitioner has not disclosed as to when he was relieved, and therefore, as on 25.12.1995 he could very well have given his address of the Unit. We may at this place observe, that on our pointedly asking, learned counsel for the petitioner gave out, that he does not have the date as to when the petitioner was actually relieved, nor has he produced any such letter. It was also submitted by the learned counsel for the respondent, that in any case the Division Bench had only interfered with the order of dismissal, and modified it to be treated as discharge, which had been given duly effect to, and if the petitioner feels, that apart from the discharge, any other punishment is being wrongly construed by the respondents, the petitioner may have his remedies, if available under law, by initiating independent litigation, inasmuch as even according to the petitioner he was reduced in ranks. It is contended that the controversy, 13 according to the petitioner is, only as to whether he was reduced to the rank of Nayak, or he was ordered to be reduced to ranks. This had never been a subject matter of adjudication in the earlier litigation, and when the respondents have faithfully and earnestly treated the petitioner to have been discharged from service, instead of having been dismissed, w.e.f. the date of order of dismissal, no contempt can be said to have been made out, and it deserves to be dismissed. We have considered the submissions, and have gone through the record. Consideration of record on our part, and appreciation of material on record is already reflected in various observations made by us from time to time in the foregoing part of this order. We need not elucidate our order further, and give any finding, this way or that way, as to whether the punishment imposed was of reduction of rank to Nayak, or was of reduction to the ranks. There is one more reason, that Annexure P-7 purports to be not containing any punishment, while Annexure CP-1 does contain both the punishments, while even according to the petitioner, he was told to be punished with reduction to the rank of Nayak, and thus, Annexure P-7, as annexed with the petition can not be said to be, as was received by him. In that view of the matter, more so on the face of Annexure CP-5, and the communication dt. 2.1.1996, as shown to us, we do not stand to advised to comment on this aspect, lest 14 it might adversely affect rights of the either of the parties. It is for the petitioner to agitate the issue in accordance with law before appropriate forum, if otherwise entitled to do so. We make it further clear, that if the petitioner is not otherwise entitled to assail the same, this order shall not be construed to be granting any permission to the petitioner to that effect. However, so far as contempt proceeding is concerned, the Division Bench had only interfered with the punishment order, by altering it from dismissal to discharge from service, and the respondents have so treated the petitioner to have been discharged from service w.e.f. the date of passing of the order of dismissal, which fact is not in dispute. In that view of the matter, in our view, it cannot be said that respondents have committed any contempt. The contempt petition is, therefore, dismissed. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. 16.2.2009 /Sushil/ 15