* THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION NO: 18110 OF 1998 % 12.06.2007 # Subedar Kashmira Singh ….. Petitioner Vs. $ The Chief of Army Staff, Army Head Quarter, New Delhi and others. ….Respondents. ! Counsel for the Petitioner: Sri M. Ravindranath Reddy, ^ Counsel for the Respondents: Sri M. Ratna Reddy, SC for Central Government. < Gist: >Head Note ? Citations: [1] AIR 1990 SC 1661 2 2006(2) SCC 652 3 (2001)2 SCC 549 4 2006(2) ALD 1 (FB) 5 (1999) 4 SCC 450 6 (1967) 2 SCR 286) 7 (1998) 8 SCC 685 8 (1992) 2 SCC 598 9 (1972) 3 SCC 432 10 (2006) 4 SCC 322 11 1994(1) SCC 44 12 2002(2) SCC 475 THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO. 18110 OF 1998 ORDER: This is a tale of intrigue one rarely associates with the Armed Forces. But for this Court’s intervention, the illustrious career, spanning two decades and a half, of an Army Officer would have been derailed by the machinations of another. That the officer should be forced to repeatedly knock the portals of the High Court, for the honour and recognition which he richly deserves, and for the monetary benefits which he is entitled as of right, is, indeed, a matter of regret. The petitioner, while holding the post of Senior Junior Commissioned Officer (SJCO) of the 6th Battery in the II Training Regiment at Hyderabad, was also officiating as a Subedar Major for a period of five months before Subedar Major Waman Akde took charge of the said post on 21.1.1987. The petitioner was transferred to Allahabad on 16.2.1987 and was required to report thereat on or before 28.4.1987. Subedar Major Waman Akde, after assuming office, took a hostile attitude against the petitioner and on 03.03.1987, while proceeding on leave, handed over charge, of the post of Subedar Major, to a person junior to the petitioner, though the petitioner was the senior most in the regiment. Alleging that he was illegally using an electric heater, the petitioner’s house was raided during his absence and the quarters allotted to him was directed to be vacated. Only on his representation, was the quarters subsequently restored to him. While matters stood thus, Subedar Major Waman Akde lodged a complaint to the Commanding Officer alleging that the petitioner was responsible for burning of certain kits and personal items belonging to the new recruits of the 6th Battery of II Training Regiment, Artillery Centre, Hyderabad at 6.30 am on 2.4.1987. The Commanding Officer directed Sri D.P. Chakraborty, the Battery Commander, to investigate into the matter and submit a report. Sri D.P. Chakraborty, after investigation, reported that there was no truth in the complaint despite which the Commanding Officer ordered a Court of Inquiry under Rule 177 of the Army Rules. The Court of Enquiry was conducted by Major V.M. Wadhawan. On the basis of the report of Major V.M. Wadhawan, the Commanding Officer directed Sri D.P. Chakraborty, the Battery Commander to march the petitioner under Rule 22 of the Army Rules. The petitioner requested for the option of trial by General Court Martial, (herein after referred to as G.C.M.), and submitted the names of the witnesses to be secured. In the meanwhile the Departmental Promotion Board, on 4.8.1987, approved the petitioner’s name for promotion to the rank of Subedar Major. The petitioner was, however, denied promotion on the ground that disciplinary proceedings were pending against him. Questioning the action of the respondents, in refusing to promote him to the post of Subedar Major, the petitioner filed W.P.3777 of 1988. On 4.8.1988, a charge sheet was issued to the petitioner. On 20.6.1988 the Promotion Board again approved his name for promotion to the post of Subedar Major, despite which he was not promoted in view of the pendency of disciplinary proceedings. On 2.8.1988, the G.C.M. was convened and, based on the objections raised by the petitioner at the threshold itself, the G.C.M. was dissolved. On 7.11.1988, the same Commanding Officer again ordered a de-novo enquiry and directed the petitioner to submit his list of defence witnesses. On 9.3.1988 the petitioner filed W.P. No. 18200 of 1988 questioning the action of the Commanding Officer in ordering a de-novo enquiry. On 14.6.1989 the Army Promotion Board again approved the name of the petitioner for promotion to the post of Subedar Major. The petitioner was, however, not promoted in view of the pendency of disciplinary proceedings. W.P. No. 3777 of 1988 and W.P. No. 18200 of 1988 were dismissed by order dated 21.10.1989. On 31.10.1989, the petitioner was retired from service. However, on the same day, he was placed under close arrest and the summary of evidence was recorded. On 28.3.1990 the G.C.M. was convened and a similar objection, as was raised earlier, was raised by the petitioner. Eventually the G.C.M. was closed on 31.03.1990 and it recorded its findings holding the petitioner guilty of the charge. The petitioner was imposed the sentence of reduction in seniority by one year in the rank of Subedar and was administered a severe reprimand. The General Officer Commanding In Chief, Headquarters, Southern Command, Pune, in his order dated 16.08.1990, confirmed the sentence. Aggrieved thereby the petitioner filed W.P. No. 4519 of 1991 to quash the order of the 3rd respondent dated 16.8.1990 confirming the findings and punishment imposed by the G.C.M. In its order dated 18.03.1997, this Court noted that the petitioner had joined the Army as a Sepoy in 1961, had served honourably without any blemish in almost every place viz., NEFA, West Bengal, Punjab, Jammu and Kashmir, Assam and Sikkim, had participated in major operations like ‘Ablaze’, ‘Riddle’, ‘Cactus’ and ‘Savage’, that he was awarded nine medals including the “Paschim Star”, the “Samara Seva Star”, the “Himalaya Seva Star” and the “NEFA Star”, that he had got five promotions during his 25 years of service and, even when disciplinary proceedings were pending against him, the Army Promotion Board had thrice recommended his name for promotion to the post of Subedar Major. This Court also noted that the incident, alleged to have taken place on 2.4.1987, was nearly ten years prior to the order being passed by this Court, that the petitioner had already undergone processorial torture and irreversible prejudice, that he was deprived of his personal liberty even after his retirement, that his track service record, before the alleged misconduct, was unblemished and that it had come out in the evidence of the witnesses for the prosecution that the petitioner was a disciplined and strict officer. This Court observed that when the petitioner inspected the barracks on 2.4.1987, after seeing the disorderly kit lay-out, he being a disciplined officer may have expressed his displeasure asking the sentry on duty to throw out the scattered articles, that the earlier allegation of destroying the articles was given up in the charge sheet dated 9.3.1990 and the mere allegation that the petitioner had shouted at the sentry on duty to throw out, and destroy, the articles in the context of an understandable righteous displeasure, without the further allegation of the sentry having translated the verbal direction into an act, did not persuade this court to reserve liberty to the respondents to hold a de-novo enquiry. This Court further held that a careful peep, into the evidence of the prosecution witnesses, indicated the unusual part played by Subedar Major Waman Akde in launching prosecution against the petitioner and that even P.Ws.1 to 3 had deposed that it was Subedar Maj Waman Akde who had called them on 3.4.1987 and had made enquiries about the incident. This Court noted the deposition of P.W.4 that, on 3.4.1987, Subedar Maj Waman Akde had called him to his office and had asked him to state that the items collected from the barracks had been burnt, that he had refused to oblige Sub.Maj Waman Akde and that D.W.2, Lt.Col. (T.S) D.P. Chakraborthy, who was the officer superior to the petitioner at the relevant time, had stated in his evidence that, before the alleged incident, the petitioner had reported to him twice that Sub.Maj Waman Akde was trying to implicate him in a false case. This Court also noted that, though Sub.Maj Waman Akde was not the petitioner’s superior officer in the same Battery at the relevant time, the extraordinary and unusual interest and concern shown by him to call P.Ws.1 to 4 and indicating to them, in the context of the earlier reports made by the petitioner to Lt Col. D.P. Chakraborthy, prima facie indicated that the relationship between the petitioner and Sub.Maj. Waman Akde was strained. This Court observed that the allegations made by the petitioner, that the proceedings came to be initiated at the behest of Sub.Maj. Waman Akde to wreak vengeance for certain personal reasons set out in the affidavit, seemed to be correct. This Court also noted that, despite Lt. Col. D.P. Chakraborthy reporting that there was no truth in the complaint, the Commanding Officer had ordered a Court of Enquiry culminating in the constitution of the G.C.M and, while the G.C.M. in its earlier proceedings dated 28.7.1988 had upheld the objections raised by the petitioner and had dissolved the G.C.M, the petitioner was again charge sheeted culminating in passing of the impugned order and the sentence. This Court noted that there was a consistent and determined effort on the part of the Commanding Officer not to give up but to proceed against the petitioner, even after his retirement, perhaps to appease Sub.Maj.Waman Akde. This Court held that interest of justice, and fairness in action, warranted giving a quietus to the decade old controversy and that subjecting the petitioner to one more enquiry on a truncated charge would not serve any purpose. This court quashed the order of the 3rd respondent dated 16.08.1990 and held that, since the petitioner had succeeded in the enquiry by virtue of the order of the Court, he was entitled to be promoted notionally to higher posts and to the pecuniary and other benefits flowing from such notional promotion or promotions. Aggrieved by the order of the learned Single Judge, in W.P. No. 4519 of 1991 dated 18.3.1997, Writ Appeal No.719 of 1997 was filed and, by order dated 23.7.1997, the Division Bench dismissed the Writ Appeal modifying the order of the learned Single Judge. Since the order of this Court was not implemented, a legal notice dated 3.2.1998 was issued and consequently the Commandant Artillery Records, Nasik, issued proceedings dated 20.2.1998 granting pensionary benefits to the petitioner in the post of Subedar Major. The petitioner filed this writ petition claiming several reliefs. He also filed C.C. No. 427 of 1998. While several reliefs are sought for in this writ petition, Sri M. Ravindranath Reddy, learned Counsel for the petitioner, would confine his submissions to grant of relief of payment of salary to the petitioner, as honorary lieutenant from 15.8.1991 to 25.1.1992, as honorary captain for the period from 26.1.1992 to 29.2.1992 and for pensionary benefits in the rank of honorary captain. The affidavits filed, from time to time, both by the petitioner and the respondents have been examined and taken note of. The elaborate oral submissions of Sri M. Ravindranath Reddy, learned counsel for the petitioner and Sri M. Ratna Reddy, learned Central Government Standing Counsel and their written submissions have been taken into consideration. Sri M. Ravindranath Reddy, learned counsel for the petitioner, would submit that if the petitioner was, in the normal course, promoted as a Subedar Major, he would have been entitled, under Regulation 163, to remain in service till 01.01.1992. Learned counsel would submit that though the petitioner’s case was considered and approved for promotion to the post of Subedar Major, by the Promotion Board, on three different occasions on 6.5.1987, 22.6.1988 and 14.6.1989, he was not promoted on account of the pendency of disciplinary proceedings initiated against him in the month of April, 1987. Learned counsel would submit that Army Order 20 of 1981 disentitled an employee from being promoted to a higher rank when disciplinary proceedings were pending against him. Learned counsel would submit that as a consequence of the judgment in W.P. No. 4519 of 1991, as affirmed in W.A. No. 719 of 1997, and the earlier order of this Court in W.P. No. 3777 of 1988, the petitioner was entitled to all consequential benefits which were denied to him merely on account of pendency of disciplinary proceedings. Learned counsel would submit that, even otherwise, since this Court in W.P. No. 4519 of 1991 had held that the very initiation of disciplinary proceedings was illegal, and had not given liberty to the respondents to initiate further enquiry, the consequence thereof was that the petitioner was entitled to all consequential reliefs and, inasmuch as the petitioner was denied the consequential relief of being considered for conferment of the honourary rank of lieutenant/captain, and for payment of salary and fixation of pension in the said ranks, failure on the part of the respondents to confer on him the said benefits necessitated his having to invoke the jurisdiction of this Court by way of the present writ petition. Learned counsel would submit that, vide proceedings dated 20.02.1998, the respondents had held that the petitioner was entitled only to fixation of his salary in the rank of subedar major, and it was only in view of such an order did the necessity of filing the present writ petition arise and that the consequence of the earlier orders of this Court, in W.P. No. 3777 of 1988 and W.P. No. 4519 of 1991, was that the petitioner was entitled to conferment of the honorary rank of lieutenant and captain and for payment of salary in the said posts from the date of conferment and for fixation of pension and other pensionary benefits accordingly. Learned counsel would submit that the contention of the respondents, that the case of the petitioner was considered for conferment of the honorary rank of lieutenant in the year 1989, was without any basis in as much as Army Order 20 of 1981 precluded the respondents from conferring promotion on an employee during the pendency of disciplinary proceedings. Learned counsel would place reliance on Paragraph 29 of the guide- lines dated 20.8.1982 to submit that, even if the name of the petitioner had been forwarded, he could not have been considered for conferment of the honourary ranks in view of the pendency of disciplinary proceedings instituted against him. Learned counsel would also rely on the ‘Form of recommendation’, prescribed in Paragraph 24(a) of the 1982 Regulations, which requires the immediate Commanding Officer to certify whether or not the incumbent, whose case has been recommended for conferment of honourary rank, is involved in a disciplinary case. Learned counsel would also place reliance on the letter of the 5th respondent dated 28.6.1988, more particularly Paragraph 3(d) thereof, to submit that the said certificate is required to be accompanied by other documents and that, in compliance thereof, a certificate dated 30.7.1988 was, in fact, sent. Learned counsel would submit that, since marks are required to be awarded for various aspects for determining whether the incumbent should be considered for conferment of the honourary ranks of lieutenant/captain, pendency of disciplinary proceedings would affect the marks to be awarded and it is with a view to avoid this contingency that the rules provide that a person involved in disciplinary proceedings should not be recommended for conferment of these honourary ranks. Learned counsel would also refer to the counter affidavit filed in W.P. No. 3777 of 1988 wherein the respondents had stated that, if the petitioner was promoted during the pendency of disciplinary proceedings, it would affect discipline in military service. Learned counsel would submit that if such was the case for promotion to the post of Subedar Major, the respondents could not have considered the petitioner’s case for conferment of the honourary rank of lieutenant and captain. Learned counsel would also refer to paragraphs 3 of the 1982 Regulations to submit that, the conditions prescribed therein required that, in none of the Annual Confidential Reports, (hereinafter referred to as ACRs), for the previous five years, the grading should be ‘below average’, and that, in case an employee had an adverse ACR in any one of the five years, the question of his case being recommended for conferment of honourary rank did not arise. Learned counsel would also refer to Clause 3(d), of the 1982 Regulations, to submit that, since the petitioner had an adverse entry in his ACR for the year 1987, which was within two years of initiation of the recommendation for conferment of the honourary rank of lieutenant in the year 1989, the petitioner was ineligible for being considered for conferment of the honorary rank. Learned counsel would submit that the adverse remark in the ACR for the year 1987 was made in the year 1988, as disciplinary proceedings had been initiated against the petitioner in April, 1987 and that, on a statutory complaint being filed by the petitioner against the adverse remark, the same was set aside by the Chief of Army Staff whose order was communicated to the petitioner vide proceedings dated 14.2.1990. Learned counsel would submit that, since the adverse remarks were set aside only in the year 1990 and were pending in the year 1989, the question of the petitioner’s case being considered for conferment of honorary rank, in accordance with the rules, in the year 1989 did not arise. Learned counsel would also point out that, in view of the pendency of disciplinary proceedings, no ACRs were prepared in the year 1988 and that the petitioner had only four ACRs by the year 1989 as against the required five ACRs. Learned counsel would also refer to the correspondence in this regard to submit that there was lack of clarity among the respondents whether or not the petitioner’s case should be considered for conferment of these honorary ranks in view of the pendency of disciplinary proceedings, that all the aforesaid facts would establish that the petitioner’s case could neither have been nor was it considered for conferment of the honorary rank of lieutenant in the year 1989 and that, in any event, even if it was presumed that his case was considered, since such consideration was contrary to the 1982 Regulations, it must be deemed that there was no such consideration. Learned counsel would submit that, in view of the Paragraph 3 of the guidelines dated 20.8.1982, the petitioner was entitled to be considered for conferment of the honourary ranks of lieutenant and captain only in his last year of service in 1991, and not in the year 1989, and as such the alleged consideration in the year 1989 was of no consequence. Learned counsel submits that considering the petitioner’s case in the year 1991 would also have entitled him for more marks and the contention of the respondents, that his case was considered in 1989 and he was not conferred the honourary rank of lieutenant, in view of his low marks, necessitated rejection. Learned counsel would submit that the respondents, in their first counter filed in the present writ petition on 17.8.1998, had contended that the petitioner was low in merit and that his name was not recommended. Thereafter, the petitioner had filed letter dated 25.11.1998, under Rule 15 of the Writ Rules, 1977, and had also filed his reply affidavit in December, 1988 denying the aforesaid averments in the counter affidavit of the respondents. In their additional counter affidavits dated 4.3.1999 and 8.7.2000 the respondents, placing reliance on the guide-lines for destruction of records, had contended that the records had already been destroyed. Learned counsel would contend that if, indeed, the records had been destroyed even prior to the present writ petition being filed there was no basis for the respondents to come to the conclusion that the petitioner’s case was not recommended for conferment of the honorary rank as he was low in merit. Learned counsel would contend that the submission made later across the bar, that the very fact that the petitioner was not recommended for conferment of the honorary rank of lieutenant would necessitate an inference being drawn that he was low in merit, did not merit acceptance. Learned counsel would contend that the entire effort of the respondents is to hoodwink the Court and defeat the rights of the petitioner by hook or crook. Learned counsel would also dispute the respondents’ contention that the records were destroyed as per the prescribed Regulations. He places reliance on para 592 to 595 of the Army Regulations, 1987 to submit that an elaborate procedure has been prescribed therein for destruction of the records, that a Board consisting of three members is required to be constituted, including an officer of the unit whose records are sought to be destroyed, that the Board is first required to withdraw for preservation the documents which are likely to be of some value, that a recommendation has to be made, thereafter, to the Brigadier/Sub-Area Commander for further processing of the documents to be destroyed and that final orders are issued thereafter for disposal of the said documents ensuring that no documents, which may be of interest from various points of view, are destroyed. Learned counsel would also place reliance on sub- clauses (1) to (5) of the Note given under Para 592 which requires certain records to be retained permanently, to Clauses (7) and (16) which require retention of certain records for a period of 10 years and to Clause (15) whereunder certain records are to be retained for 5 years. According to the learned Counsel there is not even a gap of one year between various events in the present case and as such destruction of records by the respondents was in violation of Para 592 of the Regulations. Learned counsel would submit that the very fact that the petitioner had been thrice recommended for promotion to the post of Subedar Major, would show that he had an exemplary service record and that he was earlier denied promotion only on account of pendency of disciplinary proceedings. Learned counsel would submit that, even assuming that the petitioner’s case was considered for conferment of honorary rank in the year 1989, the said consideration, being contrary to the rules, was void, liable to be ignored and since the disciplinary proceedings was quashed by this Court, the petitioner was entitled for all consequential benefits which included his case being considered for conferment of the honourary rank of lieutenant and captain. According to the learned counsel since promotion to the post of Subedar Major is also required to be considered by the Promotion Board, there is no difference between promotion to higher posts, such as the post of Subedar Major, and conferment of honorary rank of lieutenant and captain, more so, since conferment of honorary rank is by way of awarding marks under the 1982 Regulations. Learned counsel would submit that, as a consequence of the orders of this Court, all benefits which accrued to the petitioner, during the period from when disciplinary proceedings were initiated in April, 1987 till 23.07.1997 when W.A. No. 719 of 1997 was dismissed, and which were denied to him on account of pendency of disciplinary proceedings and the punishment imposed, must be restituted/restored and, since it was only in their proceedings dated 20.2.1998 that the respondents had refused to extend several of the reliefs sought for, the cause action arose only on 20.02.1998 and not prior thereto. Learned counsel would submit that, within two months of the cause of action having arisen on 20.2.1998, the petitioner had filed C.C. No. 427 of 1998 on 6.4.1998, that the present writ petition was filed on 29.6.1998 within five months from the date on which the cause of action arose, and as such the petitioner was not guilty of laches. Learned counsel would submit that, since no employee is entitled to be considered either for promotion or for conferment of honorary ranks