IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 16 of 1999. Reserved on: 09.01.2009. Decided on: 24.02.2009. The Secretary, Defence to the Government of India, New Delhi (Union of India through its Secretary Defence). … Appellant. Versus Shri Sanjay Misra and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the Appellant : Mr. M.A. Khan, Central Government Counsel. For the Respondents : Mr. Bimal Gupta, Advocate for respondents No. 1(a) to 1(c) Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General for respondent No.2. Rajiv Sharma, J. This regular second appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Sirmour at Nahan, dated 15.1.1998 in appeal No.56-N/13 of 1995. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - Brief facts necessary for the adjudication of this regular second appeal are that the respondent/plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) filed a suit for declaration and mandatory injunction in the Court of Senior Sub-Judge, Sirmour at Nahan. The case of the plaintiff is that he joined the Indian Army on July 24, 1956 at Ambala Cantt. He was discharged from service in the month of November, 1971. He developed some mental ailment in the year 1970-71. He remained under treatment and was also confined in Model Central Jail at Nahan under Section 13 of the Lunacy Act. The suit was contested by the appellant/defendant (hereinafter referred to as “the defendant” for convenience sake). The suit was primarily contested by the defendant on the ground that the plaintiff had served the Army for 11 years and 46 days and his discharge from service was not on account of medical ground, but under Rule 13 Items (iii) and (v) of the Army Rules, 1954 as he was found unsuitable for further military service. He had incurred four red ink entries on four occasions. The suit was dismissed by the trial Court on 29.9.1995. The plaintiff preferred an appeal before the learned Additional District Judge, Sirmour at Nahan. The learned Additional District Judge, Sirmour allowed the appeal on 15.1.1998. This regular second appeal is preferred against the judgment passed on 15.1.1998 by the learned Additional District Judge, Sirmour at Nahan. The regular second appeal was admitted on the following substantial questions of law:- 1. Whether the learned Court below has mis-construed the provision of Section 4 of the Pension Act which debars civil suit? - 3 - 2. Whether the learned Court below has mis-construed the provision of Rule 13 (iii) & (iv) of Army Rules, 1954, and thereby holding that discharge was not just, proper and in accordance with law? 3. Whether the learned Appellate Court below has misconstrued the provision of law regarding filing of Civil Suit after a period of more than two decades. The same having being barred by limitation. 4. Whether the learned Appellate Court below has mis-construed and fell in error in holding that Dev Dutt Mishra is entitled to pension when he has not even completed minimum period of service entitling him to pensionary benefit. 5. Whether the learned Appellate Court below have completely ignored and brushed aside documentary and oral evidence so produced and Ex.DW1/A resulting in erroneous conclusion. 6. Whether the learned Appellate Court below has fallen in error and mis-construed the provision of Army Act and Rule in arriving at conclusion that the discharge of Dev Dutta Mishra was unjust and not proper. Shri M.A. Khan has strenuously argued that the judgment and decree passed by the learned Additional District Judge, Sirmour at Nahan dated 15.1.1998 is not sustainable in the eyes of law. He has prayed for restoration of the judgment and decree passed by the learned trial Court on 29.9.1995. Mr. Bimal Gupta has supported the judgment and decree passed by the Additional District Judge, Sirmour at Nahan. - 4 - I have heard the learned counsel for the parties and perused the record carefully. Since all the substantial questions of law are interconnected, they are being taken up together for adjudication to avoid repetition of discussion of evidence. The plaintiff had appeared as PW-2. He had deposed that he was enrolled in Army in the year 1956. He further deposed that at the time he was enrolled in the Army, he was hale and hearty. He suffered mental ailment in the year 1970. He was discharged on 10.11.1971. He was not apprised of the red entries recorded in his service records. He remained mentally ill till 1991. He remained under treatment with Doctor Virender Mohan with effect from 1980 onwards. He had issued a certificate mark PA. He also remained in Model Central Jail, Nahan. He has denied the suggestion that he was hale and hearty at the time when he was discharged from Army. He denied in his cross-examination that he was discharged due to administrative grounds. He has admitted that he was never admitted in mental hospital while serving in the Army. PW-1 is Shri Rafi-u- Din. He has deposed about the mental illness of plaintiff. PW-3 is one Kameshwar Kumar. He is Warden of Central Jail, Nahan. He has deposed that the plaintiff was detained in the jail under Lunacy Act. He remained in jail with effect from 29.12.1981 to 6.2.1982. He was also detained in jail with effect from 31.5.1972 to 22.8.1972. PW-4 is Dr. Virender Mohan. He has deposed that the plaintiff came for treatment to him in the year 1982. He was mentally sick. It was a case of old disease. He remained as in-door patient with him. He was also given electric shocks. In his cross-examination he has - 5 - admitted that the plaintiff was discharged from the hospital on 6.10.1982. DW-1 is Shri Om Parkash Yadav. According to him, the plaintiff was discharged from service locally in medical category AYE on 10th November, 1971 being unsuitable for further Army service under Army Rules 13(iii)(iv) having four red entries in service records. He was not eligible for service pensionary benefits as he was discharged from service on administrative grounds having only 11 years and 46 days service. He has proved on record the medical examination report Ex.DW-1/A. He has admitted that the entries recorded in the service records of the plaintiff were not conveyed to him. The trial Court has recorded correct finding that the plaintiff was not suffering from any ailment at the time when he was discharged from the service. The learned first appellate Court has also rightly affirmed the finding recorded by the trial Court to this effect. It is evident from Ex.DW-1/A that the plaintiff was put in medical category AYE at the time of his discharge. The plaintiff as per written statement filed by the defendant has been discharged under Army Rule 13 Items (iii) (v) of the Army Rules, 1954 being unsuitable for further military service having incurred four red ink entries in terms of Army Headquarters letter No.A/13/20/PS2(C) dated 23 August, 1965 in medical category “A”. As noticed above, the red entries were never conveyed to the plaintiff. A bare perusal of Rule 13 Items (iii) (v) suggests that the plaintiff was required to be served with a notice before his discharge on 10th November, 1971. The plaintiff has specifically averred in the - 6 - plaint that he was not served with notice before his discharge on 10th November, 1971. The defendant has not placed on record any contemporaneous record to establish that the plaintiff was served with any notice as contemplated under Rule 13 items (iii) (v) of the Army Rules, 1954. Accordingly, the discharge of the plaintiff without serving him with notice as contemplated under the Army Rules has been rightly declared illegal by the learned first appellate Court. The findings recorded to this effect are liable to be up-held. The plaintiff has led tangible evidence to establish that he fell mentally ill with effect from 1971 onwards. He remained under treatment of Dr. Virender Mohan, (PW-4). PW-4 has deposed that the plaintiff was suffering from mental ailment for the last 10-12 years. He remained as in-door patient. He was discharged by him on 6.10.1982. PW-1 has also deposed that the plaintiff was mentally ill. PW-3 has testified that the plaintiff remained in Central Jail, Nahan under Section 13 of the Lunacy Act. The period for which the plaintiff had remained mentally sick is to be excluded as per Section 13 of the Limitation Act. The learned first appellate Court has come to right conclusion that the suit was filed within limitation. The jurisdiction of the civil Court is not ousted under the Pension Act as argued by Mr. M.A. Khan. The ouster of jurisdiction is not to be presumed in a casual manner. The discharge of plaintiff was a nullity. He was not served with any show cause notice. The learned first Appellate Court has rightly declared that the plaintiff would be deemed to be in service after holding his termination illegal. In these circumstances, the plaintiff would be deemed to have completed his normal tenure of 15 years of qualifying service. So far as DW-1/A is - 7 - concerned, the same has been correctly appreciated by both the Courts below. The finding recorded by both the Courts below is that the plaintiff was not discharged on medical ground. He was discharged on administrative grounds since four red entries were made in his service records. These entries were never conveyed to him. He was not served with any notice required under Rule 13 items (iii) (v) of the Army Rules, 1954. Accordingly, in view of the observations and the analysis made hereinabove, there is no merit in this regular second appeal and the same is dismissed. There shall be no order as to costs. February 24, 2009. (Rajiv Sharma ), J. (sck).