IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT APPEAL NO : 1966 of 1999 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated in NO : OF on the file of the High Court.) Between: ..... APPELLANT AND .....RESPONDENT Counsel for the Appellant:MR.VENKATESWARLU POSANI Counsel for the Respondent No.: MR.G.RAMACHANDRA RAO The Court made the following : ORAL JUDGMENT: (per THE HON’BLE MRS. JUSTICE T.MEENA KUMARI) Aggrieved by the order, dated 18.08.1999 made in WP No. 3923 of 1998 by a learned Single Judge of this court, setting aside the order impugned therein and directing the first appellant herein to consider the issue under Regulation 16(a) afresh, the present Writ Appeal is filed by the respondents in the writ petition. The respondent herein filed the above writ petition seeking a direction to the appellants herein to release all the pensionary benefits by quashing the order dated 24.12.1996 issued by the first appellant and the consequential order dated 23.7.1997 issued by the third appellant. The respondent herein joined Military Services in the year 1969 and rose to the rank of Lieutenant Colonel and he was honoured with certain awards in recognition of the services. Subsequently, when the respondent was transferred to Secunderabad, he was on leave and sought for extension thereof, which was not extended and he was declared absent without leave and charge sheeted on 10.11.1993 for misappropriation of military funds and for being absent without leave from 8.2.1993 to 7.4.1993. After conducting an enquiry, the General Court Martial, held proved three charges out of four and awarded the punishment of cashiering him and forfeited four years of past service for the purpose of loss of pension. On representation of the respondent under Sec. 164(1) of the Army Act, the General Court Martial reassembled and apart from confirming the findings, awarded third punishment by proceedings dated 7.5.1994 to forfeit all arrears of pay and allowances and other public money due to him at the time of cashiering. The appeal preferred by the respondent under Sec. 164(2) to the President of India was also rejected. Thereafter, the respondent also filed WP NO. 27714 of 1996. While so, the first appellant herein issued show cause notice dated 21.8.1995 calling for his explanation as to why the pensionary benefits shall not be forfeited. The respondent submitted his explanation on 20.9.1995. Consequently, the first appellant passed an order on 24.12.1996 forfeiting all the pensionary benefits. The respondent came to know of the said order only on 23.7.1997 directing him to pay a sum of Rs.30,132/-, as a result of the impugned order. Hence, the respondent filed the writ petition. The impugned order shows that the punishment imposed by proceedings dated 7.5.1994 imposed by the Court Martial General, after reassembling, was set aside by order dated 19.12.1997 by this Court in WP No. 27714 of 1996. But before the said charge was quashed, proceedings were initiated for forfeiting the pensionary benefits and an order was passed. Therefore, the learned Single Judge, on a scrutiny of judicial pronouncements, held that since the impugned order was passed much earlier to the order passed by this Court in the above W.P., it would be in the interest of justice that the issue requires reconsideration by the appellants under Regulation 16(a) of the Army Act and consequently set aside the impugned order directing the first appellant to consider the issue under Regulation 16(a) of the Army Act afresh in the light of the observations made therein and the Full Bench of Delhi High Court in Brig. A.K. Malhotra (Retired) Vs. Union of India and others (1997 (2) Labour and Industrial Cases 2005. Aggrieved thereby, the present Writ Appeal is filed by the respondents in the writ petition inter alia contending that in view of cashiering the respondent herein, which is a major punishment, setting aside the punishment imposed by proceedings dated 7.5.1994 does not arise. It is also contended that the operation of the judgment passed by the Delhi High Court in Brig. AK Malhotra’s case and relied on by the learned counsel for the respondent, is stayed by the Supreme Court and is subject matter of Special Leave Petition filed by the appellants herein and, therefore, the learned Single Judge erred in directing the respondents to reconsider the matter. As can be seen from the record and the impugned judgment, the show cause notice issued to the appellants refers to the punishment imposed by the General Court Martial, though set aside by the court. In view of these facts, the observation of the learned Single Judge that since the impugned order was passed much before the order passed by this Court in the Writ Petition filed by the respondent, it would be in the interest of justice to reconsider the issue afresh under Regulation 16(a) of the Army Act, in our considered view, does not call for any interference, more particularly when once of the punishment awarded by proceedings dated 7.5.1994 is set aside by the Court. Therefore, we are of the considered view that it is not a fit case to be interfered with, with the well-considered order of the learned Single Judge. The Writ Appeal accordingly fails and is dismissed. No order as to cost. ____________________ Justice T.Meena Kumari _______________________ Justice Ramesh Ranganathan June 30, 2008 MAS. ........REGISTRAR To 1. 2.2 CD copies Form-NIC-OGS/WA { }