Shiv Karan Mishra, Naib Subedar Vs. Union of India, Represented by Its Secretary Ministry of Defence, New Delhi and Others - Court Judgment

Excerpt:

Judgment:

Shrikant Tripathi, Member (J):

1. Heard Mr.V.K.Sathyanathan for the applicant and Mr.S.Krishnamoorthy for the respondents and perused the record.

2. This is a petition for quashing the communication No.JC- 819018/SKM/NE(CC) dated 19th March, 2008 (Annexure-A) and also for a direction to the respondents to consider the applicant's statutory appeal dated 28th November, 2007 (Annexure-B). The applicant filed the instant matter in the Hon'ble High Court of Karnataka, at Bangalore under Article 226 of the Constitution of India as Writ Petition No.11908 of 2008, but after the establishment of the Armed Forces Tribunal, the matter was transferred to this Bench, under Section 34 of the Armed Forces Tribunal Act, and was registered here as T.A No.181 of 2010.

3. The relevant facts are that the applicant, Ex Naib Subedar Shiv Karan Mishra, No.JC-819018M was enrolled in the Corps of Military Police on 7th February, 1981, and in due course of time he was ultimately promoted to the rank of Naib Subedar with effect from 1st April, 2005. Before the promotion to the rank of Naib Subedar, he was summarily tried for the charge under Section 39(b) of the Army Act and was awarded severe reprimand, which was brought on his service record as red ink entry with effect from 1st April, 2004. The applicant was due to retire in the afternoon of 28.2.2007 on attaining the age of superannuation. His matter for extension of service for another two years with effect from 1st March 2007, came into consideration before an appropriate board, which, on consideration, allowed the extension for two years and communicated the same to the applicant. It appears that the applicant was informed, vide his retirement order dated 3rd March, 2006 to the effect that the extension of service granted to him had been cancelled by the CMP records vide the RO Part II Order No.1/430/0003/06 dated 17th December 2005 on the ground that he had been awarded red ink entry under Section 39(b) of the Army Act. The retirement order (Annexure C) so communicated to the applicant is reproduced as follows:-

“1. Reference CMP Records letter No.219/19/Adm (Stats) dt. 23 Jan. 2006.

2. Your retirement/tfr to pension est order has been received from CMP Records vide their letter under ref. Based on the order you will be retiring from Army on 28 Feb, 2007 (AN).

3. It is for your info that your extension of 02 years service approved by the screening board vide CMP Records RO Part II order No.1/229/044/05 has now been cancelled by CMP Records vide their RO Part II order No.1/430/0003/06 dt. 17 Dec. 05 as you were awarded red ink entry under AA Sec.39(b) on 01 Apr. 2004.”.

4. The applicant then filed Writ Petition No.14966 of 2006 in the High Court of Karnataka, at Bangalore, challenging the order cancelling the extension of service granted to him, mainly on two grounds, firstly, that the extension order was cancelled without observing the principles of natural justice and providing an opportunity of hearing to the applicant, and secondly, that his statutory complaint dated 10th August 2006 was not given due consideration. The Hon'ble High Court of Karnataka allowed the writ petition and quashed the order No.428/D and M dated 3rd March 2006 (Annexure-A therein) as well as the cancellation communication dated 17th December 2005 bearing CMP Rcords vide RO Part II Order No.1/430/0003/06 and remitted the matter to the 2nd respondent with the direction to reconsider the matter and pass appropriate order afresh in accordance with law and in compliance of the observations made in the order. The Hon'ble High Court further directed the respondent No.2 to reconsider the statutory complaint dated 10th August 2006 and dispose of the same in accordance with law and also in a strict compliance of the Section 26 of the Army Act. The relevant observations of the Hon'ble High Court of Karnataka made in paragraph Nos 4 to 7 of the order are being reproduced as follows:-

“4. After careful evaluation of the relevant material available on file, the grounds urged by the applicant in the instant writ petition, the stand taken by respondents in their objections statement and the impugned retirement order cum communication and the statutory complaint submitted by the applicant, it emerges that, the retirement order cum communication issued by third respondent, cannot be sustained, for the reason that, the same is issued without affording reasonable opportunity to the applicant and in gross violation of the principles of natural justice. It is significant to note that, the applicant's request for extension of service of two years has been considered by the Screening Board vide CMP Records RO Part II Order No.1/229/044/05. Thereafter, the said extension of two years' service by the Screening Board is alleged to have been cancelled by another order vide their RO Part II Order No.1/430/0003/06 dated 17th December 2005 on the ground that, applicant was awarded red ink entry under AA under Section 39(b) on 1st April 2004. However, from the said retirement order, it can be seen that, the competent authority, except recording the said ground in one line has not given any finding or reasoning for such cancellation nor has heard the applicant before taking such decision. It is not in dispute that, the Screening Board has considered the request of the applicant for extension of two years service and thereafter an order to that effect was also passed in CMP Records RO Part II Order No.1/229/044/05. But before cancellation of the said two years' extension of service granted by the Screening Board, the competent authority ought to have issued an opportunity of hearing to applicant or notified the applicant and only thereafter the said authority could have proceeded with the matter, since certain rights would have accrued upon passing of the previous order. Therefore, in view of non-affording of reasonable opportunity and for gross violation of the principles of natural justice, the impugned retirement order, cancelling the extension of two years service granted by the Screening Board cannot be sustained. Therefore, I am of the considered view that, at any stretch of imagination, the impugned retirement order dated 3rd March 2006 and cancellation order dated 17th December 2005 cannot be sustained. Hence, they are liable to be set aside.”

5. Further, as could be seen from the records, applicant has submitted a statutory complaint dated 10th August 2006 vide Annexure B and the said complaint is neither considered nor disposed of till date. As per the relevant provisions of the Act and the guidelines issued from time to time by the competent authority, the authority is bound to take the decision before superannuation of the applicant.

6. Therefore, without expressing any opinion on merits or demerits of applicant's case, to meet the ends of justice, it would suffice for this Court, if appropriate direction is issued to second respondent to consider the statutory complaint and dispose of the same in accordance with law.

7. Having regard to the facts and circumstances of the case, as stated above, the writ petition filed by applicant is disposed of with the following directions:-

i. The writ petition filed by applicant is allowed in part;

ii. The impugned retirement order dated 3rd March 2006 bearing No.428/D and M vide Annexure A and cancellation communication dated 17th December 2005 bearing CMP Records vide RO Part II Order No.1/430/0003/06, on account of award of red ink entry under AA Section 39(b) on 1st April 2004, are hereby set aside and the matter stands remitted back to second respondent to reconsider the matter afresh and pass appropriate order in accordance with law and in compliance of the observations made above.

iii. Further, second respondent is hereby directed to reconsider the statutory complaint submitted by applicant dated 10th August 2006 vide Annexure B and dispose of the same, in accordance with law, and in strict compliance of Section 26 of the Army Act, as expeditiously as possible, at any rate on or before 22^nd February, 2007.”.

5. After the aforesaid order of the Hon'ble High Court of Karnataka, the Chief of the Army Staff, considered the applicant's statutory complaint dated 10th August 2006, and passed the speaking order dated 18th April, 2007 (Annexure-R4) holding that the statutory complaint was false and baseless.

6. It is also relevant to mention that the applicant filed second Writ Petition No.16272 of 2007 in the High Court of Karnataka, at Bangalore, and challenged the aforesaid order dated 18th April 2007, rendered by the Chief of the Army Staff on the applicant's statutory complaint. The second writ petition came up for hearing before the appropriate bench on 31st October 2007. During the course of hearing, the learned counsel appearing for the applicant withdrew the writ petition with the liberty to redress his grievance before the appropriate competent authority by submitting representation. Accordingly, the second writ petition was disposed of. The Bench while dismissing the writ petition, left open all the contentions.

7. Keeping in view the observations dated 31st October 2007, of the Hon'ble High Court of Karnataka made in Writ Petition No.16272 of 2007, the applicant submitted the representation dated 28th November 2007 (Annexure-B), to the Chief of the Army Staff. The applicant was not communicated with the decision, if any, taken on the said representation, therefore, he served the legal notice dated 11th February, 2008 (Annexure-C1) on the Chief of the Army Staff. The respondents replied to the legal notice vide the letter No.JC-819018/SKM/NE(CC) dated 19th March, 2008 (Annexure-A) and answered the legal notice appropriately. While replying the legal notice, the respondents disclosed in paragraph 5 thereof that the complaint dated 28th November, 2007 (Annexure-B) addressed to the Chief of the Army Staff had also been turned down by Integrated Headquarters, Ministry of Defence (Army) (AG/PS-2) as intimated vide Integrated Headquarters, Ministry of Defence (Army) (AG/PM) letter No.B/87008/CC-062/AG/PM-5 dated 28^th February, 2008. The stand of the respondents is that the revised policy which laid down new criteria vide the Integrated Headquarters, Ministry of Defence (Army), letter No.B/33098/AG/PS-2(c) dated 13th June, 2007 was not required to be given due consideration in the matter of extensions already finalised.

8. The applicant being aggrieved from the reply of the legal notice (Annexure – A), filed the instant writ petition No.11908 of 2008 in the High Court of Karnataka, at Bangalore, which was received here by way of transfer.

9. Mr.V.K.Sathyanathan, appearing for the applicant, submitted that in the normal course, the applicant would have retired from service in the afternoon of 28th February 2007, on completion of the terms of engagement/on attaining the age of superannuation, but before the retirement, he was granted extension of service for a period of two years vide CMP Records RO Part II, Order No.1/229/044/05. So, the applicant acquired a vested right to enjoy extended tenure, but the respondents revoked the extension order without giving any notice to the applicant and even without providing him any opportunity of hearing. Therefore, on this ground, the Hon'ble High Court of Karnataka at Bangalore vide its order dated 6th February, 2007 rendered in Writ Petition No.14966/2006, quashed the order (vide CMP Record RO Part II No.1/430/0003/06) dated 17th December, 2005 as well as the retirement order dated 3rd March, 2006 (Annexure C) and directed the respondent No.2 to reconsider the matter. According to Mr.V.K.Sathyanathan, the consequence of the order of the Hon'ble High Court of Karnataka was that, the order cancelling the applicant's extension became nonest and the extension order granting two years extension to the applicant revived, subject of course, to a fresh decision after reconsideration of the matter and observance of the principles of natural justice. But the respondents while passing the order dated 18^th April, 2007 (Annexure R4), no doubt, considered the applicant's statutory complaint dated 10th August, 2006 (Annexure R3), but did not record any finding as to whether the order granting extension of service to the applicant was correct and valid or not. The order (Annexure R4) passed by the respondent No.2 is silent on this point. The Chief of Army Staff merely considered the statutory complaint against the red ink entry/sentence of severe reprimand and found that the sentence imposed was proper. As such, the respondent No.2 failed to give due consideration to the direction of the High Court regarding the matter pertaining to the recall of the extension order. Accordingly, the order granting extension of service to the applicant remained in tact, even on passing of the order dated 18th April, 2007 by the respondent No.2, in compliance of the order of the Hon'ble High Court of Karnataka in the aforesaid matter, and no other order came into being regarding cancellation of the extension of service tenure. When the Hon'ble High Court of Karnataka quashed the order cancelling the applicant's extension of service, and even after reconsideration no such type of recall order was passed, the only conclusion that can be drawn is that the extension of the service order granted in favour of the applicant remained in operation even after 28.2.2007.

10. Mr.Sathyanathan proceeded further to argue that the specific representation of the applicant dated 28th November 2007 (Annexure B) as well as the legal notice dated 11th February, 2008 were no doubt given due consideration and appropriate order thereon was passed vide letter dated 19th March, 2008 (Annexure A). But the order so passed had merely repelled the various contentions raised by the applicant, and has not expressed anything regarding cancellation of extension of service granted to the applicant. Therefore, at that stage too, the order granting extension of service in favour to the applicant remained in tact. Mr.Sathyanathan lastly submitted that the respondent No.2 neither provided any notice to the applicant nor any opportunity of hearing before passing the impugned orders (Annexure A and Annexure R4) and as such, the direction of the Hon'ble High Court of Karnataka was not followed, therefore, the aforesaid two orders passed by the respondent No.2 were bad in law.

11. Mr.Krishnamoorthy, Senior Panel Counsel, appearing for the respondents, on the other hand, submitted that, no doubt, the order cancelling the extension of service of the applicant was quashed by the High Court of Karnataka at Bangalore, but the respondent No.2 reconsidered the matter as per the directions of the High Court and passed the orders, Annexures R4 and Annexure A, therefore, the applicant could not raise any legitimate grievance against the order so passed. He next submitted that the true import of the order so passed by the Chief of the Army Staff was to the effect that the applicant's case for extension with effect from 1.3.2002 was not approved. So, despite quashing the order cancelling the extension of service granted to the applicant, his tenure of service came to an end on his attaining the age of superannuation.

12. In this connection, Mr.Krishnamoorthy referred to para 9 of the reply statement and contended that as per the Policy in vogue, a person who had red ink entry within three years immediately preceding the retirement was not entitled to extension and as such the extension of service granted to the applicant was void and non est. In reply, Mr.Sathyanathan submitted that the policy was modified vide letter No. B/33098/AG/PS-2(c) dated 13th June, 2007 (Annexure R5) and according to the modified policy, only the red ink entry made during the tenure as JCO could be considered as adverse and whatever red ink entry recorded during the applicant's tenure as Havildar was not required to be taken into consideration. The sole red ink entry against the applicant was made during the period he was a Havildar.

13. Mr.Sathyanathan next submitted that even if it is true that the modified policy dated 13th June, 2007 was not applicable in this case, the applicant's matter was liable to be considered as per Policy formulated in the year 1998 vide letter No.B/33098/AG/PS 2 (c) dated 21st September 1998 (Appendix A to Annexure R1).

14. It is an admitted matter that the respondents granted two years' extension of service with effect from 1.3.2007 to the applicant on the recommendations of the duly constituted Board. It is also not in dispute that the respondents cancelled the extension vide the order dated 17th December 2005, but the order cancelling the extension lost its significance due to the reason that the same was specifically quashed by the Honourable High Court of Karnataka vide order dated 6^th February, 2007 rendered in Writ Petition No.14966 of 2006. After quashing the said order, the Honourable High Court of Karnataka virtually gave two directions, while remitting the matter for fresh consideration. The first direction was to the respondent No.2, to give due consideration to the applicant's statutory complaint dated 10^th August, 2006 and pass appropriate order thereon. The second direction was to provide an opportunity of hearing to the applicant against the proposed cancellation of extension of his service tenure and pass suitable order in accordance with law, because the earlier order passed for cancellation of the extension order had been passed without due observance of the principles of natural justice. The second direction was also given to the second respondent, but surprisingly, the second respondent reconsidered only the first direction of the Honourable High Court with regard to the statutory complaint dated 10th August, 2006 and rejected the same vide order dated 18.4.2007, Annexure R4. The order, Annexure R4, merely deals with consideration of the applicant's allegation against the red ink entry and the decision thereon. Accordingly, the second respondent found that the red ink entry/sentence of severe reprimand was justified and proper. But the second direction of the Honourable High Court was not given any consideration by the second respondent nor he provided any opportunity of hearing to the applicant regarding the direction No.2. Even the order rendered vide Annexure R4 is silent with regard to the second direction of the Honourable High Court. No doubt, the subsequent order dated 19th March, 2008 (Annexure A) was again passed on the legal notice (Annexure C1) and the complaint dated 27.11.2007 (Annexure B). But while passing that order too, nothing was indicated to show that the extension order was cancelled again after consideration of the applicant's contention as per the direction of the Honourable High Court. No doubt, respondent No.2 while passing the order dated 19th March, 2008 (Annexure A) has disclosed various provisions and relevant facts. But such disclosure seems to have been made to say that the applicant was not entitled to extension of service and it nowhere recalled or cancelled the extension already granted in favour of the applicant. It is also significant to mention that the respondents while passing the order dated 19th March, 2008 merely considered the legal notice and the complaint (Annexure B) unilaterally and did not provide any opportunity of hearing to the applicant as directed by the High Court. As such, the order dated 19th March, 2008 suffers from the same illegality as noticed by the Honourable High Court while allowing Writ Petition No.14966 of 2006. What was required from respondent No.2 in terms of the order of the Honourable High Court was to reconsider the question of cancellation of the order granting extension of service to the applicant and pass appropriate order afresh after providing an opportunity of hearing to the applicant, in the form of either approving the extension or cancelling the same. No such decision seems to have been taken in the present matter nor the principles of natural justice has been complied with. Therefore, the contention that the order granting extension of service to the applicant is still in tact and has not lost its existence even on passing of the order dated 19th March, 2008 (Annexure A), has much substance.

15. Mr.Krishnamoorthy tried to contend on the basis of Para 4 of the order dated 19th Mach, 2008 (Annexure A) that the Head Quarters A TN K and K Area vide their Letter No.215000/KSA/B/DV dated 16^th February 2007 suspended the discharge order till finalisation of the statutory complaint by the Chief of the Army Staff. As the statutory complaint was rejected by the Chief of the Army Staff on 18th April, 2007 by Annexure R4 order,the applicant was discharged from service with effect from 21st April, 2007 as he did not meet the criteria for extension of service by two years. We fail to understand as to how the applicant could be discharged on 21st April 2007 only on the basis of the rejection of his statutory complaint by the Chief of the Army Staff. The effect of the order dated 18th April, 2007 (Annexure R4) passed by the Chief of the Army Staff is that the red ink entry/sentence of severe reprimand remained in tact. But, merely on passing of such order, no automatic cancellation of the extension order granted in favour of the applicant could take place. The respondents seems to have committed legal error in treating that the extension order in favour of the applicant stood automatically cancelled on rejection of the applicant's statutory complaint. Even after rejection of the applicant's statutory complaint, the proper course for the respondents was to provide an opportunity of hearing to the applicant and observe the principles of natural justice as directed by the Honourable High Court of Karnataka, and then pass appropriate order. But, nothing was done towards this legal requirement nor any specific order cancelling the extension of service granted in favour of the applicant was passed after remittance of the matter by the Honourable High Court of Karnataka. Therefore, we are of the view that Para 4 of the order dated 19th March, 2009 is of no help to the respondents.

16. It is also relevant to state that the extended tenure of the applicant's service for two years has already expired on 28.2.2009. Therefore, any direction to reconsider the matter for cancellation of the extension order would amount to reopening of an infructuous matter. When the extended tenure completed on 28th February, 2009, there does not appear to be any justification to reconsider the matter and to cancel the extension granted in favour of the applicant..

17. In view of the aforesaid changed situation, the question of considering the eligibility of the applicant to claim extension of service seems to have lost its significance. Therefore, we do not consider it proper to express any opinion in this regard. In view of the fact that the applicant's extended tenure already expired in the afternoon of 28^th February, 2009, there is no question of actual reinstatement of the applicant to the service. However, the applicant is to be given only notional reinstatement to the service and will be treated notionally in service up to the AN of 28th February, 2009, subject, of course to the condition that he will not be entitled to any pay, allowances and other monetary benefits for the extended tenure of service on the principle of “no work, no pay”, but his extended tenure of two years up to 28.2.2009 is liable to be taken into account for pensionary and other retiral benefits payable to the applicant.

18. The Transferred Application is accordingly allowed. The respondents are directed to notionally treat the applicant in service up to 28.2.2009 and accordingly provide him the benefits of such extended tenure for pension and other retiral benefits. The applicant will, however, be not entitled to any pay, allowances and other financial benefits for the extended tenure subject to the condition that any amount already paid to him will not be recovered.

19. There will be no order as to costs.

20. Issue free copy of this order to both side.