JANARDAN SAHAI,J. - (1.) THE applicant Ramjas was enrolled in the Indian Army on 20.3.1984. He was promoted to the rank of Naik in the year 1989 and he was thereafter promoted as Havildar or 1.12.1993. The petitioner was approved for promotion to the rank of Naib Subedar on 16.3.2005. The promotion was, however, cancelled by order dated 24.4.2005 passed by the third respondent, Officer-in-Charge, Signal Records on the ground that the applicant was involved in Criminal Case No. 344/1989 under sections 452/323/506/34,1.P.C. The applicant filed Writ Petition No. 15393 of 2007 (S) in the High Court at Jabalpur Counter and rejoinder affidavits were exchanged in the High Court and the papers were thereafter transmitted to the Tribunal in view of the provisions of section 34 of the Armed Forces Tribunal Act, 2007.
(2.) WE have heard Sri R. Chandra, holding brief of Sri K.C. Ghildiyal, learned Counsel for the applicant and Sri K.D. Nag, Senior Standing Counsel on behalf of the respondents. Learned Counsel for the applicant submits that the recital in the order of cancellation of promotion that Criminal Case No. 344/1989 was pending is incorrect and in fact the case had been decided on 16.10,1998. The copy of the judgment in the said case has been annexed by applicant as Annexure P-4. A perusal of this judgment indicates that the applicant was convicted for the of­fences under sections 452/323/34 and 506, I.P.C. and was awarded punishment of fine. From the facts, which have been stated in the judgment of the Trial Court, the Additional Chief Judicial Magistrate it appears that a complaint was lodged by one Chhotey lal alleging that the accused Banwari lal and others used to commit theft of electricity and about 10 days prior to the incident a Foreman came to the village and he got removed the wires of the accused from the pole and the accused and members of his family were having a feeling that this was on information of the complainant and not only this, there was ex­change of hot words between Santara, wife of the complainant and the women­folk of the accused and on 12.3.1988 at about 6.00/7.00 p.m., the brother of the accused Banwari, Ram Chander, sons of Chiranji lal, their wives Santara, W/o Banwari lal and Surti Devi W/o Ram Kishore had committed criminal trespass by entering his house and also abused him and when they were asked why they were abusing him, they said that he had made a complaint against them and that they will teach him a lesson and thereupon some lathi blows were given. In the counter-affidavit, the respondents have stated that apart from this case under sections 452/323/34 and 506, I.P.C. there was another Criminal Case No. 72/95 : State v. Banwari and others which was pending against the applicant. From the facts set out in the judgment of the Appellate Court it appears that there was a dispute about a plot of land. The complainant in this case was Chhotey lal who was the complainant in the other case also. It appears that in that case, the applicant, who was one of the accused was convicted for the offence under section 325, I.P.C. by the Trial Court, namely, Judicial Magistrate I, Rewari. A Criminal Appeal No. 71/2002 was filed by the accused persons and the said appeal was partly allowed and conviction under section 325, I.P.C. was converted into one under section 323, I.P.C. and sentence of fine was awarded against the applicant. It appears that against this judgment a revision was filed before Punjab and Haryana High Court and on 20.9.2010 the Punjab and Haryana High Court allowed the revision on the basis of compromise between the parties and the offence was compounded and the accused were acquitted. A copy of this order has been filed in this transferred application.
(3.) THE criteria for grant of promotion in matters where departmental case or a criminal case or the matter is pending investigation has been laid down in the Army Order No. 1 of 2001. As the question involved in this case turns upon the application of this Army Order, we quote the said Army Order as under : "1. Cases have come to notice where J.C.Os. and O.R. while involved in disciplinary, vigilance or criminal cases were inadvertently promoted or discharged before finalization to these cases. 2. Whereas the above situation is not likely to arise in cases in which the competent authority to promote and individual or sanction his dis­charge is the commanding officer of the individual, such a situation may occur where the promotion/discharge is effected by the record office. 3. In order, therefore to obviate occurrence of cases of this nature, the following procedure is laid down :- (a) Before ordering promotion, substantive or active, the record office will obtain clearance from the unit/formation where an individual is serv­ing regarding his non-involvement in any disciplinary, vigilance or crimi­nal case. If an individual is reported to be involved in any of the following cases, a ban on his promotion will be imposed :- (i) Disciplinary cases : Where formal cognizance of an offence has been taken. (ii) Vigilance cases : Where a report from the S.P.E./C.B.I, has estab­lished a prima facie case against the individual. (iii) Criminal cases : Where a person is facing prosecution by Government in a Court of Law on a matter involving moral turpitude of lack of integrity. (b) Units/formations will inform the record office of the institution and the result of the disciplinary/village/criminal case against personnel serving under them. The cases of promotion to higher ranks in respect of those who are subsequently acquitted or against whom the case is with­drawn will be reviewed and they may be recommended for such promotion is to be effected from a retrospective date, the individual who has been ac­quitted or against whom the case has been withdrawn will be so promoted from the due date if he is considered fit in all respects. (c) Serving personnel against whom disciplinary/vigilance cases are pending at the time of their retirement/release/invalidment, will be re­tired/release/invalided out on the due dates and Army Act. Section 123 in­voked to proceed against them till finalization of the case. (d) Persons against whom proceeding are pending in Criminal or Civil Court as also those who are material witnesses in disciplinary cases will be discharged/invalided out on the due dates. 4. A.O. 20/81 is hereby cancelled." ;