SINGHVI, J. - (1.) ORIGINALLY this writ petition was filed by the petitioner for his promotion as Acting Lt. Col. and against his supersession by the promotion of respondent No. 12. The petitioner had also made a prayer for restraining the respondents not to initiate any administrative action against him in respect of a matter which was considered in S. B. Civil Writ Petition No. 2273/86, Major Radha Krishna vs. Union of India and others, decided on 15. 12. 1988. However, during the pendency of the writ petition an order dated, 28. 2. 1992 (Annex. 13) came to be passed by the Government of India dismissing the petitioner from service. Therefore, the petitioner made an application on 16. 3. 92 for leave to amend the writ petition. This application was accepted by the Court on 9. 4. 92 and the petitioner was allowed to assail the legality of the order dated, 28. 2. 92 and also to make a prayer for quashing of the said order dated, 28. 2. 92. Now the petitioner's prayer relate not only to quashing of the order of punishment passed against him but also for his promotion with retrospective effect and for grant of consequential benefits.
(2.) FACTS which are necessary for deciding the controversy raised in the writ petition are that the petitioner was commissioned in the Indian Army (Farms) on 15. 6. 66. He was promoted to the rank of Major on 15. 6. 79. S/shri V. P. Singh (now Lt. Col.) and Ranvir Singh (now Lt. Col.) were promoted to the rank of Major alongwith, the petitioner. The petitioner claims that his Annual Confidential Reports for the years 1982-83, 1983-84 and 1984-85 have been above average. In December 1985 a Selection Board was constituted for selection of officers for promotion to the rank of Lt. Col. in Military Farms Branch. This Selection Board examined Annual Confidential Reports of eligible officers including two years' Military Farms Command records. It is the case of the petitioner that the Selection Board recommended three officers including the petitioner and placed them in acceptable grade. By letter dated, 27. 6. 86 (Annex. l) the petitioner was informed by the Army head quarters that he has been placed in acceptable grade for promotion to the rank or A/lt. Col. and he will be promoted as and when suitable vacancy is available subject to his record of service remaining satisfactory and his remaining in acceptable medical classification. When three vacancies became available in April 1987 in the cadre of Lt. Col. (Military Farm Branch), Major V. P. Singh and Major Ranbir Singh were promoted to the rank of Acting Lt. Col. However, in the case of the petitioner an order of promotion was not issued due to a ban imposed by the Director General of Discipline and Vigilance, Army Headquarters. Petitioner's case is that his promotion as Actg. Lt. Col. was kept under cloud on account of repeated Court's enquiries and a person junior to him namely, Major A. S. K. Swarnpandian was unlawfully promoted w. e. f. 17. 3. 89. In relation to the order of punishment the petitioner has stated that on 24. 5. 82 he took over charge of Military Farm, Jaipur alongwith Military Farm Depots, Kota, Ajmer, Jodhpur and Nasirabad from Shri S. P. Singh, Manager. During the course of handing over/taking over the petitioner had made specific remarks regarding loose hay of local purchase and baled hay having not been kept in thatched form. He made a report to this effect to the then Dy. Director, Military Farms, Southern Command, Mirkee, Pune. In his report, the petitioner had pointed out shortage in the hay and therefore, he made a request for 100% weighing of stack No. 1. He had specifically stated that he suspected shortage of stack. By secret letter No, SC-1 dated, 20. 09. 1983 the petitioner had made a request for taking of photographs of Military Farms Stack Yard. However, no action was taken on the same. On 6. 2. 84 fire broke out in Military Farm, Jaipur in which one stack of loose hay containing 1,10,290 Kg. of hay costing Rs. 73315. 25/- was destroyed. Petitioner took action as per Army order No. 109/79 read with Para-1195 BSR. On 10. 2. 84, a Court of Enquiry was ordered by the Southern Command Headquarter into the circumstances which led to the fire. On the basis of the order of the Southern Command Headquarter 61 (1) Sub Area, detailed officers to conduct the Court of Enquiry. The Court of Enquiry made recommendations which did not contain any blemish language against the petitioner and Brig. Mahabir Singh, Commander Headquarters 61 (I) Sub Area, accepted its recommendations. On 15. 6. 84 the petitioner was moved to Army Headquarter on transfer. He was given assignment as DEMF-4 and later on DDMF-3 in the office of the Director General, Military Farms, New Delhi. After retirement of Brig. Mahabir Singh on 30. 6. 84, findings and recommendations of the First Court of Enquiry were rejected by officiating G. O. C. Incharge, Southern Command and 61 (1) Sub Area, was directed to hold fresh inquiry in the matter. This order was made on 30. 8. 84. On 31. 1. 85, G. O. C. In charge, Southern Command, directed initiation of disciplinary action against the petitioner on the recommendations of the Commander 61 (1) Sub Area, who had made recommendations for separate Court of Enquiry against Col. G. S. Hundal, the then Dy. Director, Military Farm Southern Command. Not-withstanding this, no court of enquiry was instituted against G. G. Hundal and he retired from service on 30. 09. 1985. In the meantime, the petitioner made a statutory complaint under section 27 of the Army Act, 1950 against holding of the second Court of Enquiry. This statutory complaint filed by the petitioner was altogether ignored and on 17. 8. 85 direction was given to the Court of Enquiry to investigate the circumstances under which 36382 Kg. of loose hay was found deficient on 100% weighment in Stack No. l at Military Farm, Jaipur. On 2. 1. 1986, Directorate of Military farms ordered the petitioner's attachment to Military Hospital, Jaipur. He was directed to report at Military Hospital on 6. 1. 86. This the petitioner complied. On 24. 1. 86 the petitioner was served with a charge-sheet under section 63 of the Army Act in respect of fire incident of 6. 2. 84. On 25. 3. 86 the Commanding Officer, Military Hospital, Jaipur wrote to Headquarter 61 (1) Sub Area that a detailed analytical study of the evidence discloses no cognizable offence having been committed by the petitioner. This document has been placed on record as Annexure-3. On 27. 11. 86 a fresh charge-sheet was issued to the petitioner by the Commander, Military Hospital, Jaipur. Two charges were levelled under section 52-F and one was under section-61 of the Army Act. The petitioner filed a writ petition before this Court which was registered as S. B. Civil Writ No. 2273/86. On 2. 12. 86 this Court issued a show cause notice and stayed the proceedings of the General Court Martial constituted vide order dated, 27. 11. 86. On 8. 12. 86 respondents filed an application for vacation of the stay order on the ground that the three years limitation specified in Section-122 of the Army Act, 1950 was going to expire on 9. 12. 86. After hearing the parties, the Court modified the earlier order dated, 2. 12. 86. While permitting the respondents to convene General Court Martial, the Court ordered that no final verdict shall be recorded till further orders from the Court. A second application was filed by the respondents for vacation of the stay order. However, that was declined by the Court. After hearing the parties,this Court allowed the writ petition on 15. 12. 88. This Court quashed the order convening the General Court Martial for the trial of the petitioner. A review petition filed by the respondents was dismissed by this Court. After the decision of this Court petitioner sought interview with the Military Secretary for making a request to remove the attachment and to promote him as Lt. Col. and also to promote him on criteria appointment. However, the petitioner's request for interview was not granted. During the pendency of the writ petition filed by the petitioner, a show cause notice dated 10th" September 1990 was served upon the petitioner, on 22. 10. 90. Before the petitioner could reply to this show cause notice, it was withdrawn and the petitioner was directed vide letter/telegramme dated, 29. 10. 90 to return all copies of the show cause notice in original. The petitioner complied with this direction vide his letter dated, 30. 10. 90 (Annex. 10 ). After 19 days the petitioner was again served with show cause notice dated 10. 9. 90. Petitioner was called upon to submit his explanation and defence against the proposal of termination of his service under section-19 of the Army Act read with Rule-14 of the Army Rules. In the show cause notice it came to be recorded that in respect of the allegations of misconduct levelled against the petitioner was inquiry impracticable having become time barred. The petitioner filed reply to the show cause notice and this was forwarded to the Army Headquarters on 17. 06. 1991. After about 9 months the petitioner was served on 123. 92 with order dated 28. 2. 92 of his dismissal from service.
(3.) THE petitioner has assailed the action of the respondents on the ground of violation of the provisions of the Army Act and the Rules framed therein as well as on the ground of arbitrariness, victimisation, malice and violation of the Rules of natural justice. In their reply, the respondents have admitted the facts regarding the posting of the petitioner in the month of May 1982 as Incharge of the Military Farm, Jaipur. They have stated that fire broke out in stack yard of Military Farm, Jaipur on 6. 2. 84. According to the respondents, the G. O. C. in Chief, Southern Command, was not satisfied with the conduct of the first Court of Enquiry. He, therefore, issued direction for fresh enquiry. Respondents have pleaded that in the previous writ petition No. 2273/86, this Court did not find any fault with the directions of the officiating G. O. C. in Chief, Headquarters, Southern Command or the Court of Enquiry proceedings. The Court had only found that order passed by Col. Rawat was illegal. Further case of the respondents is that although the petitioner had been approved for promotion to the post of Lt. Col. in December 1985 but ban had been imposed on 12th September 1985 a in pursuance of the direction of the GOC-in Chief, Headquarter, Southern Command, dated, 31. 5. 85 for initiation of disciplinary action against the petitioner. This ban was in tune of the Army Headquarters Policy Note No. A/56728/80/ps-I dated, 17. 3. 78 as amended vide Army Headquarter Policy Note No. A/56125/a/ps-I dated, 1. 1. 85. Case of the respondents is that the finding of the earlier Court of Enquiry was found to be defective and therefore, fresh Court of Enquiry was ordered to go into the truth of the allegations. Further plea of the respondents is that the petitioner cannot take any advantage of the statutory complaint filed by him and also of the failure of the respondents to decide the statutory complaint. . Respondents have then pleaded that the findings of the General Court Martial held against the petitioner has been nullified by the order of this Court dated, 15. 12. 88. That related to the incident of fire dated, 6th of February 1984. A Court of Enquiry pertaining to deficiency/deterioration of hay which was pended due to fire incident in the Military Farm, Jaipur was therefore, taken up and the GOC in-Cheif, Head quarters (Southern Command) directed severe disciplinary action against the petitioner for negligent performance of duties and disobedience of the order of Dy. Director, Military Farms, Head quarter (Southern Command ). By that time this Court of Enquiry was finalised, case against the petitioner had become time barred in terms of Section-122 of the Army Act. The petitioner was therefore called upon to waive the time limit vide letter dated 3. 12. 1986. The petitioner declined the option. He, therefore, could not be brought to trial. Consequently, a statement of case was forwarded by the Headquarters (Southern Command) for taking of action under Section-19 of the Army Act read with Rule-14 of the Rules. Thus, the administrative action taken by the respondents is in accordance with law. Respondents have countered the grounds raised by the petitioner by pleading that they have acted in accordance with the provisions of the Army Act and the rules framed thereunder. They have taken action on the basis of the findings recorded against the petitioner and once the petitioner has been dismissed from service his claim for consideration of his promotion has become infructuous. ;