Aparesh Kumar Singh, J. - (1.) HEARD counsel for the parties. The instant review application is directed against the judgment dated 25.2.2010 passed in W.P.(S) No. 1769 of 2004 by which the said writ petition was dismissed.
(2.) LEARNED counsel for the petitioner has sought to advance his submissions that the judgment for which, the review is being sought, suffers from errors apparent from the face of the record. In order to support his submission, it is submitted that the order of discharge had been passed by Major General, Ground Officer Commanding, (GOC), 23 Infantry Division while he was not the competent authority as per Rule 13(3)(III)(v) of the Army Rules, 1954. As per the said Army Rules, it is the Brigade or the Sub -Area Commander who is the competent authority to discharge a person like the petitioner who was a Signal Man/Sipoyee in the Indian Army. The second ground urged on behalf of the petitioner is that the show -cause notice issued upon him before passing order of discharge, which is Annexure -2 to the review petition, is in the nature of a charge of misconduct in respect of which, proper disciplinary inquiry ought to have been held. The order of discharge, therefore, is not a discharge simplicitor but a dismissal order. Therefore, Rule 14 which provides for termination of service by the Central Government on account of misconduct is applicable to the petitioner's case, which has not been followed and the learned single Judge has committed errors on the face of the record. Lastly it is also contended on behalf of the petitioner that despite contrary submission made in the supplementary counter affidavit of the respondent in the writ petition, the learned single Judge has held that the petitioner would be entitled to payment of gratuity as per the army rules and his apprehension that he would be illegally deprived of his retrial benefits, is misconceived. Learned counsel for the respondent -Union of India on the other hand takes this Court to the specific grounds urged on behalf of the petitioner in the writ petition, which are referred to in para -8 of the judgment sought to be reviewed. It is submitted that on these grounds, the writ petition was heard and decided and there are no apparent errors in the impugned judgment which warrants review of the judgment in question. Moreover, it is submitted that the petitioner did not challenge the order of discharge but only the movement order issued in consequence thereto. The petitioner also accepted that he was issued a show cause before passing the order of discharge. He also preferred an appeal before the appellate authority, which was rejected by order communicated to him under the signature of Commanding Officer, GOC, 23 Infantry Division. It is further submitted on behalf of the respondents that the reference made to Rule 14 is in -applicable to the petitioner's case as he is not an Officer in respect of whom, the said procedure for termination of service on account of misconduct is provided. The petitioner has rightly been discharged from service by the competent authority and the impugned judgment does not suffers from any apparent errors on the face of the record.
(3.) THE respondent -Union of India has, however, preferred a Civil Miscellaneous Petition being C.M.P. No. 134 of 2010 whereunder they have made a prayer for correction in the findings recorded at Para -18 of the judgment dated 25.2.2010. According to the petitioners in the said C.M.P. and respondents in the writ petition as well as the civil review, the learned single Judge has committed an error by holding that the petitioner -employee would be entitled to the payment of gratuity as per the Army Rules.;