BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/10/2008 CORAM THE HONOURABLE Mr.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE Mr.JUSTICE P.P.S.JANARTHANA RAJA WRIT APPEAL (MD) No.425 of 2008 R.Rajendran ... Appellant Vs. 1. The Commandant Madras Regimental Centre Wellington (Nilgiris) 900 458 2. Records the Madras Regimental Centre Wellington (Nilgiris) - 900 458 3. The Colonel of the Madras Regiment Chennai, Tamil Nadu 4. The Commanding Officer 7, Madras, C/o.56 APO 5. The Integrated HQ of Mod. (Army) Dte. Gen. of Infantry Inf (Legal) General Staff Branch C/o. 56 APO Pin: 900 256 6. The Chief of the Army Staff Army HQ., New Delhi. ... Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order dated 9.4.2008 made in W.P.(MD) No.3197 of 2008. !For Petitioner ... Mr.D.Rajendran ^For Respondents ... Mr.P.Krishnasamy, Central Govt.Standing Counsel. :JUDGMENT
(Judgment of the Court was made by K.RAVIRAJA PANDIAN,J.)
The appellant herein challenged the order passed by the Writ Court dated
9.4.2008 made in W.P.(MD) No.3197 of 2008 in this writ appeal, wherein and
whereby the appellant was non-suited for the relief of issuance of a writ of
certiorarified mandamus calling for the records relating to the impugned order
passed by the first respondent in his proceedings Nil dated 16.4.1992 and to
quash the same, to direct the respondents to sanction the pension and gratuity
to the appellant with back pension treating the remaining service period as
duty, and all other attendant and other benefits.
2. The case of the appellant is that he was enrolled in the Army on
26.10.1977 as a soldier and he had served in the Army for 14 years, 5 months and
20 days at the time of receiving his dismissal order. He was eligible for two
months leave for the year 1992 under Army rules. Excluding the leave period, he
had to serve only 4 months and 10 days for drawing service pension. His term of
engagement is 15 years. He married one Meena alias Meenachi on 18.6.1986 at
Kamachipuram, Thirumanickam village, Usilampatty Taluk, Madurai District, tamil
Nadu in accordance with Hindu customs during his leave. Thereafter, due to
certain disputes among his family and his wife’s family, before a village
Pacnhayat, a divorce deed was got executed on 25.2.1988, wherein himself and his
wife Meena had signed and the elders of the Panchayat also signed as witnesses.
Thereafter, the appellant re-married one Chinnathai on 16.3.1989 and the
marriage had been published vide Record Office Part II Order 1.1.1990 to enter
her name in the service documents of appellant as nominee for his entire
benefits. After three years, his divorced wife Meena had sent a letter to the
Madras Regimental Centre claiming that she was the legal wife and entitled to
pension with a malicious intention to stop the pension of the appellant, though
the marriage between the appellant and Meena had already dissolved. The Madras
Regimental Centre issued show cause notice to the appellant vide their letter
No.2/576826/A2 dated 7.4.1992 with instruction that his reply should reach the
Centre by 10.4.1992. The appellant replied to the show cause notice vide his
letter No.2576826/01 dated 9.4.1992 stating that the appellant had not involved
in plural marriage. The Commandant Madras Regiment had issued the appellant
dismissal order on 16.4.1992. On a letter received by his divorced wife Meena,
the dismissal order was issued without taking into consideration of his
tremendous field service without any enquiry regarding his character and
services. The appellant sent an appeal against the dismissal order to the
Chief of the Army staff on 23.5.1992 and also placed a mercy petition before the
President of India on 28.12.2006 for granting of pension. The Madras Regiment
vide their letter No.2576826/SP/69/PC-1 dated 15.2.2007 replied that even the
dismissal of the appellant is converted into discharge under orders of the
competent authority and he would not be eligible for service pension as his
total service is below the requirement of minimum fifteen years. Thereafter a
mercy petition was submitted before the Integrated HQ of Mod (Army) Dte Gen of
Infantry Inf (Legal) General staff Branch, C/o. 56 APO on 5.5.2007 for grant of
service pension and the Madras Regiment vide their letter NO.2576826/CC-LN/88/PG
dated 3.7.2007 stated that in view of the order of dismissal from service,
past service rendered would be treated as forfeited for pensionary benefits.
There order of dismissal is challenged in the writ petition. The learned
single Judge dismissed the writ petition on the ground of laches.
3. Respondents filed counter affidavit inter alia contending that as per
Para 333 of Regulations for the Army – 1987 (Revised Edition), when an
individual subject to Army Act found contracted plural marriage without prior
sanction of Government, his service will be terminated under AA Section 20(3)
read in conjunction with Army Rule 17. The appellant was dismissed from service
only after his acceptance of contracting plural marriage with Smt.Chinnathai, in
the reply to the show cause notice issued to him. As per Regulation 113 of
Pension Regulations of Army 1961 Par I, the appellant is not eligible for any
pension and gratuity, as he was dismissed from service and forfeits all previous
service and also not completed fifteen years of minimum qualifying service to
get pension and gratuity on the date of dismissal. The unblemished record of
service in the past years cannot justify the offence committed by the appellant
by contracting plural marriage without prior sanction of Government. The
appellant failed to report to the authorities regarding his marriage with
Miss.Meena alias Meenachi with proof.
4. Learned counsel appearing for the appellant argued in line with the
averments made in the affidavit filed in support of the petition and submits
that the appellant has submitted a representation dated 23.5.1992 to set aside
the order of dismissal passed by the first respondent and the reason for delay
is also explained by the appellant. As the appellant has to serve only four
months and ten days more for drawing service pension, the pension may be ordered
to be paid. Learned counsel has not argued anything with regard to the alleged
second marriage.
5. Mr.P.Krishnasamy, learned Central Government Standing Counsel appearing
for the respondents submitted that the appellant has approached this Court after
period of fifteen years from his dismissal and the writ petitioner deserves to
be dismissed in limine on the ground of laches. As per Para 333 of Regulations
for the Army – 1987 (Revised Edition), when an individual subject to Army Act
found contracted plural marriage without prior sanction of Government, his
service will be terminated under AA Section 20(3) read in conjunction with Army
Rule 17. The appellant was dismissed from service only after his acceptance of
contracting plural marriage with Smt.Chinnathai, in the reply to the show cause
notice issued to him. As per Regulation 113 of Pension Regulations of Army 1961
Par I, the appellant is not eligible for any pension and gratuity, as he was
dismissed from service.
6. It is admitted in this case that the appellant originally married one
Meena alias Meenachi on 18.6.2008. As required by the Regulations, this
marriage has not been notified. The alleged deed of divorce executed between
them on 25.2.2008 has not been established before the authorities. However, the
appellant contracted for second marriage on 16.3.2989 and the said marriage has
been published as required under the regulations. Further, the fact of
approaching the Court after the period of nearly twenty years has not been
explained by the appellant properly.
7. Normally, in the case of belated approach, writ petition has to be
dismissed. Delay or laches is one of the factors to be borne in mind while
exercising the discretionary power under Article 226 of the Constitution of
India, 1950. In the cases of the present nature, this Court cannot invoke its
extraordinary power as there is such negligence or omission on the part of the
appellant to assert his right as taken in conjunction with the lapse of time and
other circumstances. Useful reference can be had to the judgment of the Supreme
Court in the case of SHIV DASS VS. UNION OF INDIA reported in 2007 AIR SCW
1487, K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 993; State of Orissa
v. Sri Pyarimohan Samantaray, (AIR 1976 SC 2617) and State of Orissa v. Arun
Kumar (AIR 1976 SC 1639).
8. For the foregoing reasons, we do not find any merit in the appeal so as
to interfere with the order dated 9.4.2008 passed by the Writ Court in W.P.(MD)
No.3197 of 2008. Accordingly, the writ appeal is dismissed. However, there is no
order as to costs.
usk
Copy to:
1. The Commandant
Madras Regimental Centre
Wellington (Nilgiris)
900 458
2. Records the Madras Regimental Centre
Wellington (Nilgiris) – 900 458
3. The Colonel of the Madras Regiment
Chennai, Tamil Nadu
4. The Commanding Officer
7, Madras, C/o.56 APO
5. The Integrated HQ of Mod. (Army)
Dte. Gen. of Infantry Inf (Legal)
General Staff Branch
C/o. 56 APO Pin: 900 256
6. The Chief of the Army Staff
Army HQ., New Delhi.