* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 8th April, 2011
+ W.P.(C) No. 3711/2010
TEIN SINGH DAHIYA ..... Petitioner
Through: Mr.S.S.Pandey with
Mr.Santosh Kumar,
Advocates.
versus
UOI & ORS. .... Respondents
Through: Mr.Ashwani Bhardwaj,
Advocate for Mr.Jitender
Chaudhary, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. The undisputed fact is that the petitioner was enrolled
in the Indian Army on 9.3.1987 as a Havildar Clerk (GD) and
after completing Basic Training was paid salary in acting
rank of Havildar w.e.f. 23.06.1988 with ante-dated seniority
effective from 26.03.1988.
2. Deputed as a Clerk in the Quarter Master Section of
7015 Combined Workshop EME, on 29.07.1988, the
petitioner was assigned additional duties as Coy Clerk of
Recovery Company on 13.06.1990. Having become due for
grant of substantive rank of Havildar w.e.f. 1.3.1990,
petitioner was granted said substantive rank on 8.7.1990.
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3. In August 1990, the Commanding Officer of 7015
Combined Workshop EME summarily tried the petitioner for
an offence punishable under Section 41 of the Army Act and
for unexplainable reasons awarded punishment of reduction
to the rank of Sepoy, little realizing that a penalty of
reduction in rank cannot be given effect to when a person
has earned no promotion.
4. Realizing that the penalty levied was incapable of
being given effect to, inasmuch as a direct entrant to a post
cannot be reduced to a rank of a lower post, rather than
substitute the penalty with such penalty which was capable
of being inflicted upon, the respondents let the matter rest
as it was.
5. The result was that the petitioner continued to receive
salary and work as a Havildar; in the acting rank thereof. He
continued to receive salary as a Havildar till the respondents
superannuated the petitioner on 31.10.2009 and proceeded
to recover `88,936/- from the final dues payable to the
petitioner on the ground that while reducing the petitioner
to a post of Sepoy inadvertently higher wages in the rank of
Havildar was paid to him.
6. The petitioner has a two-fold grievance. Firstly, of
`88,936/- being deducted from the dues payable to him and
second of not being granted extension in service of two
years.
7. Suffice would it be to state that as per the extension
policy dated 21.9.1998 petitioner would be entitled to serve
for another two years if he had no Red Ink Entry entered in
his service book. A Black Ink Entry would have enabled him
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for service being extended for two years.
8. In a nutshell, what the petitioner claims is that the
penalty in question is non-est. It was rightly not given effect
to. For the reason it was never given effect to, the petitioner
never exercised his rights to question the same. Even
otherwise, the penalty cannot be given effect to. No person
can be visited with the penalty of being reduced in rank to a
post lower than at which the person entered. At best,
punishment entered has to be treated as a Black Ink Entry.
This is what the petitioner urges.
9. Let us have a look to the counter affidavit filed.
10. In the brief facts, in para 1, it is stated that the
petitioner was enrolled in the Army Corps as a direct entry
Havildar and after successful completion of Military Training
was promoted to the rank of paid acting Havildar.
11. Learned counsel for the respondents expresses regret
at the use of the expression “promoted” in the counter
affidavit and concedes that it is a deliberate attempt to lay
ground to the fact that the petitioner entered service in a
lower post and thus penalty of reduction in rank could be
inflicted. Counsel concedes that under the Indian Army,
persons are given an acting rank for a while to see whether
they are worth of the rank held and upon proof of
worthiness are confirmed against the rank. Thus, the
question of anyone being promoted from the rank of paid
Havildar to a Havildar does not arise.
12. Learned counsel for the respondent further concedes
that in para 2 of the counter affidavit filed it is wrongly
pleaded that as a result of the penalty the petitioner was
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reverted to the substantive rank of Sepoy.
13. Let us reproduce the averments made in the para 2 of
the counter affidavit for the reason we find the same to be
self-contradictory. They read as under :
“That on 11 July 1990, while serving with 7015
EME Bn, the individual was sentenced to
“Deprivation of Acting rank by reducing to
substantive rank” for an officer committed by
him under Army Act Section 41 by the then
Commanding Officer 7015 comb Wksp and (02E)
part II Order No 02E/063/0001/1990. Accordingly
the individual was reverted to the substantive
rank of Sepoy. However since the individual was
a direct entry Havildar, he was again promoted to
the rank of paid acting Havildar with effect from
11 July 1993. The individual was screened by a
duly constituted screening Board held at EME
records during 10 July 2007, however he was not
granted extension of service being not eligible for
grant of extension of two years of service as he
was not meeting the disciplinary criteria in terms
of Para 2(d) (ii) of Appendix „A‟ and Annexure to
Appendix „A‟ of Integranted HQ if MoD (Army)
letter No B/33098/AG/PS-2 (c) dated 21
September 1998.”
14. We are surprised that in the second sentence of the
paragraph it is pleaded: “Accordingly the individual was
reverted to the substantive rank of Sepoy.” Soon thereafter
in the very next sentence it is pleaded : “However since the
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individual was a direct entry Havildar, he was again
promoted to the rank of paid acting Havildar with effect
from 11 July 1993.”
15. There is a contradiction in the second and third
sentence of the paragraph. Admitting, all throughout the
petitioner received salary in the rank of Havildar, but in para
6 to 9 of the counter affidavit it is stated that this was
erroneous. Thereafter, it is sought to be justified that
`88,936/- were liable to be recovered inasmuch as this was
the excess amount received by the petitioner as Havildar.
16. The pleadings in the counter affidavit read a very sorry
picture of the affairs in the legal department of the Indian
Army and we expect better standards from the office of the
Judge Advocate General.
17. Be that as it may, the position therefore would be, that
learned counsel for the respondent concedes that petitioner
is a direct entry in the rank of Havildar and thus could not
be visited with the penalty of reduction in rank. Counsel
concedes that the penalty levied is incapable of being
inflicted.
18. Counsel requests that the department be permitted to
levy an appropriate penalty.
19. It is too late in the day for the department to levy an
appropriate penalty. The wrong committed in 1990 cannot
be permitted to be corrected after 21 years. That apart,
whatever would be the penalty levied it would have to be a
penalty equivalent to or less than the penalty of reduction in
rank. In such scenario the petitioner would certainly be
entitled to a refund of `88,936/- illegally deducted from the
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terminal dues paid to him. It is not in dispute that a Black
Ink Entry would not debar the petitioner to have his service
extended by two years. Thus, even we were to permit the
respondents to levy penalty other than that of a reduction in
rank, as of today, the penalty which could be levied would
be that of a reprimand or a warning i.e. a Black Ink Entry
which would not come in the way of the petitioner to have
his service extended by two years.
20. We would have appreciated the respondents to have
taken corrective action when file was taken up pertaining to
petitioner‟s service be extended by two years. At that stage
the department realized that the penalty levied upon the
petitioner in the year 1990 was not given effect to. It
realized that the penalty was incapable of being given effect
to. Yet, in spite of such realization, the respondents chose to
act illegally by treating the penalty as operative and
deducting `88,936/- on the ground that this was the excess
amount paid to the petitioner who otherwise was required to
be reduced in rank, an act or action which law did not
permit.
21. Thus, the petitioner would be entitled to a declaration
from this Court that he would be entitled to serve for
another two years i.e. up to 31.10.2011.
22. Since the petitioner has been held entitled to serve till
31.10.2011 we dispose of the writ petition directing the
respondents to forthwith reinstate the petitioner as a
Havildar and permit the petitioner to serve as a Havildar till
31.10.2011. We declare that no amount is liable to be
deducted from the dues payable to the petitioner. Since we
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are reinstating the petitioner, the question of his receiving
the balance terminal dues at this stage does not arise and
thus we direct that the terminal dues paid to the petitioner
would be returned by him to the department upon the
department simultaneously reinstating the petitioner.
Needless to state, when the petitioner would finally
superannuate terminal dues will be paid to him and no
money, much less than `88,936/- would be deducted on the
ground that in the past excess salary was paid to the
petitioner. Petitioner would be entitled to back wages and
benefit of continuity in service.
23. The petitioner would be entitled to costs in sum of
`5,500/-.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
APRIL 08, 2011
vld
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