LPASW/7/2016 of KABINDRA PRASAD SINGH Vs U.O.I.TH.MINISTRY OF DEFENCE AND ORS. on 28 December 2017

1. This appeal is directed against the order dated 21.11.2015 passed by a learned Single Judge of this Court in SWP No. 935/2002, wherein the appellant has sought quashing of his order of dismissal and also the departmental proceedings/ Summary Court Martial proceedings etc.. One of the prayers of the appellant/ writ petitioner was that the dismissal order was not served upon him.

2. Apart from that, the plea taken by the learned counsel for the appellant is that the charge sheet was in respect of the appellant deserting from service whereas the learned Single Judge has gone on an entirely different route by considering his acquittal in an NDPS case on the benefit of doubt. She drew our attention to the charge sheet which is found at page 44 of the appeal paper book. The charge sheet reads as under:- “CHARGE SHEET

The accused No. 13864199-1 Sepoy/Driver (Mechanical Transport) Kabindra Prasad Singh, 5031 ASC Battalion (Mechanical Transport), is charged with: - First Charge: Deserting the service in that he, at field, having been granted leave of absence from 06 Feb 87 to 7 Apr 87 to proceed to his home did not rejoin on expiry of the said leave but absented himself with intent to desert till apprehended at Jammu by Customs (preventive) staff (Civil Police) on 06 Sep 87.

Second Charge: Deserting the Service In that he, at field on 21 Sep 87 having been released from civil police custody, absented himself without leave till apprehended by military police at Jammu on 10 Mar 88.

Sd/-

(JORAWAR SINGH DEOL)

Colonel

Commanding Officer 5031 ASG Battallion (Mechanical Transport)”

3. It is evident from the above that the Articles of charge do not have any reference to the criminal case under the NDPS Act.

4. The learned counsel for the appellant also drew our attention to the fact that the learned Single Judge has placed reliance on Supreme Court decisions, namely, Commissioner of Police, New Delhi v. Mehar Singh, (2013) 7 SCC 685 and State of M.P and ors v. Parvez Khan, AIR 2015 SC 603, which were cases concerning appointment and not dismissal from service.

5. We agree with the learned counsel for the appellant that those cases would have no application to the facts of the present case, which was one of dismissal from service and not one of appointment, and, therefore, the issue of whether the appellant had been acquitted on benefit of doubt or not in an NDPS case would be of no consequence. In any event that was not even the charge that was leveled against the appellant.

6. The learned counsel for the appellant also drew our attention to paragraph no. 7 of the impugned order which also refers to another Supreme Court decision in the case of State ofWest Bengal and ors v. Sankar Ghosh, (2014) 3 SCC 610, where it was held by the Supreme Court that, even after a person is acquitted in a criminal case, there is no bar to the award of departmental punishment. This case also, in our view, is not applicable to the facts of the present case. The Supreme Court observations are in the context of those cases where departmental proceedings and criminal cases arise out of the same set of facts. This is not the case here. In the present case the criminal proceedings were in respect of an NDPS offence and the departmental proceedings pertained to allegations of desertion from service. The two are entirely different and, therefore, the Supreme Court decision in State of West Bengal and ors v. Sankar Ghosh(supra) would also not have application to the facts of the present case.

7. In view of the foregoing and after hearing the learned counsel for the respondents also, we are of the view that this case needs a re-look.

Conclusion

8. Consequently, we set aside the impugned order dated 21.11.2015. Normally, we would have remitted the matter to a learned Single Judge of this Court, however, this Court would no longer be in a position to hear the writ petition, i.e. SWP No. 935/2002, even though its stands restored by virtue of our order, because of Section 34 of the Armed Forces Tribunal Act, 2007, as the same would be treated as a pending matter on the date of commencement of the said Act, the writ petition having been instituted prior to that date. As such, the writ petition would stand transferred to the Armed Forces Tribunal, Srinagar Bench, (Camp Office Jammu). The Registry shall act accordingly.

9. The appeal stands disposed of.

(Sanjeev Kumar) (Badar Durrez Ahmed) Judge Chief Justice Jammu 28.12.2017 Anil Raina, Secy