Supreme Court - Daily Orders
E.K.Sugathan vs Union Of India on 24 November, 2016
Author: Chief Justice
Bench: Chief Justice, D.Y. Chandrachud, L. Nageswara Rao
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1843 OF 2010
E.K. SUGATHAN …APPELLANT
VERSUS
UNION OF INDIA & ANR. …RESPONDENTS
O R D E R
This appeal arises out of a judgment and order dated 2nd December, 2009 passed by the Armed Forces Tribunal, Principal Bench, New Delhi, dismissing T.A. No. 42 of 2009 (W.P. (c) No. 4301 of 1995), filed by the appellant. The facts giving rise to this appeal may be set out in brief as under:
The appellant was serving as a lieutenant colonel in the Indian Army when he was tried by a general court martial for several acts of misconduct resulting in his conviction and sentence of two months’ rigorous imprisonment and cashiering from service. The confirming authority, however, confirmed the sentence only to the extent the Signature Not Verified appellant was directed to be cashiered. Digitally signed by MAHABIR SINGH
The sentence Date: 2017.01.13 16:34:12 IST Reason:
of imprisonment imposed upon the appellant was not confirmed.2
Aggrieved by the order passed by the Court Martial, the appellant appears to have filed a statutory complaint/appeal in terms of Section 164(2) of the Army Act, 1950 on 18th June, 1994. While the said petition was still pending the appellant chose to file Writ Petition No.4657 of 1994 challenging the order passed by the Court Martial. That petition was heard and disposed of by the High Court of Delhi by an order dated 16th November, 1994 with a direction to the respondent to dispose of the statutory complaint/petition filed by the petitioner within a period of two months. The direction so issued attained finality as neither the appellant nor the respondent assailed the same before any higher court.
In the meantime, the appellant filed Writ Petition No. 4706 of 1994 on 16th November, 1994 before the High Court in which the appellant contended that even if the findings recorded by the Court Martial regarding the alleged misconduct were justified, the respondent could not deny to him the pensionary benefits otherwise due to the appellant. The argument, it appears, proceeded on the basis that it was only if the court martial had sentenced the 3 appellant to dismissal with no pension that such benefits could be denied to him. Inasmuch as the Court Martial had not directed denial of pensionary benefits to the appellant, the respondent could not deny the pension due to him. That contention found favour with a Full Bench of the High Court who allowed the petitioner’s Writ petition along with a batch of similar other petitions raising similar questions in terms of a judgment dated 4th March, 1997. The High Court held that pension could be denied to a delinquent army personnel only if the Court Martial specifically directed so. Aggrieved by the judgment, aforementioned, Union of India appealed to this Court to argue that the view taken by the High Court was erroneous. It was also, it appears, contended by the Union that the President was competent to pass a separate administrative order denying pension to a delinquent army personnel even if the guilty was not sentenced to denial of pension. That contention was accepted by this Court in Union of India v. P.D. Yadav (2002) 1 SCC 405 and the order passed by the High Court set aside. The petitioner’s attempt to secure 4 a direction from the High Court and from this Court for payment of pensionary benefits notwithstanding his conviction by the Court Martial was thus finally set at rest with the dismissal of the Writ Petition filed by the appellant.
While the matter aforementioned was still pending in this Court, the statutory complaint filed by the appellant under Section 164 of the Army Act was dismissed by the competent authority in terms of an order dated 22nd March, 1995. Aggrieved by the said dismissal the appellant filed Writ Petition No. 7301 of 1995 before the High Court of Delhi which was transferred to the Armed Forces Tribunal, Principal Bench, New Delhi, for hearing and disposal and registered as T.A.No.42 of 2009. Before the Tribunal it was argued on behalf of the Union that the transfer petition was hit by the principles of res judicata inasmuch as the appellant had earlier approached the High Court for redress who had examined the matter and declined to grant any relief to the appellant. The Tribunal has, as noticed earlier, accepted that contention of the Union and dismissed the transferred petition of the appellant 5 on the ground that the same was barred by the principles of constructive res judicata. The present appeal by special leave assails the correctness of the said order.
Appearing for the appellant, Mr. Jagdish Singh Manhas strenuously argued that the view taken by the Tribunal was ex-facie erroneous. He submitted that the appellant, aggrieved by his conviction and sentence, had filed a statutory complaint which was maintainable and which was pending on the date he filed the first writ petition before the High Court of Delhi. The said writ petition was, as noticed earlier, aimed at challenging the conviction and the sentence recorded by the Court Martial but the High Court had after hearing the matter at length declined to interfere as the validity of the conviction recorded against the appellant was pending consideration before the competent authority under Section 164 of the Army Act. The High Court had instead directed the competent authority to dispose of the representation/petition filed under Section 164 within a reasonable time. It, therefore, had no occasion nor did it actually address the issue 6 whether the conviction and sentence awarded to the appellant suffered from any illegality or irregularity. In the second Writ Petition, the appellant had sought to agitate a limited grievance, namely, his right to receive pensionary benefits which, according to the appellant, were due to him because the Court Martial had not directed denial of such benefits. The High Court had, as noticed earlier, found favour with that contention and accordingly directed grant of the pensionary benefits without going into the question whether the conviction and sentence awarded to the appellant suffered from any illegality. With the reversal of the said judgment of the High Court by this Court, the limited question that stood concluded was whether denial of pensionary benefits was permissible even in cases where the delinquent army personnel were not sentenced to any such conviction. It is according to Mr. Manhas evident from the following passage from the judgment delivered by this Court in P.D. Yadav (supra).
“… … …We may clarify here itself that in these cases we are only considering, so 7 far as they relate to grant or forfeiture of pension in relation to and in the context of Regulation 16(a) of the Pension Regulations for the Army and Regulation 15(2) of the Navy (Pension) Regulations. … … …” (Para 27 at p. 426) The Tribunal, argued by Mr. Manhas, was in error in treating the second round of litigation to be conclusive of the illegality and irregularity of the Court Martial proceedings. The dismissal of the statutory complaint by the competent authority, argued the learned counsel, had given rise to fresh cause of action, which he was entitled to agitate in the second petition. The Tribunal was in that view in error in holding that the second petition was not maintainable. The Tribunal overlooked the fact that the scope of the proceedings before the Tribunal was totally different from the scope of the proceedings that had been earlier concluded with the judgment of this Court.
There is, in our opinion, considerable merit in the submission made by Mr. Manhas. Statutory complaints under Section 164(2) of the Army Act are recognised remedies open to Army personnel, aggrieved 8 of any finding or sentence recorded against them. Inasmuch as the appellant had resorted to the said remedy he had committed no mistake nor was the remedy inadmissible to him. That precisely is the reason, why the High Court had declined to interfere with the findings and sentence awarded to the appellant when it was approached in the earlier round of the proceedings. The High Court had instead rightly directly the competent authority to dispose of the statutory complaint pending before it. The pendency of the said complaint, however, did not and could not prevent the appellant from seeking a redress from the High Court on a basis, different from the one which was the subject matter of the statutory complaint. That is what the appellant had attempted to do when he filed the second writ petition. Mr. Manhas argued and in our opinion rightly so that the appellant could argue that regardless of the validity or otherwise of the conviction and sentence recorded against him, he was entitled to receive the pensionary benefits due to him. The High Court had, in fact, accepted that contention no matter the same was reversed by this Court. All told, the effect of 9 the second round of litigation initiated by the appellant for the grant of pensionary benefits concluded against him and gave quietus but only to the limited controversy whether the appellant could claim pensionary benefits notwithstanding his conviction and the sentence awarded against him. The dismissal of the statutory complaint in the meantime gave rise to an independent cause of action to the appellant to agitate the same in a fresh round of litigation. Inasmuch as the appellant filed a writ petition to challenge the said dismissal, he was entitled to do so in law as the second writ petition was not hit by the principles of res judicata or the principle of constructive res judicata. The scope of the proceedings before the High Court being different in as much the High Court having declined to go into the validity of the conviction and sentence awarded to the appellant in the first petition, once the competent authority took a final view, the appellant was entitled to seek redress against the same in the second petition filed by him. The dismissal of the statutory complaint by the competent authority had given rise to a fresh cause of action, unrelated to 10 the claim, made in the first round of litigation. In the result, we allow this appeal, set aside the order passed by the Tribunal and remit the matter back to the Tribunal for a hearing and disposal of the matter on merits in accordance with law. We make it clear that we have expressed no opinion on the merits of contentions raised before us. The Tribunal is requested to make an endeavour to expedite the hearing and disposal of the matter preferably within a period of six months. No costs.
..................CJI.
(T.S. THAKUR) ....................J. (DR. D.Y. CHANDRACHUD) ....................J. (L. NAGESWARA RAO) NEW DELHI;
NOVEMBER 24, 2016.
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ITEM NO.102 COURT NO.1 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 1843/2010
E.K.SUGATHAN Appellant(s)
VERSUS
UNION OF INDIA & ANR. Respondent(s)
(With appln. (s) for early hearing and stay and office report) Date : 24/11/2016 This appeal was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE L. NAGESWARA RAO For Appellant(s) Mr. Jagdev Singh Manhas,Adv. For Respondent(s) Mr. R. Balasubramanian,Adv.
Mr. Mukesh Kumar Maroria,Adv. UPON hearing the counsel the Court made the following O R D E R In terms of the signed order, this appeal is allowed:
“In the facts and circumstances of the case, we allow this appeal and set aside the order passed by the Tribunal and remit the matter back to the Tribunal for fresh consideration and disposal in accordance with law. We make it clear that we express no opinion on the merits of the contentions raised before us. The Tribunal is requested to make an endeavour to expedite the hearing and disposal of the matter preferable within a period of six months. No costs.” (MAHABIR SINGH) (VEENA KHERA) COURT MASTER COURT MASTER (Signed order is placed on the file) 12 REVISED ITEM NO.102 COURT NO.1 SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 1843/2010 E.K.SUGATHAN Appellant(s) VERSUS UNION OF INDIA & ANR. Respondent(s) (With appln. (s) for early hearing and stay and office report) Date : 24/11/2016 This appeal was called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MR. JUSTICE L. NAGESWARA RAO For Appellant(s) Mr. Jagdev Singh Manhas,Adv. For Respondent(s) Mr. R. Balasubramanian,Adv.
Mr. Mukesh Kumar Maroria,Adv.
UPON hearing the counsel the Court made the following O R D E R In terms of the signed order, this appeal is allowed:
“In the result, we allow this appeal, set aside the order passed by the Tribunal and remit the matter back to the Tribunal for a hearing and disposal of the matter on merits in accordance with law. We make it clear that we have expressed no opinion on the merits of contentions raised before us. The Tribunal is requested to make an endeavour to expedite the hearing and disposal of the matter preferably within a period of six months. No costs.” (MAHABIR SINGH) (VEENA KHERA) COURT MASTER COURT MASTER (Signed order is placed on the file)