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CriminalLaw

Illegal termination .Entitled for back wages. Supreme Court

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTIONCIVIL APPEAL NOS.2414-2415 of 2021(@ Special Leave Petition (C)Nos.3747-3748/2019) LAXMAN SINGH VERSUS UNION OF INDIA AND ORS.

 

O R D E R

Leave granted.

The appellant was appointed as ‘Rakshak’ in the Railway Protection Force. While he was on Special Duty in the office of the Chief Train Examiner, Ajmer on 20/21-2-1981 it was found that some articles in the go down were found removed and placed near the fencing. An F.I.R. was lodged on 21.2.1981. Departmental Enquiry was initiated against the appellant for his failure in preventing theft of railway property. The appellant was found guilty of gross negligence in discharge of duties in the Departmental Enquiry. A penalty of reduction of pay to the minimum of time-scale of Rs. 200/- for a period of two years affecting his future increments was imposed. The appellant filed an appeal against the said order of penalty. The Appellate Authority in exercise of powers conferred under Rule 58 of the Railway Protection Force Rules, 1959 enhanced the penalty after issuing a show cause notice to the appellant from reduction of time scale to that of removal from service by an order dated 20.06.1983.The appellant filed a writ petition challenging the order of the appellate authority which was dismissed by the learned Single Judge. The Division Bench of High Court partly allowed the writ appeal filed by setting aside the enhanced penalty of removal. The Division Bench found the penalty of removal to be disproportionate to the delinquency alleged against the writ petitioner. The Division Bench observed that there was no theft of any railway property as the heavy springs were found near the fencing after having been removed from the godown. The Division Bench was of the opinion that the Appellate Authority failed to consider various points raised by the appellant. Having gone through the record and after considering the submissions made on behalf of the appellant and the respondent, we are of the opinion that the penalty of reduction of time scale ofRs.200/- for a period of two years with cumulative effect is also unjustified. The appellant has been out of employment since1983. During the pendency of the matter before the High Court, he attained the age of superannuation and could not be reinstated. The High Court found the appellant to be entitled for all retrial benefits in accordance with the Rules. The High Court granted benefits on notional basis till the date of judgment. In the facts and circumstances of this case, we direct the respondents to pay 33 percent of back wages to the appellant with continuity of service. Needless to say, that the appellant shall be paid full retrial benefits by treating him to be in continuous employment, by giving notional increments and promotion and benefits based on continuity. These arrears shall be paid in 10 weeks. The appeals are accordingly, disposed of. Pending application(s), if any, shall stand disposed of.....................J(L.NAGESWARA RAO)....................J (S. RAVINDRA BHAT) NEW DELHI;09th July, 2021.

 

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CriminalLaw

Discharge from army as habitual offender on the basis of four red ink entries is in violation Article 14 of Constitution of India and is illegal.

THE Hon’ble Supreme Court if India in the land mark judgment in C.A 32135 OF 2013 Veerendra Kumar Dubey. Versus Chief of Army Staff & Ors held that -

“The argument that the procedure prescribed by the competent authority de hors the provisions of Rule 13 and the breach of that procedure should not nullify the order of discharge otherwise validly made has not impressed us. It is true that Rule 13 does not in specific terms do not envisage an enquiry nor does it provide for consideration of factors to which we have referred above. But it is equally true that Rule 13 does not in terms make it mandatory for the competent authority to discharge an individual just because he has been awarded four red ink entries. The threshold of four red ink entries as a ground for discharge has no statutory sanction. Its genesis lies in administrative instructions issued on the subject. That being so, administrative instructions could, while prescribing any such threshold as well, regulate the exercise of the power by the competent authority qua an individual who qualifies for consideration on any such administratively prescribed norm. Inasmuch as the competent authority has insisted upon an enquiry to be conducted in which an opportunity is given to the individual concerned before he is discharged from service, the instructions cannot be faulted on the ground that the instructions concede to the individual more than what is provided for by the rule. The instructions are aimed at ensuring a non-discriminatory fair and non-arbitrary application of the statutory rule. It may have been possible to assail the circular instructions if the same had taken away something that was granted to the individual by the rule. That is because administrative instructions cannot make inroads into statutory rights of an individual. But if an administrative authority prescribes a certain procedural safeguard to those affected against arbitrary exercise of powers, such safeguards or procedural equity and fairness will not fall foul of the rule or be dubbed ultra vires of the statute. The procedure prescribed by circular dated 28thDecember, 1988 far from violating Rule 13 provides safeguards against an unfair and improper use of the power vested in the authority, especially when even independent of the procedure stipulated by the competent authority in the circular aforementioned, the authority exercising the power of discharge is expected to take into consideration all relevant factors. That an individual has put in long years of service giving more often than not the best part of his life to armed forces, that he has been exposed to hard stations and difficult living conditions during his tenure and that he maybe completing pensionable service are factors which the authority competent to discharge would have even independent of the procedure been required to take into consideration while exercising the power of discharge. Inasmuch as the procedure stipulated specifically made them relevant for the exercise of the power by the competent authority there was neither any breach nor any encroachment by executive instructions into the territory covered by the statute. The procedure presented simply regulates the exercise of power which would, but for such regulation and safeguards against arbitrariness, be perilously close to being ultra vires in that the authority competent to discharge shall, but for the safeguards, be vested with un canalised and absolute power of discharge without any guidelines as to the manner in which such power may be exercised. Any such unregulated and uncanalised power would in turn offend Article 14 of theConstitution.13.Coming then to the case at hand, we find that no enquiry whatsoever was conducted by the Commanding Officer at any stage against the appellant as required undercar 5(a) of the procedure extracted above. More importantly, there is nothing on record to suggest that the authority competent had taken into consideration the long service rendered by the appellant, the difficult living conditions and the hard stations at which he had served. There is nothing on record to suggest that the nature of the misconduct leading to the award of red ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force. We must, in fairness, mention that Mr. Maninder Singh, ASG,did not dispute the fact that any number of other personnel are still in service no matter they have earned four red ink entries on account of overstaying leave. If that be so, the only safeguard against arbitrary exercise of power by the authority would be to ensure that there is an enquiry howsoever summary and a finding about the defence set-up by the individual besides consideration of the factors made relevant under the note to para 5(f) of the procedure. It is common ground that a red ink entry may be earned by an individual for overstaying leave for one week or for six months. In either case the entry is a red ink entry and would qualify for consideration in the matter of discharge. If two persons who suffer such entries are treated similarly notwithstanding the gravity of the offence being different, it would be unfair and unjust for unequal cannot be treated as equals. More importantly, a person who has suffered four such entries on a graver misconduct may escape discharge which another individual who has earned such entries for relatively lesser offences may be asked to go home prematurely. The unfairness in any such situation makes it necessary to bring in safeguards to prevent miscarriage of justice. That is precisely what the procedural safeguards purport to do in the present case.

 

14.  Reliance upon the decisions of this Court in the cases referred to earlier is, in our opinion, of no help to the respondent for the same have not adverted to the procedure prescribed for the exercise of the power of discharge. In Union of India v. Corporal A.K. Bakshi & Anr. (supra)the question before this Court was whether an order of discharge passed in pursuance of the Policy for Discharge of Habitual Offenders could be considered a discharge simplicitor as envisaged in 15(2)(g)(ii) or if it would tantamount to termination of service by way of punishment under Rule 18 of the said Rules. The Court came to the conclusion that it was a discharge simplicitor and as such it could not be held as termination of service by way of a punishment for misconduct. This was clearly not a case where the procedure for discharge was not followed. The Court had, in that case, unequivocally held that there was no dispute between the parties that the procedure had been duly followed. Similarly, the decision of this Court in Union of India v. Rajesh Vyas (supra)is also distinguishable. In that case, the discharge order was challenged on the ground that it was passed without regard to the response to the show cause notice filed by the discharge order. Upon a perusal of the material, this Court held that the case was not one wherein the discharge order was passed without application of mind and that there was evidence to show that power was exercised upon consideration of all relevant records. The decision of this Court in Union of India andOrs. v. Dipak Kumar Santra (supra)is also of no relevance to the case at hand as that case dealt with a recruit who had failed twice in clerks’ proficiency and aptitude test and was discharged under Rule 13(3) of the Army Rules. Without adverting to the procedure prescribed or such removal, the discharge was maintained by this Court opining that the discharging authority was empowered to do so under Rule 13(3) of the Army Rules. Reliance upon the recent judgment of this Court in Union of India & Ors.v. Balwant Singh [Civil Appeal No. 5616 of 2015] is also misplaced. The grievance of the respondent in that case, primarily, rested upon the alleged excessive punishment meted out for the red ink entries suffered by him. The respondent also claimed to have been discriminated due to discharge from the Armed Forces. That was also not a case where discharge order was challenged as bad in law on the basis of irregularities nor was it a case where the authority was said to have failed to follow the necessary procedure. The decision of the High Court of Delhi in Surinder Singhv. Union of India (2003) 1 SCT 697,to the extent the same toes a line of reasoning different from the one adopted by us does not lay down the correct proposition and must, therefore, be confined to the facts of that case only. 15.In the result this appeal succeeds and is hereby allowed. The order of discharge passed against the appellant is hereby set aside. Since the appellant has already crossed the age of superannuation, interest of justice will be sufficiently served if we direct that the appellant shall be treated to have been in service till the time he would have completed the qualifying service for grant of pension. No back wages shall, however, be admissible. Benefit of continuity of service for all other purpose shall, however, be granted to the appellant including pension. Monetary benefits payable to the appellant shall be released expeditiously but not later than four months from the date of this order. No costs.”

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ArmedForces

Injury sustained while on Annual Leave is also entitled for Army disability pension

In the Landmark Judgment Hon'ble AFT Lucknow Bench in EX NK Pandu Kumar Reddy's case held "Keeping in view the controversy involved, the question which need to be answered is of three folds :-

(a) Whether, when Armed Forces personnel proceed on annual leave or leave of any kind, he is to be treated on duly?

(b) Whether the injury or death caused, if any, to the armed forces personnel on duty, has to have some causal connection with military service so as to hold that such injury or death is either attributable to or aggravated by military service?

(c) What is the effect and purpose of Court of Inquiry convened after such an injury suffered by armed forces person?

18. In number of cases, the Hon’ble Apex Court and Armed Forces Tribunals have held that when armed forces personnel are availing casual leave or annual leave, she or he is to be treated on duty.

19. As far as causal connection between disability and military duty is concerned, it has been held that for granting disability pension, there must be some causal connection with military duty. In the instant case, a court of inquiry was held and on perusal of court of inquiry it transpires that when incident took place, applicant was returning from Secunderabad after purchasing his train ticket for return journey from Secunderabad to Ambala. Distance from Secunderabad to Ambala is very long and it is not possible to travel on long train journeys without reserved ticket for which the applicant was granted free railway warrant. Hence, in view of this it can be said that there is causal connection between the incident and military duty.

20. As regards question (c), if a causal connection has been found established between the disabilities and military service, the injury shall be treated as attributable to military service and applicant would be entitled to the disability pension. In the instant case, since the applicant sustained injury while returning home after getting reservation ticket to perform journey for joining duty, this act has causal connection with military duty. Hon’ble Apex Court as well as the various Benches of the Armed Forces Tribunal have held that if injury suffered by the individual has causal connection between military duty, resulting in disability, the injury would be considered attributable to or aggravated by military service and individual shall be entitled for disability pension.

21. The law on the point of rounding off of disability pension is no more RES INTEGRA in view of Hon’ble Supreme Court judgment in the case of Union of India and Ors vs Ram Avtar & ors (Civil appeal No 418 of 2012 decided on 10th December 2014). In this Judgment the Hon’ble Apex Court nodded in disapproval of the policy of the Government of India in granting the benefit of rounding off of disability pension only to those personnel who have been invalided out of service and denying the same to the personnel who have retired on attaining the age of superannuation or on completion of their tenure of engagement. The relevant portion of the decision is excerpted below:-

“4. By the present set of appeals, the appellant (s) raise the question, whether or not, an individual, who has retired on attaining the age of superannuation or on completion of his tenure of engagement, if found to be suffering from some disability which is attributable to or aggravated by the military service, is entitled to be granted the benefit of rounding off of disability pension. The appellant(s) herein would contend that, on the basis of Circular No 1(2)/97/D (Pen-C) issued by the Ministry of Defence, Government of India, dated 31.01.2001, the aforesaid benefit is made available only to an Armed Forces Personnel who is invalidated out of service, and not to any other category of Armed Forces Personnel mentioned hereinabove.

5. We have heard Learned Counsel for the parties to the lis.

6. We do not see any error in the impugned judgment (s) and order(s) and therefore, all the appeals which pertain to the concept of rounding off of the disability pension are dismissed, with no order as to costs.

7. The dismissal of these matters will be taken note of by the High Courts as well as by the Tribunals in granting appropriate relief to the pensioners before them, if any, who are getting or are entitled to the disability pension.

8. This Court grants six weeks‟ time from today to the appellant(s) to comply with the orders and directions passed by us.”

22. We have considered the applicant’s case in view of above guiding factors and we find that, applicant was on bona fide military duty when he sustained injury resulting in disability of a permanent nature to the extent of 70%, on account of injuries “Compound Fracture Tibia Fibula (RT) OPTE (ICD CODE-S82.2 and “Foot DEOP (RT) (ICD CODE M21.3)”. The activity in which he sustained injury being connected with his military duty, he is entitled to the disability pension. The mere fact of a person being on 'duty' or otherwise, at the place of posting or on leave, is not the sole criteria for deciding attributability of disability/death. This conditionality applies even when a person is posted and present in his unit. It should similarly apply when he is on leave; notwithstanding both being considered as 'duty'. Perusal of Court of Inquiry reveals that applicant was a disciplined soldier. Unfortunately, he met with accident while returning from Secunderabad after purchasing return journey ticket. Service record of the applicant reveals that he is the resident of Village, Post Office, Police Station and Tehsil - Kothakota, District Wana Parthy, State- Telangana and his District Soldier Board is Mahabub Nagar. After the accident he was admitted in Mahabub Nagar hospital. The circumstances of the incident have causal connection with military service and his disability is considered attributable to military duty and his injuries are considered as connected with military duty. We therefore find that reasons given by the respondents that the disability is not attributable to military service are no reasons in the eye of law.

23. In view of the above, Original Application No. 443 of 2019 deserves to be allowed, hence allowed. The impugned orders dated 04.07.2019 and 14.01.2019 rejecting claim for grant of disability element are set aside. The disability of the applicant is treated to be aggravated by military service. The applicant is already in receipt of service element hence respondents are directed to grant disability element of the pension @ 70%, which shall stand rounded off to 75% from the date of discharge. The entire exercise shall be completed by the respondents within four months from the date of production of certified copy of this order, failing which the respondents shall be liable to pay interest at the rate of 9% to the applicant on the amount accrued till the date of actual payment.

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CriminalLaw

Juvenile Justice Act :Rajasthan High Court : No requirement of law to implead complainant /victim as party while filing bail application

The Hon'ble Rajasthan High Court Jodhpur while hearing the Revisiosn petition for Bail  in S.B. Criminal Revision Petition No. 494/2021 titled as  X S/o Laxman, Versus  State, Through Pp vide judgmnet dated 01/07/2021,Reportable held as under,  " Thus, it is clear that there is no legislative mandate under the Juvenile Justice Act that the victim should be notified before hearing the bail application of a child in conflict with law, be it before the Juvenile Justice Board, Appellate Court or before the High Court exercising the revisional powers under Section 102 of the Juvenile Justice Act.

It seems that without any basis, a practice has been adopted of impleading the complainant as a party in a revision for bail of a juvenile under Section 102 of the Juvenile Justice act. Numerous instances have come before the court, wherein, in cases involving multiple accused, of which few are adults and one is juvenile, the bail applications of the adult offenders are decided much earlier, whereas the juvenile continue to languish in the Observation Home, awaiting service of notice on the complainant. This anomalous situation is absolutely unwarranted and has to be resolved by taking a pragmatic, legal and logical view of the situation.

Thus, the preliminary objection raised by the learned Public Prosecutor that the complainant has to be notified before deciding this revision is turned down.

#Juvenile Justice # Bail to Juvenile # Criminal Justice # Rajasthan High Court #Criminal revision # Criminal Appeal

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