Anil Kumar Chaubey vs. Union Of India

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ITEM NO.8 COURT NO.2 SECTION XVII

S U P R E M E C O U R T O F I N D I A

Civil Appeal No(s). 6620/2014

ANIL KUMAR CHAUBEY Appellant(s)

VERSUS

UNION OF INDIA AND ORS. Respondent(s)

(with appln. (s) for leave to appeal u/s 31(1) of the Armed Forces Tribunal Act, 2007 and stay and office report)

Date : 20/08/2015 This appeal was called on for hearing today.

RECORD OF PROCEEDINGS

CORAM :

HON'BLE MR. JUSTICE T.S. THAKUR HON'BLE MR. JUSTICE V. GOPALA GOWDA

For Appellant(s) Dr.(Mrs.) Vipin Gupta,Adv. (NP)

For Respondent(s) MS. Shefali Sethi, Adv. Mr. Shailender Saini, Adv. Mr. B. V. Balaram Das,Adv.

UPON hearing the counsel the Court made the following O R D E R

The appeal is allowed in terms of the signed order.

(Shashi Sareen) (Veena Khera) AR-cum-PS Court Master (Signed order is placed on the file)

Signature Not Verified

Digitally signed by Shashi Sareen Date: 2015.09.23 08:04:30 IST Reason:

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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 6620 OF 2014

ANIL KUMAR CHAUBEY ... Appellant(s) Versus UNION OF INDIA AND ORS. ... Respondent(s) O R D E R

This appeal arises out of an order dated 07.02.2012 passed by the Armed Forces Appellate Tribunal, Regional Bench at Lucknow whereby the Tribunal has partly allowed Transferred Application No. 29 of 2010 and while setting aside the conviction of the respondent and acquitting him of the charges directed that the dismissal of the respondent shall be treated as discharge from service. The Tribunal has further directed payment of a sum of Rs. 60,000/- towards compensation besides gratuity and other benefits admissible to him for the seven years service rendered in the army.

The respondent, a sepoy in the Indian Army, was tried summarily and convicted for having falsely accused his superiors of demanding bribe from him. He was sentenced to rigorous imprisonment for a period of three months' besides dismissal from service. Aggrieved he assailed his conviction and sentence by the respondents 3

in Writ Petition No. 6262 of 1991 filed before the Allahabad High Court which was with the setting up of the Armed Forces Appellate Tribunal transferred to the Tribunal's Regional Bench at Lucknow and re-numbered as Transferred Application No. 29 of 2010. Before the Tribunal, the respondent appears to have argued that the finding of guilt recorded by the summary court martial was without any evidence and wholly unsustainable. Several other contentions were also raised including a contention that the commanding officer was biased against him which contention appears to have been given up by the respondent at the hearing before the Tribunal. The Tribunal re-appraised the evidence assembled at the summary court martial and came to the conclusion that the charge framed against the appellant was not proved. The tribunal on that finding set aside the conviction of the appellant and acquitted him of the charge. In para

14 of its order the Tribunal converted the dismissal of the petitioner into discharge with compensation and other benefits admissible under the Rules. The Tribunal said:

"In the circumstances the conviction and sentence of the applicant is set aside and he is acquitted. We direct that the dismissal of the applicant shall be treated as a discharge and the applicant be awarded 4 compensation of Rs. 60,000/-, as he had to undergo three months' RI which was quite

disproportionate be entitled to payment of gratuity and such other benefits which may be permissible him on the basis of approximately 7 years of service rendered by him." The present appeal by leave of this Court under

Section 31 of the Armed Forces Tribunal Act, 2007 assails the correctness of the afore-mentioned order to the extent the tribunal has instead of re-instating the appellant in service with full back wages and other benefits simply directed his discharge with a compensation of Rs. 60,000/-, gratuity and other benefits admissible to him on account of his seven years service rendered in the Army.

We have heard learned counsel for the respondent at some length. No one has appeared on behalf of the appellant but that does not in our opinion necessarily oblige us to dismiss this appeal in default of appearance.

The short question that arises is whether the Appellate Tribunal committed any error in adopting a rather unusal course whereby despite finding the appellant not guilty and acquitting him of the charges denied him the right to re-instatement for continued service in the army. Learned counsel for the respondent was unable to justify the direction issued by the 5 Tribunal as indeed, we too are of the opinion that the direction does not appear to be doing complete justice

to the appellant. We say so because once the Tribunal had taken a view about the guilt or innocence of the appellant, it ought to have issued directions that would logically followed from its conclusion. The direction regarding discharge and compensation of Rs. 60,000/ does not appear to be doing. A sum of Rs. 60,000/ towards compensation in a matter where the appellant was being deprived of not only continuity of service till the order passed by the tribunal but also the pension that he would be legitimately entitled to draw does not appear to be serving the ends of justice. The proper course would in our view have been to direct discharge of the appellant from service from the date of the order passed by the tribunal or the date when the appellant would complete the required 15 years of service which is the qualifying period for earning pension. Such a direction could be passed because of the long gap between the dismissal of the appellant and the date on which the Tribunal found him not guilty. The Tribunal could because of the long interval take a view that the re-instatment of the appellant in his favour after such a long gap may not be feasible. Continuity of service without back wages till the time he completed 15 years 6

of service and thereby became entitled to pension would have been a more pragmatic and just order to pass by the Tribunal.

In the totality of the circumstances, therefore we are of the view that the order passed by the tribunal needs to be suitably modified. We accordingly allow this appeal but only in part and to the extent that the appellant shall be deemed to have been reinstated and discharged from service w.e.f. the date he completes 15 years of service. He shall not however be entitled to claim any back wages for the period between the date he

was dismissed from service and the date he completes the qualifying service for pension. For all other purposes the said period shall count including for purposes of pension, gratuity and other benefits. The appeal is accordingly allowed with the above direction in modification of the order impugned. The competent authority shall now compute and release the pension payable to the appellant expeditiously but not later than six months from the date a copy of this order is placed before it. No costs.

..................J. (T.S.THAKUR)

...................J. (V.GOPALA GOWDA)

New Delhi, 20th August,2015. 7