Dismissed

Officer-in-Charge v. Rajesh U

Kerala HC16 Jul 2009WA/1396/2009

Case brief

AI extract

What is this about?

Appeal against RSA dismissing petition challenging dismissal from Army service. Court held Central Government has jurisdiction via Article 53(2) to consider pending revision and clarified direction does not mandate personal hearing by Defence Secretary. Appeal dismissed.

What did the court decide?

The writ appeal was dismissed subject to clarification that the Government need not hold a personal hearing but must act within three months.

Officer-in-Charge Vs Rajesh U — Service and Employment | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR

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THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931

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WA.No. 1396 of 2009()

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AGAINST THE JUDGMENT IN WPC.23502/2008 Dated 04/09/2008 AND THE ORDER DATED 19.6.2009 IN R.P.NO.558/2009 OF THIS HON'BLE COURT

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APPELLANTS/ RESPONDENTS

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1. THE OFFICER IN CHARGE ARMY MEDICAL CORPS RECORDS, LUCKNOW.

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2. THE GENERAL OFFICER COMMANDING 31 ARMED DIVISION, C/O.56 APO

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3. THE CHIEF OF THE ARMY STAFF, ARMY HEADQUARTERS, NEW DELHI.

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4. SECRETARY TO DEFENCE, SENA BHAVAN, NEW DELHI.

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5. UNION OF INDIA, REP.BY ITS SECRETARY TO DEFENCE, SENA BHAVAN, NEW DELHI.

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BY ADV. SRI.A.SUDHI VASUDEVAN, ADDL.CGC

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RESPONDENT/ RESPONDENT

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RAJESH.U, S/O.K.UNNIKRISHNAN NAIR, KALAYALAM HOUSE, AIROOVAN P.O, PATHANAMTHITTA DIST.

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BY ADV. SRI. JOHNSON MANAYANI

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.

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W.A.No. 1396 OF 2009

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--------------------------------Dated, this the 16^th day of July, 2009

J U D G M E N T

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Balakrishnan Nair,J.

The respondents in the writ petition are the appellants. The respondent herein filed the Writ Petition challenging the orders passed against him in the disciplinary proceedings, which finally resulted in discharge of the petitioner from service. Ext.P3 is the order, as per which he was removed from service by the 2^nd appellant. He filed an appeal before the 3^rd appellant Chief of the Army Staff. The said appeal was dismissed by Ext.P8. The petitioner claimed, he filed Ext.P9 revision against Ext.P8 before the Government, but no action was taken on it. In the above background, this Writ Petition was filed, challenging, interalia, Exts.P3 and P8 and also seeking a further direction to the Central Government to consider Ext.P9. The case was posted for instructions several times to find out whether Ext.P9 was received and pending. In the absence of any instructions being furnished by the appellants to the Assistant Solicitor General, finally, this Court disposed of the Writ Petition directing the Government to

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W.A.No.1396/2009

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consider and pass orders on Ext.P9. The Writ Appeal is filed raising the following contentions.

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i) This court has no territorial jurisdiction to deal with the grievance of the 1^st respondent as the cause of action for the same arose beyond the territorial jurisdiction of this Court.

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ii) No representation or revision will lie against Ext.P8 before the Central Government under Section 26(5) of the Army Act.

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iii) It is submitted that it is impossible for the Defence Secretary to hear all the representations that may be filed by the personnel under the Army, who are not officers, and who may feel aggrieved by the order of the Chief of the Army Staff.

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We notice that the 1^st respondent/writ petitioner is a dismissed employee of the army. If Ext.P9 revision is maintainable under law, the Central Government's inaction will give a cause of action for the respondent/petitioner to approach this Court to seek a mandamus for the disposal of the same, at the earliest. Since the Union of India functions throughout the territory of India, its inaction in relation to an appeal filed from Kerala by the respondent will definitely give jurisdiction to this Court to entertain a prayer for

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W.A.No.1396/2009

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mandamus to compel the Central Government to consider Ext.P9. Regarding the 2^nd point that under Section 26(5) no revision will lie against Ext.P8, we notice that no such contention was raised before the learned Single Judge. The appellants herein were also not even able to submit whether Ext.P9 was received or pending.

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A close reading of Section 26(5) may create some doubt whether an order in the nature of Ext.P8 could be challenged by moving the Government. But, the Government can issue appropriate directions to the Chief of the Army Staff in view of the provisions contained under Article 53(2) of the Constitution of India. So, the contention of the appellants that the Government have no power to deal with Ext.P9 cannot be accepted. The Government finds, if there are valid grounds for intervention, we are sure the Government can issue appropriate directions to the Chief of the Army Staff to redress the grievance of the respondent/petitioner.

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The direction issued by the learned Single Judge need not be taken as a direction to the Defence Secretary for personal hearing and disposal of Ext.P9. It is only a direction

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W.A.No.1396/2009

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to the Central Government. Decision can be taken in the manner provided in the Rules of business governing such decisions by the Government. In other words, they need not be any personal hearing by the Defence Secretary himself and a personal order passed by the said officer himself.

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In view of the above decision, we find no reason to entertain this Writ Appeal. Accordingly, it is dismissed subject to the above clarification regarding the personal hearing and disposal of Ext.P9. The decision as directed by the learned Single Judge may be taken within three months from today.

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(K.BALAKRISHNAN NAIR, JUDGE)

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(C.T.RAVIKUMAR, JUDGE)

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Officer-in-Charge v. Rajesh U

Case brief

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Officer-in-Charge v. Rajesh U

Case brief

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