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Ex Nb Risaldar Dilbag Singh vs Union Of India & Ors on 3 March, 2020

$~60.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision:03.03.2020
% W.P.(C) 2475/2020 and C.M. No. 8631/2020
EX NB RISALDAR DILBAG SINGH ….. Petitioner
Through: Mr. Mohd. Azam Ansari, Adv.
versus
UNION OF INDIA ORS. ….. Respondents
Through: Mr. Harish Vaidyanathan Shankar,
Advocate.
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE SANJEEV NARULA

VIPIN SANGHI, J. (ORAL)

1. The petitioner has preferred this writ petition to assail the order dated
09.01.2020, passed by the Armed Forces Tribunal, Principal Bench, Delhi,
whereby his original application assailing his dismissal from service vide
order dated 30.12.2014 has been dismissed.

2. The petitioner seeks a direction for his reinstatement with all
consequential benefits, including back wages, seniority, continuity of
service, promotions, etc. by quashing and setting aside his „Dismissal‟ vide
order dated 30.12.2014, passed by the COAS. In the alternative, he prays
that his dismissal from service be converted to „Discharge‟ from service
with effect from the date of his dismissal, with further direction to the
respondents to release all his entitlements arising on account of „Discharge‟.
Alternatively, he also seeks a direction to convert his „Dismissal‟ to
compulsory retirement/ removal from service from the date of his dismissal,
with a direction to release all his pensionary/ retiral benefits arising out of

W.P.(C.) No.2475/2020 Page 1 of 12
such discharge from service.

3. The petitioner was enrolled in the Army on 24.04.1994. His wife
expired on 20.03.1998 due to consumption of a poisonous substance. A case
of dowry death was registered against the petitioner while he was serving as
a Sepoy. On 22.02.2001, the petitioner was convicted by the Sessions Court
under Section 304B IPC and sentenced to undergo 7 years of rigorous
imprisonment. He appealed against his conviction and sentence before the
Punjab and Haryana High Court. On 02.05.2001, he was released on bail.
He re-joined his duties on 04.05.2001. He continued to serve with the Army
for the next 14 years. On 29.08.2013, the High Court dismissed the
petitioner‟s criminal appeal and affirmed the sentence awarded to him. His
appeal was dismissed by the Supreme Court as well. Consequently, his
conviction and sentence attained finality. He surrendered himself on
17.01.2014, while on leave. After completion of his sentence, the petitioner
was released from jail on 15.08.2015. In the meantime, he was dismissed
from service vide order dated 30.12.2014. The said order of dismissal reads
as follows:

“ORDERS OF THE CHIEF OF THE ARMY STAFF FOR
DISMISSAL FROM SERVICE OF JC-235075A NAIB
RISALDAR DILBAG SINGH OF THE PRESIDENT‟S BODY
GUARD

1. WHEREAS, JC-235075A Naib Risaldar Dilbag Singh of
the President‟s Body Guard was convicted by the Court of
Additional Sessions Judge, Amritsar on 22 Feb 2001 on
charges under Section 304B and Section 498A of the Indian
Penal Code and Sentenced to undergo Rigorous Imprisonment
for seven years. The Appeal CRA No.245-SB of 2001 filed by

W.P.(C.) No.2475/2020 Page 2 of 12
the Junior Commissioned Officer in Hon‟ble Punjab and
Haryana High Court against his conviction has been dismissed
on 29 Aug 2013 and he is undergoing the above said sentence
of „Rigorous Imprisonment for seven years‟ at Central Jail,
Amritsar.

2. AND WHEREAS, considering the nature and gravity of
the offences for which JC-235075A Naib Risaldar Dilbag Singh
has been convicted by the Criminal Court, his retention in the
service is not desirable.

3. NOW, THEREFORE, in accordance with the powers
vested in me under section 20(1) of the Army Act, 1950 read
with Rule 17 of the Army Rules 1954, I hereby order „dismissal
from the service‟ of JC-235075A Naib Risaldar Dilbag Singh.
Signed at New Delhi on this 30th Day of December 2014.”

4. The case of the petitioner before the Tribunal was, and before us is,
that upon grant of bail by the High Court on 02.05.2001 – at the time of
admission of his appeal, he sought to re-join his duties while making a full
and complete disclosure of the fact that he had been convicted under Section
304 B IPC by the Trial Court and that he had been granted bail by the High
Court. The petitioner claimed that he was allowed to re-join his services and
he continued to serve for the next about 14 years. In these circumstances,
the dismissal of the petitioner under Section 20(1) of the Army Act read
with Rule 17 of the Army Rules was unjustified, since the respondents could
have taken a lenient view of the matter and, instead of dismissing the
petitioner, could have discharged him, which would have had the effect of
the petitioner becoming entitled to receive pension and other pensionary
benefits for the length of service rendered by him, which was in excess of 15
years. The petitioner claimed that upon his release on bail, he submitted his

W.P.(C.) No.2475/2020 Page 3 of 12
hand written letter dated 04.05.2001 to Colonel G.S. Malhi, who
acknowledged the same and permitted the petitioner to re-join and directed
that he be taken on the strength of the Unit.

5. In this regard, the petitioner placed before the Tribunal the letter dated
04.05.2001, claimed to have been written by him. He also produced before
the Tribunal, an affidavit of Colonel G.S. Malhi, who had by then retired as
Major General, and who stated that the petitioner duly intimated him about
the fact of his conviction and sentence of 7 years by the learned Sessions
Court, Amritsar on 22.02.2001 and about the fact that he had been released
on bail by the Punjab and Haryana High Court on 02.05.2001. He stated
that since he was the Commanding Officer of the petitioner, he intimated all
the facts to his superior officers higher in the chain, and ordered that the
petitioner re-joins his duties and continues his job in the unit.

6. The submission of learned counsel for the petitioner is that the
Tribunal has erroneously disbelieved the fact that the petitioner had sent the
said communication dated 04.05.2001, even though the same was
corroborated by the affidavit of Major General G.S. Malhi (retired).

7. We have perused the impugned order passed by the Tribunal. So far
as the petitioner‟s submission that he had duly intimated the fact of his being
convicted and sentenced, and of his release on bail by the High Court on
02.05.2001, is concerned, the respondents repeatedly claimed in their
counter-affidavit that the petitioner had suppressed the said fact and not
intimated to the respondents about his conviction. The Tribunal, while
disbelieving the said plea of the petitioner, observed as follows:

W.P.(C.) No.2475/2020 Page 4 of 12

“7. There is, however, a dispute as to whether the applicant
informed the competent authorities regarding his conviction by
the Trial Court and release on bail. Reliance has been placed
by learned counsel for the applicant on Part II Order No 46
dated 16th May, 2001 which records:

“Handed over to Civil Police at Amritsar (PB) for
investigation and trial for the offence under IPC
Section 304 (b)/34. SORS wef 07th April, 1998”.

8. The Other Part II Order No 61 dt 25th May, 2001
records:-

“Released on bail from civil custody (Central Jail,
Amritsar, Punjab) on 02nd May 2001. Granted 7
days Casual Leave from 02nd May, 2001 to 8th
May 2001. TORS wef 09th May 2001.”

9. Learned counsel also referred to a letter dated 04 th May,
2001 sent by him to the CO seeking permission to rejoin duty
wherein he has given the details about the trial being faced by
him and his conviction by the Sessions Court. In this letter he
has also informed that he has been released on bail by Hon’ble
High Court. There is a remark below this letter by Col GS
Malhi : “Swr Dilbagh to rejoin and take him on strength.

10. However, so far as Part II Orders, as referred above, are
concerned, the same does not show that the respondents were
aware about the conviction of the applicant by the Sessions
Court or his release on bail (by Punjab and Haryana High
Court). As regards the letter dated 04th May, 2001, which is
allegedly written by the applicant seeking permission to rejoin,
the respondents filed an additional affidavit/ Surjoinder stating
therein that the copy of the application produced by the
applicant does not have any endorsement or marking of the
concerned branch, date of receipt or the initial of the Second-
in-Command (2IC) on the remark of the Maj Gen GS Malhi,
which is procedure for the first sight dak in the Regiment and it
is alleged that the original of this application does not form

W.P.(C.) No.2475/2020 Page 5 of 12
part of the records held by the respondents. In view of the
foregoing, it is not firmly established as to whether the
respondents were aware of the conviction of the applicant by
the Sessions Court before he was allowed to rejoin the duties.
Otherwise, there was no plausible reason to the respondents to
issue apprehension roll on 28.02.2014 when applicant failed
to join duties or to convene court of inquiry on 18.03.2014 or
to declare him deserter, then sending non commissioned
officer to Tarantaran Police Station, house of the applicant
and Central Jail, Amritsar and thereafter initiating
proceedings for his dismissal. At the most, Part II Order
reveals that he was handed over to the Police for investigation
and trial for an offence under section 304 B IPC and after his
release on bail from civil custody on 02nd May, 2001, he was
granted 7 days Casual Leave from 02nd May 2001 to 08th May
2001.” (emphasis supplied)

8. The Tribunal is the last Court which is entitled to marshal and
appreciate evidence. In judicial review, this Court is not called upon to re-
appreciate the evidence, particularly when the view taken by the Tribunal is
a plausible view. Even otherwise, we are satisfied that the Tribunal
correctly came to the conclusion that there was no official communication
by the petitioner with regard to his conviction by the Trial Court under
Section 304B IPC and about the fact that he was released on bail by the
High Court on 02.05.2001 in his appeal against his conviction. In any event,
the Tribunal has proceeded to consider the issue whether the order of
dismissal passed by the competent authority is liable to be converted into
discharge, even if one were to assume that the petitioner had communicated
to the respondents, the factum of his conviction under Section 304IPC, and
merely on the ground that he had continued to render service for about 14
years even after his conviction. The Tribunal has observed as follows:

W.P.(C.) No.2475/2020 Page 6 of 12

“12. We have carefully gone through the judgement passed by
Hon’ble High Court of Punjab and Haryana in SC Arora’s case
(supra). In this case Hon’ble High Court was considering the
provisions of Punjab Police Rules, 1934 and Punjab Civil
Services (Punishment and Appeal) Rules, 1970. The relevant
portion of the judgement so far as is relevant to the present
purpose is reproduced as under:-

“No doubt, Rule 16.2 of the Punjab Police Rules,
1934, stipulates that an official convicted and
sentenced to imprisonment on a criminal charge
shall be dismissed, however, second proviso to this
very rule gives discretion to the punishing
authority to impose lesser punishment than that of
dismissal “in an exceptional case involving
manifestly extenuating circumstances’: It would,
thus, show that though the normal rule is
dismissal, but at the same time if the circumstances
are exceptional which disclose extenuating
features, the punishing authority can impose
punishment other than that of dismissal as well. Of
course, in such a case, the punishing authority has
not only to record the reasons which would
obviously reflect how it is exceptional involving
manifestly extenuating circumstances, but
punishing authority is also supposed to take prior
approval of the next higher authorities.”

13. As such, even as per this judgement the normal rule in
case of conviction of a criminal charge is dismissal and it is
only in exceptional circumstances that a lesser punishment can
be imposed. In the instant case, there are no exceptional
circumstances which warrant lesser punishment.

14. Even Devraj case (supra) does not help the applicant,
because in that case there was leakage of question papers. As
per the report of the CBI, the petitioner was also responsible in
the leakage. However authorities chose not to proceed against

W.P.(C.) No.2475/2020 Page 7 of 12
him to hold a court martial. Subsequently, on the basis of CBI
inquiry, a charge sheet was filed in a criminal court in which
apart from the petitioner, four other persons were arraigned.
Criminal proceedings initiated against the petitioner resulted in
his discharge. Despite that his services were terminated.
Challenge was laid before the Hon’ble Supreme Court against
the termination. Keeping in view the facts and circumstances of
the case, the termination order was set aside and the appellant
in that case was ordered to be reinstated. Things are entirely
different in the instant case. Conviction of the applicant by the
Sessions Court stands upheld up to Hon’ble Supreme Court.
The other judgements relied upon by the learned counsel for the
applicant also does not help him as the same were rendered on
the factual matrix appearing in those cases. That being so,
there is no justification in interfering with the order of
dismissal of the applicant from service passed by COAS and the
same deserves to be upheld.”

9. The submission of learned counsel for the petitioner is that there are
numerous examples where persons who were convicted of varied offences
were shown sympathetic consideration, and their dismissal was converted
into discharge. In this regard, the following instances were relied upon by
the petitioner:

“(i) Ex-Commodore Sukhjinder Singh Vs UOI (Judgment
annexed with this written submission). In this case, a very
serious crime of developing intimate relationship with a foreign
lady, was committed and petitioner was dismissed from service.
However, Pension was granted by this Hon‟ble Court holding
pension is the property of employee and also observing that 14
dismissed officers were granted pension.

(ii) Ex-Cdr Satyvir Singh Payal Vs UOI (Judgment annexed
with this written submission). In this case also, there was a very
serious charge of moral turpitude of misusing CV (concession
voucher for railway tickets). But yet again this Hon‟ble Court

W.P.(C.) No.2475/2020 Page 8 of 12
granted Pension and Gratuity holding that pension is a
“PROPERTY”.

(iii) Ex-Sgt RK Sutar Vs UOI (Judgment annexed with this
written submission). In this case also a heinous crime of
„Molestation of 6 year Old Child‟ was committed but when
comes to pensionary benefits, Ld. AFT Chennai was lenient and
granted pensionary benefits by converting dismissal into
discharge and against this, UOI‟s appeal to Supreme Court
was also dismissed on 07.03.2014 in D. No. 4860/2014, as
Hon‟ble Supreme Court did not interfere in “Pension Matter”
being “Property”.

(iv) There were total 35 charges against Cpl Madan Kumar of
Air Force in which he was convicted in 19 charges; was also
granted pensionary benefits by this Hon‟ble Court in O.A. No.
No. 318 of 2013 vide judgment dated 17.10.2016 by converting
dismissal into discharge for the purpose of granting pensionary
benefits. Cpl Madan Kumar was even habitual offender having
multiple punishment entries in his service record. Judgment of
above OA No. 318/2013 is also annexed with this written
submissions.

(v) Ashok Vs UOI (Judgment annexed with this written
submission). Again a very serious charge where the individual
was deserter for 3 years from 25.05.2006 to 25.02.2009 but still
pension was granted by Ld. AFT, Regional Branch, Kochi.

(vi) Ex-Nk Manoj Kumar Mishra Vs UOI and Ors (Judgment
annexed with this written submission). In this case also, there
was a serious charge as Naik Manoj was 11 months deserter
from 01.11.2009 to 15.09.2010 and was also 4 times AWL in his
service career previously yet, pension was granted by this
Hon‟ble Court.

(vii) S Muthu Kumaran Vs UOI (Judgment annexed with this
written submissions). In this case a heinous crime of
„Fraudulent Recruitment Racket and obtaining illegal
gratification‟ was committed but when comes to „Pensionary

W.P.(C.) No.2475/2020 Page 9 of 12
Benefits‟, Hon‟ble Supreme Court was lenient held as under
in para 11 of judgment dt 17 Jan 2017:-

11……….In the facts and circumstances of the
present case, we are inclined to modify the
punishment of dismissal from service into
discharge from service. The modification of the
sentence of dismissal from service into that of
discharge will not change the position of the
appellant, so as to claim any re-instatement into
service. Even if he was discharged from service, in
lieu of dismissal from service, the appellant cannot
seek for any employment or re-employment into
the Army. Therefore, there would not be any
grievance for the respondents in the event of
punishment of dismissal being modified into that of
discharge. At the same time, interests of justice
would be served as the appellant would get the
benefits like gratuity and other attendant benefits
for the service rendered by him and the appellant
would also get an opportunity to lead honourable
life in the society.

(h) Hon‟ble Supreme Court in Major G.S. Sodhi Vs UOI (1991)
2 SCC 371 held as under:

“Service Law – Retiral Benefits – Army Officer
dismissed from service by Court Martial. No
punishment of forfeiture of pension or other
service benefits inflicted by Court Martial – Held,
dismissed officer entitled to entire pension,
gratuity and provident fund under the rules –
Dismissal.”

(i) Hon‟ble Supreme Court in Lt. Col. (TS) Harbans Singh
Sandhu Vs UOI and Ors (2002) 1 Supreme Court Cases 427,
held as under:-

“The petitioner, an army officer, had put in about

W.P.(C.) No.2475/2020 Page 10 of 12
27 years of service, but on the eve of his retirement
was posted as Camp Commandant of the NCC
Camp. During this last leg of his career, he was
charged with misappropriation and making false
complaints against his superior officers. A general
court martial acting under the army act, tried him
and imposed a punishment under Section 71(d) of
the army act 1950. He was cashiered. No further
penalty was imposed under section 71 clause (h).
These are agreed facts. ……So he filed the present
writ petition to compel the Government to pay him
what is due by way of gratuity and pension. This
was his property and could be taken away except
by due process of law…………..We direct the
respondent to pay the said sum within three
months today. Accordingly, we allow the writ
petition with costs”.”

10. We have considered the aforesaid submission of learned counsel for
the petitioner. In our considered view, neither of the instances cited by the
petitioner compares with the case of the petitioner, who has been convicted
of a very serious and heinous offence of causing dowry death of his wife
within seven years of marriage, which led to his conviction under Section
304 B IPC. We find that the Tribunal has taken note of the facts and
circumstances of the case, which led to the petitioner‟s conviction. The sum
and substance of evidence against the petitioner was that he forced his wife
to consume a poisonous substance in the presence of other witnesses. The
factual background – duly established, was that the petitioner repeatedly
demanded dowry in the form of a scooter from his wife and in-laws. The
Trial Court also found that the petitioner was cruel towards his wife, since
he did not take her with him to his place of posting.

W.P.(C.) No.2475/2020 Page 11 of 12

11. Each fact situation calls for a graded response depending on the facts
of the case. In the present case, the conviction of the petitioner, as aforesaid,
is in respect of a very serious and heinous offence, which does not compare
with any of the cited offences. We may also observe that outcomes based on
different fact situations do not constitute binding precedents, since, it is the
principle of law/ ratio of the case, which constitutes a binding precedent and
not the outcome of the case. If in a case like the present also, this Court
were to interfere and convert the dismissal into discharge, there would
hardly be any other case which would justify the punishment of dismissal
from service. The object of punishing delinquent employee is not merely to
inflict the punishment on the employee, but also to discipline others in the
organization. We are, therefore, not inclined to interfere with the impugned
order.

12. Dismissed.

VIPIN SANGHI, J.

SANJEEV NARULA, J.

MARCH 03, 2020
N.Khanna

W.P.(C.) No.2475/2020 Page 12 of 12

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