# Ramesh Kumar Mishra v. The Union of India and others

- **Citation:** (2003) 1 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003
- **Case number:** Civil Misc. Writ Petition No. 25006 of 2001
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-kumar-mishra-v-the-union-of-india-and-others-39878
- **Pages:** 7

## Headnote

Constitution of India- Article 226-Chief
of Army Staff may be sued any where in
the country and thus this court has
jurisdiction to entertain, consider and
finally decide the writ petition filed in
the year 2001.

Held Para 12

In the aforesaid facts and circumstances
of the case the writ petition is allowed. It
is declared that the petitioner has retired
from the rank of Havaldar group A on
31.8.1997 and is entitled to pension and
other benefits as having retired from the
rank of Havaldar, (MT) group A. The
respondents are directed to re-fix his
pension accordingly, and to pay his
entire arrears, with simple interest as
prevalent @ 10% per annum. The
petitioner shall be entitled to cost of this
writ petition.

## Text

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110 INDIAN LAW REPORTS ALLAHABAD SERIES [2003

Section 3 (a) of the Indian Post
Office Act, 1898 states:-

(a) a postal article shall be deemed
to be in course of transmission by post
from the time of its being to a post office
to the time of its being delivered to the
addressee or of its being returned to the
sender or otherwise disposed of under
Chapter VII."

10. The above provision clearly
indicates that merely by posting a letter it
does not amount to making a declaration
to the designated authority under section
88 of the Finance Act 1988. By merely
posting a letter the sender only puts the
letter in the course of transmission, but
the letter will be deemed to have been
made to the designated authority only
when it reaches him. Moreover, there is a
difference between sending a letter by
registered post and postal certificate. The
petitioner was situate only 50 km. from
the office of the respondent no. 1 and its
officials could have easily have gone to
the office of the respondent no. 1 for the
purpose of making the declaration. It is
also a matter of common knowledge that
postal
certificate
can
easily
be
manufactured with an ante dated date and
hence no reliance can be placed on the
same.

11. Since the declaration reached the
respondent no. 1 after the prescribed
dated it was clearly not maintainable.
Thus there is no force in this petition and
it is dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.1.03

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 25006 of 2001

Ramesh Kumar Misra

...Petitioner
Versus
The Union of India and others

 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Kumar Misra (In person)
Sri P.S. Pandey

Counsel for the Respondents:
Sri A.K. Sinha
Sri K.K. Parikh (Addl. S.C.)

Constitution of India- Article 226-Chief
of Army Staff may be sued any where in
the country and thus this court has
jurisdiction to entertain, consider and
finally decide the writ petition filed in
the year 2001.

Held Para 12

In the aforesaid facts and circumstances
of the case the writ petition is allowed. It
is declared that the petitioner has retired
from the rank of Havaldar group A on
31.8.1997 and is entitled to pension and
other benefits as having retired from the
rank of Havaldar, (MT) group A. The
respondents are directed to re-fix his
pension accordingly, and to pay his
entire arrears, with simple interest as
prevalent @ 10% per annum. The
petitioner shall be entitled to cost of this
writ petition.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. This writ petition was filed
through a counsel of this Court. The
petitioner, however, has chosen to argue it
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1All] Ramesh Kumar Mishra V. The Union of India and others 111
in person. He has prayed for a writ in the
nature
of
mandamus
directing
the
respondents to grant pension of Havaldar
Group A with arrears and medical
disability pension of real condition of his
knee and soldier and C.B.I. investigation
to give all the correct report and decide
the representation dated 23.9.1998 and
further to grant any writ, order or
direction as this Hon'ble Court may deem
fit and proper in the circumstances of the
case.

2. Sri A.K. Sinha, Standing Counsel
was heard for Union of India.

3. The facts in brief are that
petitioner Ex-Havaldar No. 14675948
Ramesh Kumar Misra was enrolled in the
Army on 25.9.1976 in the apprentices
category. He was transferred to men's
service on 30.8.1978 in the trade of
instrument
machine
group
B,
and
promoted to the rank of NK Group B with
effect from 1.1.1988. He passed diploma
upon which he was re- mustered from
Group B to A and appointed to the rank of
HMT in Group A from his initial rank of
Naik on 22.1.1990 and subsequently
promoted to the substantive rank of
Havaldar in Group B with effect from
1.11.1994. He was admitted in Base
Hospital for medical re-categorisation.
After discharge from the hospital, he
absented himself without leave w.e.f.
26.10.1996 to 1.12.1996. Due to his
absence without leave, his appointment of
HMT was relinquished on 26.10.1996 and
he was awarded punishment, 'servere
reprimand' and 14 days pay as fine under
section 39 (a) of the Army Act. He was
discharged from service on 31.1.1997 on
the ground of his medical category lower
than 'AYE' and not upto prescribed
medical military physical standard under
item III (V) of table annexed to Rule 13
(3) Army Rules, 1954. At the time of his
discharge, he was holding substantive
rank of Havaldar in Group B. The Audit
Authority granted him pensionary benefit
in the rank of Naik by PPO dated
12.2.1998. His case was referred to PAO
(OR) EMT with revised LPC cum -Date
sheet for grant of pensionary benefit in
the rank of Havaldar Group B. The
Authority returned the case un-attended
stating that the individual was reverted to
the rank of Naik on 26.10.1996 from
HMT. In addition to service pension, the
petitioner was also granted disabled
pension by PPO dated 14.12.1998.

4. Petition filed writ petition no.
33682 of 1998 which was disposed of by
this Court on 23.10.1998 with a direction
to
decide
petitioner's
representation
within
two
months.
In
compliance
Ministry of Defence, Government of India
vide its letter dated 7.1.1989 addressed to
petitioner with copy of EME Record
rejected
the
representation.
The
Government of India, Ministry of Defence
reverted to each of his grievance as
follows

"(a) Discharge from Service by
Cheating. On being down graded to
permanent Low Medical category, your
officer
Commanding
had
not
recommended your further retention in
service based on your day to day
performance. While not recommending
your retention in service, your officer
Commanding had stated that you had lost
the will to work and refused to do even
light duties. He had also stated that you
had become mentally weak and unable to
take even normal pressures. Hence, you
were discharged from service being
placed in Medical Category lower than
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112 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
"AYE" and not up to the prescribed.
Military Physical standard. Hence no
injustice/cheating :has been done to you.

(b) Non endorsement of Qualification in
DC. As per procedure, civil education
qualifications
recorded
in
service
documents can only be endorsed in the
discharge certificate (DC). Since as per
Service Documents, your qualification
was matriculation and no record of your
passing
intermediate/BA
classes
is
available with the Government, your
qualification was endorsed as Metric in
your Discharge Certificate. Moreover,
diploma in Computer Programming and
instrument Mechanic Technical were
obtained
by
you
through
Army
Institutions and as such, the same can not
be
recorded
as
civil
education
qualification.

(c) Less Disability Percentage, Degree of
disablement was assessed by a duly
constituted medical board of doctors after
physically examining you. Hence your
alleged grievance on this aspect is
misconceived.

(d)

Award
of
Punishment/Hard
Punishment. On being discharged from
Base Hospital, Delhi Cantt. You remained
absent from 26 Oct 96 to 01 Dec 96. For
this you were tried by your Commanding
Officer under Army Act Section 39 (a)
and awarded punishment of 'Service
Reprimand' and '14 days pay fine' which
is one of the minimum punishments
awarded to an NCO. However, due to
your Absence Without Leave from duty,
your paid acting rank of HMT was
automatically relinquished in terms of
Army Instruction 84/68.

(e) Non Payment of Daily Allowances.
As per procedure, the person proceeding
on discharge/retirement are sent home
after finalizing their accounts. The same
procedure would have been followed in
your case also. However, if you think that
some dues have not been settled, you are
advised to forward the details of the same
along with copy of Part II Order to enable
us for taking up the case with audit
authorities.

(f) Non-Disposal of complaints repeated
physical assault (Sodomy),

Complaint made by you against
physical and mental harassment seems to
be a wild allegation. The factual position
of the allegation can not be proved at this
belated
stage
without
medical
examination report. Hence your allegation
appears to be afterthought.

(g) Non Provision of Police Protection:
Allegations made by you regarding
provision of police protection seems to be
wild
allegations.
For
personal
relationship/enmity with some relatives, it
is neither desirable nor possible that
military should be involved. However, if
you have some fear of anti social
elements, police authorities may be
approached.

(h) Non Payment of Due Pension/Arrears
and AGI disability benefit, Concerned
audit authorities have been approached
for early settlement/finalization of your
claim vide Army Headquarters letter No.
B/12048/584/LN/EME Pers dated 30 Oct.
98. Payments will be made to you once
the claims are adjudicated by the audit
authorities.'
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1All] Ramesh Kumar Mishra V. The Union of India and others 113
Petitioner filed second writ petition
no. 29347 of 1999 which was again
disposed of with the direction to decide
petitioner's statutory complaint within
three months time. The said statutory
complaint was decided for and on behalf
of Director General, EME by its letter
dated 29.9.1999 addressed to petitioner. A
decision was taken and communicated in
the same terms as above by the
Government of India in its letter dated
7.1.1999 except on the complaint of non
payment of daily allowance and other
dues
and
non
payment
of
due
pension/arrears and AGI disabled benefit.
In respect of these two matters the
Director General, EME took the following
decisions :

"(e) Non Payment of Daily Allowance
and other dues. The details of outstanding
dues are as under:

(i) Amount on account of 30 days leave
encashment for the year 1989 being
released
in
consultation
with
audit
authorities.
(ii) Daily Allowances (DEFENDANT
No.1 APPELLANT) for 56 days being
released
in
consultation
with
audit
authorities.
(iii) Amount on account of ration money
& CILO with effect from 10 Mar 95 being
released
in
consultation
with
audit
authorities.
(iv) A sum of Rs.9684/- and Rs.2265/- on
account of Ist and 2nd installment of Vth
Pay Commission have been remitted to
you through money order.
(v) Rest of the entitled dues being
released
in
consultation
with
audit
authorities.

(h) Non payment of due pension/arrears
and AGI disability benefits.
(i) Service pension of the rank of Naik
has already been granted to you vide
Pension Payment Order No. S/011691/98
dated 12 February 1998. The case for
grant of pension to the rank of Havaladar
to you is under consideration with audit
authorities. The same will be granted to
you once the final decision in this regard
is taken.
(ii) Disability pension @ Rs.90/- per
month with effect from 01 September
1997 to 30Jul 2002 has been granted to
you vide CCDA (Pension) Allahabad
Pension Payment Order No. D/E/451/98
as per recommendation of the Release
Medical Board.
(iii) A sum of Rs.37206/- (Rupees thirty
seven thousand two hundred six only) on
account
of
Army
Group
Insurance
Maturity Benefits has been paid to you
vide Cheque No. 06559 dated 4Februrary
1988.
(iv) A sum of Rs.35494/- (Rupees thirty
five thousand four hundred ninety four
only) on account of disability cover under
Army Group Insurance Scheme has been
paid to you vide cheque no. 93117 dated
10 November, 1998'

5. From the aforesaid decision on
representation in para d of the CA of Lt.
A.K.
Bhosle,
ARO
EME
Records,
Secundrabad, it appears that his matter
with regard to pension to the rank of
Havaldar was not finally decided as the
matter was pending with the Audit
Authorities. This case was resubmitted to
PAO (OR) EME for the third time vide
letter dated 14.10.2000 for rendering their
audit report and onwards submission to
EME Records. The PAO (OR) EME has
transmitted the case to CDA Secundrabad
on 24.10.2000 alongwith Audit report
which has in turn forwarded the matter to
Army Headquarters vide letter dated
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114 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
20/21/11/2000. However, a decision has
not been taken in the matter so far.

6. Additional Standing Counsel for
Union of India was granted time on
15.3.2002, 8.4.2002, 20.9.2002 but he has
of the been able to produce the decision
taken by Army Headquarters with regard
to the award of pension applicable to post
of Havaldar. In his written submission he
stated that after award of punishment to
petitioner under Section 39 (a) of the
Army Act, petitioner was automatically
relinquished as Havaldar (HMT) as per
Army Instruction No. 84 of 1968, and that
petitioner is not entitled to pension in the
rank of Havaldar. He submits that
petitioner has not challenged the order
dated
7.1.1999
passed
by
Central
Government and that he cannot file
second petition for the same relief.

7. The Court is unable to accept the
submission that after a decision was taken
by the Central Government and Director
General
EME
on
petitioner's
representation vide letters dated 7.1.1999
and 21.9.1999, the case pleaded by him
for award of pension of the rank of
Havaldar has been concluded and that no
further decision is required to be taken by
the Army Headquarters in the matter. A
perusal of the aforesaid decision, on
petitioner's representation, show that the
question with regard to pension to the
rank of Havaldar was reported to be under
consideration with the audit authorities
and that an assurance was given that as
soon as final decision is taken, the
petitioner shall be informed. It appears,
however, that inspite of the report sent by
the
audit
authorities,
the
army
Headquarters has not taken decision in
this regard, nor the court was informed
with any decision taken inspite of several
opportunities given to the counsel for
respondents.

8. Petitioner was substantively
promoted to the rank of Havaldar Group
B with effect from 1.11.1994. He was
admitted for recategorisation to the Base
Hospital and after discharge remained
absent without leave for 37 days for
which he was awarded punishment of
'severe reprimand' and 14 days pay as
fine under section 39 (a). A perusal of
section 39 shows that any person who
commits any of the offence enumerated in
the section shall, on conviction by Court
Martial, be liable to suffer imprisonment
for a term which may extend to three
years or such less punishment as is
mentioned in the Act. Petitioner was
awarded a lesser punishment of severe
reprimand and fine of 14 days pay. He
was not awarded any further punishment
including the punishment of reduction in
rank. The respondents have not denied
petitioner's assertion in para 15 of his writ
petition that petitioner had not been
absent without leave in his entire period
of service except for the aforesaid period
of which he was given the punishment.
The Army Instruction No. 84/68 relied
upon in para 3A of the Counter Affidavit
as well as the letters deciding petitioner's
representation have not been enclosed to
the counter affidavit. These instructions
were not placed on record by the counsel
for respondents. In any case these
instructions, which are in the nature of
instructions, to the Army Officers to carry
out the Act, Rules and Regulations,
cannot over ride the provisions of the Act.
Reduction from the rank to which
petitioner was substantively promoted,
cannot be directed except by way of
punishment in the absence enumerated
either under section 34 to 70 under
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1All] Ramesh Kumar Mishra V. The Union of India and others 115
Chapter VI or by way of punishment
awarded by court martial in accordance
with section 71(1) to 89 provided in
Chapter VII of the Act. The penal
reduction from pay and allowances has
been provided in section 90 to 100 under
Chapter VIII. The Act or the Rules does
not give respondents any such power to
automatically treat his promotion to the
substantive rank of Havaldar to have been
relinquished on the award of punishment
under section 39(a) of the Act.

9. The Army Headquarter has been
repeatedly
approaching
the
Audit
Authorities
to
award
petitioners'
petitioner pension of the rank of Havaldar
but for the reasons which have not been
disclosed to the Court, Audit Authorities
have not given requisite report and that
the Army Headquarters has not taken final
decision in the matter so far. The
petitioner was discharged from service on
31.8.1997 on account of his lower
medical
category.
In
his
document
relating to retirement, he was shown to
have retired from the rank of Havaldar.
There is no pleading or document to show
that any proceedings were initiated to
revert petitioner from his substantive rank
of Havaldar to the rank of Naik. He was
not given any opportunity before he was
sought to be relinquished from his
substantive appointment of Havaldar. The
respondents did not follow the procedure
provided under the Army Act, 1950, and
the Army Rules, 1954 to reduce him to
the rank of Naik.

10. Counsel for respondents made a
faint
submission
challenging

the
jurisdiction of the Court to decide the
mater as the cause of action, according to
him, did not arise in the territory of State
of Uttar Pradesh. In Dinesh Chandra
Gahtori Vs. Chief of Army Staff and
another (2001) 2 UPLBEC 1275 supreme
court held that Chief of Army Staff may
be sued anywhere in the country and thus
this Court has jurisdiction to entertain,
consider and finally decide the writ
petition filed in the year 2001. I am
unable to accept the contention that
Dinesh Chandra Gahtori case has not
taken into consideration, the earlier case
of
Supreme
Court
with
regard
to
territorial jurisdiction of the High Court.
The object and purpose of Dinesh
Chandra Gahtori case is not far to seek.
Army personnel can be posted any where
in the country or abroad, in war or in
peace time according to need of their
deployment. They can be subjected to
actions taken under Army Act, 1950 at
any place where they are serving. They
may not be able to have easy access to
jurisdiction at such places where action
may have been taken against them. In the
circumstances the view that the Chief of
Army Staff may be sued any where in the
country appears to be just and reasonable
and cannot be said to have ignored the
earlier decisions of the Apex Court.

11. Petitioner's representation with
regard to lower medical category have
been considered both by the Central
Government as well as Director General
EME, where it was found that the degree
of disentitlement was assessed by the duly
constituted Board of Doctors for physical
examination, petitioner has not challenged
the finding of the Medical Board or the
aforesaid
letter
deciding
his
representation. The Medical Board found
him
suffering
from
Paranold
Schizophrenia, recurrent dislocation (LT)
Shoulder (OPTD), and Tear and Cruciate
Ligament and Medical Meniscus (RT)
Knee (OPTD). The first and second
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116 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
disabilities were considered by Release
Medical Board as neither altributable to
nor aggravated by military service,
however, third disability was considered
as aggravated due to stress and strain of
service assessed compositely at 40% for
two years and he was granted Rs.90/- per
month
as
disability
person,
after
adjudication, for five years with effect
from 01 September, 1997 and paid cheque
on account of disability under AGI
Scheme. Petitioner was unable to point
out any error in law or violation of any
provision of Act, Rules or Regulations in
making the aforesaid assessment of
disability pension.

12. In the aforesaid facts and
circumstances of the case the writ petition
is allowed. It is declared that the
petitioner has retired from substantive
rank of Havaldar group A on 31.8.1997
and is entitled to pension and other
benefits as having retired from the rank of
Havaldar, (MT) group A. The respondents
are
directed
to
re-fix
his
pension
accordingly, and to pay his entire arrears,
with simple interest as prevalent @ 10%
per annum. The petitioner shall be entitled
to cost of this writ petition.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JANUARY 17, 2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 29545 of 2001

Suresh Chandra and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri B.K. Singh Raghuvansi
Sri Anilanand Misra

Counsel for the Respondents:
S.C.

Constitution
of
India,
Article
226-
Service Law- Daily Wager, working w.e.f.
1982 with Gandak Region Irrigation
Department- service terminated in the
year 1990 due to non availability of
work- admittedly new hands appointed
in
1991
without
considering
the
experience of Petitioner such action of
authorities found in utter violation of
Article 14 of the Constitution- Principle
of last come first go' not followed
direction issued to maintain a seniority
list of Daily Wagers by serving the copy
individually to all the Daily Wagers-
utilize the same either in appointment of
Daily Wagers or on Regular basis.

Held- Para 10

The respondents have felt the need of
engagement of daily wage muster roll
employees and had taken fresh hands in
the year between 1992 and 1997. In the
circumstances, petitioner's termination
of service is held to be violative of Article
14 of the Constitution of India and
against the principles of natural justice
equity, justice and good conscience. In
case the respondents require to engage
fresh hands, petitioners should have
been given an opportunity to serve in the
divisions.

For the reasons aforesaid, the writ
petitions are allowed. The impugned
order
dated
7.7.2001,
terminating
petitioners' services with effect from
16.6.2001
passed
by
the
Executive
Engineer, Drainage Khand, Gorakhpur is
set aside without any benefit or back
wages or any consequential benefit. The
respondents are directed to draw a list of
petitioners as well as the employees
engaged by them on daily wages in
accordance with their date of initial