Milkhi Ram v. UOI and Anr

rg IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 7th lu/v 2011. + W.P.(C) 7039/2010 GUNNER MILKHI RAM Petitioner Through: Mr.Dipak Bhattacharya and Mr.C.L. Kalia, Advocates versus UOI AND ANR Respondents Through: Mr.A.S.Chandhiok, ASG with Mr.Sandeep Bajaj, Ms.Neha Rastogi and Ms.Ria Kaul, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SUNIL GAUR Whether the Reporters of local papers may be allowed to • see the judgment? To be referred to Reporter or not? Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG I J so For orders see W.P.(C) No. 7018/2010. PRADEEP NANDRAJOG PJ JULY 07, 2011 pkb Page 17 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. * N THE HGH COURT OF'DELHI AT NEW DELH Date of Decision: 7th/U/y2011. + W.P.(C) 7018/2010 GUNNER STOREHAND (GD) BANARASI LAL Petitioner Through: Mr.Dipak Bhattacharya and Mr.C.L. Kalia, Advocates versus UOI AND ANR Respondents Through: Mr.A.S.Chandh,iok, ASG with Mr.Sandeep Bajaj, Ms.Neha Rastogi and MsRia Kaul, Advocates + W.P.(C)7039/2010 GUNNER MILKHI RAM ..... Petitioner Through: Mr.Dipak Bhattacharya and Mr.C.L. Kalia, Advocates : versus . . UOI AND ANR Respondents Through:. Mr.A.S.Chandhiok, ASG with Mr.Sandeep Bajaj, Ms.Neha Rastogi and Ms.Ria Kaul, Advocates + W.P.(C) 7040/2010 EX. CAPTAIN SEWA RAM NAGIAL Petitioner Through: Mr.DipakBhattacharya and Mr.C.L. Kalia, Advocates I versus . . . UOI AND A.NR .. Respondents Through: Mr.A.S.Chandhiok, ASG with Mr.Sand.eep Bajaj, Ms.Neha Rastogi and Ms.Ria Kaul, Advocates . WP (C) No. 7018/2010, W.P.(C) No. 7039/210, W.P.(C) No. 7040/2010 W.P.(C) No. 7041/2010 & W.P.(c) No. 7042/2010

. Page 1,1 a + W P (C) 7041/2010 GUNNER SAT PAL Petitioner Through: Mr.Dipak Bhattacharya and Mr.C.L. Kaliâ, Advocates versus UOI AND ANR Respondents Through: Mr.A.S.Chandhiok, ASG with • Mr.Sandeep Bajaj, Ms.Neha Rastogi and Ms.Ria Kaul, Advocates + W.P.(C) 7042/2010 GUNNER HARI SINGH Petitioner Through: Mr.Dipak Bhattacharya and • Mr.C.L. Kalia, Advocates versus UOl AND ANR : ..... Respondents Through: Mr.A.S.Chandhiok, ASGv'ith .Mr.Sandeep Bajaj, Ms.Neha Rastogi and Ms.Ria Kaul, • Advocates CORAM: • HON'LE MR..JUSTKE PRADEEP NANDRAJOG HON 1 BLE MR. JUSTICE SUNL GAUR Whether the Reporters of local papers may be allowed to see.the judgment? • To be referred to Reporter or not? 3 Whether the judgment should be reported in the Digest? • PRADEEP NANDRAJOG P L(Orai)

¶1These 5 writ petitioners and many other officers of the Indian Army were charged by the Military Intelligence for W.P.(C) No. 7041/2010 & W.P.(C) Iio. 7042/2010 Page I 2 espionage. It was alleged that they gave secret infomation to the Pakistan Military pertaining to the Indian Army, which was a threat to the security of the Nation. At a Court Martial held in the year 1976, the petitioners and others were charged and convicted for offence under.

Section 69 of the Army Act read with Section 3 of the Official Secrets Act. All were cashiered from service and were sentenced to undergo imprisonment for various periods. The petitioners filed writ petitions befOre the High Court at Jammu and Kashmir challenging the verdict of guilt pronounced by the General Court Martial. These writ petitions were filed in the year 1978 and were dismissed on 7.4.1983. The judgment attained finality inasmuch as no appeal was filed against the judgment and order dated 7.4.1983. Two officers - Mr. Ranbir Singh Rathaur and Mr. A.K. Rana, who were held guilty by the General Court Martial filed writ petitions in the Delhi High Court, which were dismissed on

23.3.1982 and 4.6.1991 respectively. The 2 officers challenged the decision of the learned Single Judge by filing Letter Patent A p p e a Is. 0 5. Some officers ofthe Indian Army, who were not subjected '-a to a General Court Martial, were dismissed from service in exercise of power vested in the competent authority uhder Section 18 of the Army Act. We may call this power as the administrative power to dismiss a person without a trial or an inquiry.

¶6Several of them filed writ petitions in this Court challenging WP (C) No: 7018/2010, W.P.(C) No.. 7039/2010, W.P.(c) No. 7040/2010 W.P.(C) No. 7041/2010 & W.P.(c) No. 7042/2010 Page I 3 the administrative dismissals, which writpetitions were tagged with the Letter Patent Appeals filed by Mr. Ranbir Singh Rathaur andMr.A.K. Rana. . In the year 1994,, One co-accused Sarwan Dass filed an affidavit stating that Mr. Ranbir Singh Rathaur and Mr. A.K. Rana were wrongly accused. In the said year the Full Bench of this Court gave an opinion pertaining to the scope of judicial review with respect to the scope of judicial intervention against orders of administrative dismissal under Section 18 of the A:rmy Act. On the basis of twin development i.e. Sarwan Dass a co-. accused filing an affidavit in the year 1984 exonerated • Mr.Ranbir Sinh Rathaur and Mr.A.K. Rana, and the decision of the Full Bench, the two filed fresh writ petitions being. W.1: 1 .(C)No.4082/1994 and W.P.(C) No.3063/1995, in, which they re-agitated their conviction by the General Court Martial. The said two writ petitions were tagged alongwith Letter Patent Appeals filed by them against the judgment and order dated

23.3.1982 and 4.6.1981 dismissing the'writ petitions filed by them in which they have challenged the verdict of guilt pronounced against them by the General Court Martial. . The writ petitions filed by the persons against whom, administrative dismissal was effected as also the Letter Patent Appeals filed by Mr.Ranbir Singh Rathaur and MrA.K. Raria as also the two subsequent writ petitions filed by them were allowed on 21.12.2000 and the proceedings at the General Court Martial were set aside. . Union of India challenged the judgment and order of

21.12.2000, by seeking leave to appeal before the Supreme WP (C) No. 7018/2010, w.P.(ç) No. 7039/2010, W.P.(C) No. 7040/2010 Page I 4 Court. Leave was granted. Civil Appeal No.2949-57/2001 are pending before the Supreme Court. OperatiOn of the judgment and order dated 21 12 2000 has been stayed

¶11The petitioners thereafter filed writ petitions in this Court in the year 2001 praying that they were entitled to the same. relief as was granted to Mr.Ranbir Singh Rathaur and Mr.A.K. Rana. These writ petitions were adjourned sine die and upon the constitution of the Armed Forces Tribunal were transferred to the Tribunal for adjudication. 12,. On 22.3.2006, the Suprem.e Court de-linked such appeals which pertained to' writ petitions filed by those who had suffered an administrative dismissal and as regard the judgment allbwing W.P.(C) NO.4082/95 and W.P.(C) No.3063/1995, for the reason Mr.Ranbir Singh Rathaur and Mr.A.K. Rana had earlier litigated and lost the battle, the Supreme Court remanded the mater to this Court to dedde whether the subsequent writ petitioni were maintainable or were barred by res-judicata. On remand, this High Court dismissed the 2 writ peUtions. vide judgment and order dated 20.12.2007 holding the said writ petitions to be barred by res-judicata and hence not • maintainable. The 2. have preferred petition for seeking leave to appeal against the judgment and order of'20.12.2007 and the petitions for special leave to appeal are still pending and s,tated to be listed before the Supreme Court on 1.8.2011. The reasoning of the Armed Forces Tribunal to dismiss the second round of litigation initiated by the writ petitiOners is the , Page 15 same as the',reasoning of the Division Bench of this Court as per order dated 20.12.2007. It has been held, that the bar of res-judicata makes not maintainable the writ petitions. Suffice would it be to state that the view taken by the Tribunal is in conformity with the view taken by the Division Bench as per its,judgment and order dated 20.12.2007. We are respectfully bound by the view on the law of precedent. Accordingly, we find no infirmity in the view taken by the Tribunal and thus, we dismiss the writ petitions. Needless to say that our dismissal would be the passport for the petitioners to approach the Supreme Court and as the ultimate fate would be decided by. the Supreme Court when the petition for special leave to appeal pending before the Supreme Court against the p judgment and order dated 20.12.2007 passed by 'the Di,vision Bench of this Court holding that the bar of res-judicata renders not maintainable subsequent petitions on the same 'cause are decided.

No costs.

1~-. IM ei ..

P'RADEEP NANDRAJOGP A , LGAURJ JULY 07 2011

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