Sewa Ram Nagial v. UOI and Anr

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m THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 7^^ lulv 2011. +

W.P.(C) 7040/2010 EX. CAPTAIN SEWA RAM NAGIAL Petitioner Through: Mr.Dipak Bhattacharya and Mr.C.L. Kalia, Advocates vejsus 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

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Reporter or not?

¶3Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I For orders see W.P.(C) No. 7018/2010. PRADEEP NANDRAJOGJ IIL GAUR, J JULY 07, 2011 pkb 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. f *

m THE HIGH COURT OF DELHI AT HEW DELHt % Date of Decision: 7^^ lulv 2011. f +

W.P.(C) 7018/2010 GUNNER STOREHAND (GD) BANARASl LAL Petitioner Through: Mr.Dipak Bhattacharya and Mr.C.L. Kalia, Advocates versus UOI AND ANR Respondents Through: Mr.A.S.Chandhiok, A5G with Mr.Sandeep Bajaj, Ms.Neha Rastogi and Ms.Ria 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.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 WP CO 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 j 1 ^'1 +

W.P.(C) 7041/2010 GUNNER SAT PAL Petitioner Through: Mr.Dipak Bhattacharya and Mr.C.L. Kalia, Advocates versus , pOI 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 UOI AND ANR ' Respondents Through: Mr.A.S.Chandhiok, ASG with Mr.Sandeep Bajaj, Ms.Neha Rastogi and Ms.Ria Kaul, Advocates CORAM: HOM'BLE MR, JUSTICE PRADEEP i^AMDRAJOG HO!Si'BLE MR, JUSTICE SOWIL GAUR

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Reporter or not?

¶3Whether the judgment should be reported in the Digest? PRAPEEP MAIMDRABQG. I (Orah

¶1These 5, writ petitioners and many other officers of the Indian Army were charged by the Military Intelligence for espionage. It was alleged that they gave secret information to the Pakistan Military pertaining to the Indian Army, which was a threat to the security of the Nation.

¶2At 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.

¶3The 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.

¶4Two 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 Appeals.

¶5Some officers of the Indian Army, who were not subjected to a General Court Martial, were dismissed from service in exercise of power vested in the competent authority under 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 W.p:(C) No. 7041/2010 &W.P.(C) No. 7042/2010 s the administrative dismissals, which writ petitions were tagged with the Letter Patent Appeals filed by Mr. Ranbir Singh Rathaur and Mr. A.K; Rana.

¶7In 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 Army Act.

¶8On the basis of twin development i.e. Sarwan Dass a co-accused filing an affidavit in the year 1984 exonerated Mr.Ranbir Singh Rathaur and Mr.A.K. Rana, and the decision of the Full Bench, the two filed fresh writ petitions being W.P.(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.

¶9The 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 Mr.A.K. Rana 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.

¶10Union 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.(C) No. 7039/2010, W.P.(C) No. 7040/2010 Page.| I 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 200,1 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. )

¶12On 22.3.2006, the Supreme Court de-linked such appeals which pertained to writ petitions filed by those who had suffered an administrative dismissal and as regard the judgment allowing 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 f and lost the battle, the Supreme Court remanded the matter to this Court to decide whether the subsequent writ petitions were maintainable or^were barred by res-judicata.

¶13On remand, this High Court dismissed the 2 writ petitions vide judgment and order dated 20.12.2007 holding the said writ petitions to be barred by res-judicata and hence not maintainable.

¶14The 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 stated to be listed before the Supreme Court on 1.8.2011.

¶15The reasoning of the Armed Forces Tribunal to dismiss the second round of litigation initiated by the writ petitioners is the 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. ,

¶16Suffice 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.

¶17Accordingly, 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 judgment and order dated 20.12.2007 passed by the Division Bench of this Court holding that the bar of res-judicata renders not maintainable subsequent petitions on the same cause are decided.

¶18No costs. n PRADEEP MAS^DRAJOG, JULY 07, 2011 BL GAOR page |