Union Of India And Others vs Rajesh Kumar

M.A. No. 860 of 2020:

Keeping in view the reasons indicated in the application, delay in filing the accompanying review application is condoned.

MA stands disposed of accordingly.

R.A. No. 18 of 2020:

This review application has been filed invoking the jurisdiction under Rule 18 of the Armed Forces Tribunal (Procedure) Rules, 2008 seeking review of

an order passed by a coordinate Bench of this Tribunal in O.A. No. 329 of 2010 on 14.11.2011.

Facts in a nutshell go to show that the respondent (original application) was an employee of the Indian Army. While in service, he was discharged

from service by an order passed on 01.04.2010, purportedly on the ground that he has been taken into judicial custody and is involved in a criminal

case initiated at the instance of his father-in-law on 26. 09.2006 arriving out of the First Information Report (FIR) No. 907/2006 for offences under

Sections 304B, 498A read with Section 34 of the Indian Penal Code (IPC).

Be that as it may, when the matter was heard by the Bench and the judgment was passed on 14.11.2011, in Para 17, the following directions were

issued:

In view of the foregoing, the OA is partly allowed. The respondents are directed that the applicant be re-instated in service albeit under

suspension, till such time the criminal case is finalised. During suspension, the applicant be paid subsistence allowance as per norms. This

exercise should be completed within a period of 90 days. No order as to costs.

The aforesaid directions were purportedly on the legal principle that mere pendency of a criminal case cannot be a ground for discharge. It could, at

best, be a ground for keeping an employee under suspension. However, now in this review application filed, Union of India has pointed out to say that

when the aforesaid judgment was rendered by the Tribunal on 14.11.2011, the criminal case, which was instituted in the Court of Additional Session

Judge, Dwarka, New Delhi being Session Case No. 37/2008, was already decided and by a judgment dated 10.10.2011 (Annexure - R2), the

respondent (original applicant) was convicted and the sentence was pronounced on 01.11.2011 vide Annexure - R4, wherein he has been punished

with Rigorous Imprisonment for ten years for an offence under Section 304B-IPC, Rigorous Imprisonment for three years and fine of Rs. 5,000/- for

offences under Section 498A- IPC.

It is pointed out before us that this fact could not be brought to the notice to the Tribunal on 14.11.2011 when the matter was decided and in view of

the above, review is sought for.

Having heard Dr. Mahndiyan, learned counsel for the applicants (original respondents) and Mr. Pandey, learned counsel for the respondent (original

applicant), we are of the considered view to the effect that the criminal case was pending on 14.11.2011 when the judgment was rendered by this

Tribunal in O.A. No. 329 of 2010 is an incorrect statement of fact which has come on record and to that effect, there is an error apparent on the face

of the record. However, the effect of that would be that the benefits granted to the respondent (applicant in OA) by the judgement passed on

14.11.2011 shall be available to him till 10.10.2011 and not thereafter.

Keeping in view the aforesaid, we are of the considered view that the interest of justice would be met in case this application is allowed in part. The

directions contained in Para 17 of the judgment dated 14.11.2011 passed in O.A. No. 329 of 2010 is hereby recalled and modified to the following

extent:

In view of the foregoing discussions contained in the preceding paragraphs, this OA is partly allowed. The respondents are directed to

treat the applicant to have been reinstated in service, albeit under suspension, and as the criminal case has been finalised resulting in his

conviction on 10.10.2011, the applicant's discharge will take effect from 10.10.2011. During the period of suspension, the applicant would

be entitled to all allowances in accordance with the rules and regulations.

With the aforesaid clarifications and modifications to the order passed on 14.11.2011, this review application stands allowed and disposed of.