Union Of India Throu... v. Jeet Bahadur Chand S...

J.S Khehar, C.J (Oral)

The respondent Jeet Bahadur Chand Sepoy No. 4186246 was dismissed from service vide an order dated 27.3.2002 The respondent assailed the aforesaid order of dismissal from service by filing Writ Petition (SS) No. 105 of 2004. The aforesaid writ petition came to be allowed by a learned Single Judge of this Court on 23.3.2006 The order passed by the learned Single Judge is subject matter of challenge at the hands of the Union of India through the instant Special Appeal.

Learned counsel for the appellant during the course of hearing vehemently contended that it was not the case of the respondent before the learned Single Judge that he had not been issued the discharge certificate. It is submitted that no prayer in this behalf was made by the respondent before the learned Single Judge. It is also pointed out that in the pleading of Writ Petition (SS) No. 105 of 2004, no claim was made by the respondent that he had not been issued a discharge certificate. Despite all that, it is the vehement contention of the learned counsel for the appellant that the learned Single Judge without even adverting to the impugned order dated 27.3.2002 allowed the writ petition by holding that the respondent had not been served with the discharge order in terms of the mandate of Rule 12 of the Army Rules, 1954.

When confronted with the submission advanced by the learned counsel for the appellant, the learned counsel for the respondent could not repudiate that the solitary prayer made by the respondent before the learned Single Judge was in respect of the dismissal order dated 27.3.2002 He also could not repudiate that the learned Single Judge while allowing the Writ Petition (SS) No. 105 of 2004 did not advert to the dismissal order dated 27.3.2002 There is, therefore, no question of the learned Single Judge having found fault with the order of dismissal dated 27.3.2002 It is also acknowledged that in the pleadings of Writ Petition (SS) No. 105 of 2004, the respondent had not pleaded that he had not been served with the discharge order nor had he sought his reinstatement on account of the fact that the discharge order had not been issued to him.

In view of the conceded position at the hands of the respondent as has been noticed in the foregoing paragraphs, we are of the view that the instant special appeal deserves to be allowed and the order passed by the learned Single Judge dated 23.3.2006 deserves to be set aside. Ordered accordingly.

In the peculiar facts and circumstances of this case, we are also of the view that the controversy should be readjudicated upon by a learned Single Judge of this Court. Accordingly while setting aside the order dated 23.3.2006, we remand the matter for re-determination by a learned Single Judge of this Court.

Special Appeal stands disposed of in the aforesaid terms.