T.A. Nos. 693 and 695 of 2009. Case: 1. Ashok Kumar Rana, 2. Gnr. Storehand (GD) Banarsi Lal Vs 1. Union of India (UOI) through Secretary Ministry of Defence and Chief of Army Staff, 2. Union of India (UOI), [Alongwith T.A No. 717, 720, 727, 738 and 765 of 2009]. Armed Forces Tribunal

Case NumberT.A. Nos. 693 and 695 of 2009
CounselFor Appellant: Deepak Bhattacharya and K. Ramesh, Advs. and For Respondents: R. Balasubramaniam and Naveen Sharma, Advs.
JudgesS.S. Kulshresta, J. and S.S Dhillon, Members
IssueArmy Act - Section 69; Official Secrets Act, 1923 - Section 3(1); Armed Forces Tribunal Act, 2007 - Sections 15 and 25; Armed Forces Tribunal (Procedure) Rules 2007 - Rule 25; Armed Forces Tribunal (Procedure) Rules, 2008 - Rule 22
Judgement DateJuly 26, 2010
CourtArmed Forces Tribunal

Judgment:

(Principal Bench, New Delhi)

  1. In all these appeals, common questions of law and facts are involved and hence they are disposed of by this common judgment. However, in T.A No. 738 of 2009, the findings of the General Court Martial were not challenged before the High Court under writ jurisdiction. In all other appeals, writ petitions were filed and they were dismissed. In all these cases, the preliminary question with regard to the maintainability of these cases is to be considered, at the admission stage.

  2. The appellant in T.A No. 693 of 2009 seeks to direct the respondents to compensate him for having been falsely implicated in an offence under Section 69 of the Army Act read with Section 3(1)(c) of the Official Secrets Act, 1923 and thereby convicting him to undergo rigorous imprisonment for a period of 14 years. According to the appellant, he was not afforded fair opportunity and the GCM arbitrarily held him guilty of the aforesaid charge. The findings caused humiliation and irreparable harm to his reputation. His family members also suffered extreme poverty. In such circumstances, he wants to be compensated for the grave and serious damage, loss and harm to his body, mind, career, property, reputation and dignity by gross violation of his fundamental legal and other statutory rights. The basis of the fresh cause of action for moving this petition has also been highlighted as being based on the judgment of the Delhi High Court in W.P (C) No. 4082 of 1995 filed by other accused persons placed in identical circumstances. Since similar reliefs are sought in all other appeals also, we do not consider it is necessary to reiterate these again.

  3. The petitions are resisted by the respondents contending, inter alia, that the appellants in T.A Nos. 693, 695, 717, 720, 727 and 765 of 2009 have already challenged the findings of the GCM before the Jammu & Kashmir and the Delhi High Courts and so fresh writ petitions are not maintainable as they are barred by the principle of res judicata. The judgment dated 21.12.2000 in W.P (C) No. 4082 of 1995 (Ashok Kumar Rana v. Union of India) was challenged before the Supreme Court in Civil Appeal Nos. 2949-2950 of 2001 (Union of India and Ors. v. Ranbir Singh Rathaur and Ors.). The Supreme Court allowed the said appeal and the case was remanded to the High Court to decide the maintainability of the writ petition. The Delhi High Court re-heard W.P (C) No. 4082 of 1995 and in effect, the judgment dated 21.12.2000 became non est. Further, the Delhi High Court also re-heard W.P (C) No. 3063 of 1995 and dismissed the same by judgment dated 20.12.2007. Since the judgment of the Delhi High Court in W.P (C) No. 4082 of 1995 dated 21.12.2000 no longer survives, the present appeals would automatically fail. Furthermore, the other writ petition - W.P (C) No. 1752 of 2002 (T.A No. 738 of 2009 Ex. Gnr. Hari Singh) was also filed after about 24 years and there was inordinate delay in filing the writ petition. Such delay could not be explained and on the ground of inordinate delay, that writ petition is also not maintainable.

  4. In order to appreciate the points raised by learned counsel for the parties, it would be useful to make a brief narration of the facts. In February 1971, Gnr. Sarwan Dass was cultivated by Pakistan Intelligence. In 1972, Capt. Ghalwat and Gnr. Sarwan Dass crossed the international border. In 1973, Capt. Ghalwat and Gnr. Sarwan Dass were posted in Babina (MP). In 1974, Gnr. Aya Singh was cultivated by Gnr. Sarwan Dass for Pak Intelligence. Capt. Nagial was then cultivated by Aya Singh for Pak Intelligence. In 1975, for the first time, the espionage racket came to be noticed. Aya Singh and Sarwan Dass were arrested. In 1976-77, pursuant to the investigation, three more jawans were arrested...

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