Court No. - 38
Case :- WRIT - A No. - 10759 of 2019 Petitioner :- Raj Nath Mishra Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Shiv Kant Pandey Counsel for Respondent :- A.S.G.I.
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order dated 17.1.2019, whereby representation made by the petitioner on 1.2.2010 has been rejected by the Under Secretary to the Government of India. This order apparently has been passed on the basis of a direction issued by the Division Bench of this Court in Writ Petition No. 69688 of 2010, which was disposed of vide following orders passed on 18.4.2018:-
"We have heard Sri Shiv Kant Pandey, learned counsel for the petitioner and Sri Satish Kumar Rai, learned counsel appearing for the Union of India.
By means of this writ petition, the petitioner has challenged the order of Armed Forces Tribunal,Regional Bench,Lucknow dated 6.10.2010 by which the petition of the petitioner has been rejected as not maintainable and not falling under the category of service related matter. The allegations of the petitioner is that for use of the canteen facility as a retired Junior Warrant Officer, Air Force, he was denied the facility and was manhandled and was put to confinement illegally against which the petitioner made a complaint dated 30.4.2008 to Air Officer Commanding- in-Chief (AOC-in-C), Head Quarter, Central Air Command, Bamrauli, Allahabad, respondent No.3 which was rejected by the order dated 24.12.2009. Against that order, the petitioner filed an appeal before the Armed Forces Tribunal which has also been rejected as not maintainable.
Learned counsel for the petitioner further submits that he has also made a complaint to the Defence Secretary, Ministry of Defence, Govt. of India, New Delhi on 1.2.2010. Whether such a complaint is statutory or not has not been indicated anywhere or has been argued.
Learned counsel for the petitioner further submits that he does not wish to press any other prayer except the prayer No.B which is to the following effect:
"Writ,order,direction in nature of mandamus commanding respondents 1 and 2 to take disciplinary action against the respondent no.5 in accordance with law."
Without going into the merits of the case, if the petitioner has made a complaint to the higher authority, that is, respondent no.1, the said complaint may be considered and decided in accordance with law.
With the aforesaid direction, the writ petition is disposed of."
Petitioner thereafter filed a Contempt Petition stating that the representation had to be decided by respondent no. 1 of the writ petition and that the Under Secretary, who has passed the order, is not competent to do so. The Contempt Petition No. 6116 of 2018 has been dismissed on 24.1.2019 and thereafter the Review Petition No. 1 of 2019 has been dismissed on 6.5.2019. Order dated 6.5.2019 passed in review petition reads as under:-
"Heard learned counsel for the parties.
It is urged by learned counsel for the applicant that the affidavit of compliance is sworn by Commanding Officer HQ CAC (U) Air Force Station Bamrauli, but has not been sworn by the contemnor-Defence Secretary, Ministry of Defence, Government of India. Further, it is contended that the representation of the applicant pursuant to the writ court order has been decided by the Under Secretary to the Government of India and not by the Defence Secretary.
On specific query, learned counsel for the applicant is unable to show any Rule, Regulation/Circular that the Under Secretary to the Government of India is not the competent authority to consider and decide the representation of the applicant.
The review petition being devoid of merit is accordingly dismissed."
It is thereafter that the order dated 17.1.2019 has been assailed in the present writ petition. Before referring to the specific argument advanced on behalf of the petitioner, it would be appropriate to take note of the representation which was directed to be considered and decided under the orders of this Court. Para Nos. 3,5 & 6 of the representation dated 1.2.2010 reads as under:-
"3. That while so doing I was wrongfully by Sqn. Ldr. R. Ghosh then Office-in-Charge of Air Force Canteen Bamrauli, Allahabad. I was badly abused and criminally assaulted by him.
5. That the said conduct of said officer is not only unbecoming on his part but also offence under Section 45 and 71 of the Air Force Act, 1950.
6. That the said conduct of said officer is an offence under Sections 166,323,339,341,349,350,351,355,504,506 and also offence under Sections 340 and 342 of Indian Penal Code (IPC) ,1860."
A perusal of the complaint would clearly go to show that the petitioner alleges various offences to have been committed against him by respondent authorities. It is not in issue that the petitioner is an Ex-Airman and has superannuated in the year 1994. The incident giving rise to making of the representation was of 26.4.2008. For any act of offence, which is stated to have been caused against the petitioner, the remedy of the petitioner would be to approach the appropriate forum as provided under the Criminal Procedure Code/ Indian Penal Code etc. A representation in that regard would not subserve the purpose of the petitioner and filing of this writ petition would not be the appropriate remedy.
Leaving it open for the petitioner to pursue his grievance before an appropriate forum where all such issues can be examined, this petition is consigned to records.
Order Date :- 25.7.2019 n.u.