Sepoy Trilok Dutta vs Union Of India Thru. Secy. ...
2023 Latest Caselaw 17832 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:46722-DB
 
Court No. - 1
 
Case :- WRIT - A No. - 5115 of 2023
 
Petitioner :- Sepoy Trilok Dutta
 
Respondent :- Union Of India Thru. Secy. Ministry Of Defence Central New Delhi And 3 Others
 
Counsel for Petitioner :- Umesh Chandra Mishra
 
Counsel for Respondent :- A.S.G.I.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

(1) Heard Shri Umesh Chandra Mishra, learned Counsel representing the petitioner and Shri Surya Bhan Pandey, learned Senior Advocate/Deputy Solicitor General of India assisted by Shri Varun Pandey, representing the respondents.

(2) The instant writ petition under Article 226 of the Constitution of India has been filed by appellant, Sepoy Trilok Dutta, assailing the judgment and order dated 06.02.2023 passed by the Armed Forces Tribunal, Regional Bench, Lucknow (hereinafter referred to as 'the Tribunal'), whereby the Original Application No. 105 of 2018 filed by the petitioner under Section 14 of the Armed Forces Tribunal Act, 2007 against the order of dismissal dated 25.11.2013 and the order of General Officer Commanding-in-Chief dated 18.11.2014 confirming the aforesaid sentence of dismissal in a Summary General Court martial, has been dismissed.

(3) Shorn of unnecessary details, facts giving rise to the instant petition are that the petitioner was enrolled in the Indian Army on 21.10.2003 and was assigned to MAHAR Regiment. On 16.02.2013, the petitioner along with 7 other army personnel were detailed to proceed and report to 51 Rashtriya Rifle (RR) as reliever through 213 Transit Camp, Jammu. During their stay at Transit Camp on 20.02.2013, the petitioner found his companion Sepoy Islam Baris fast asleep. Thus, the petitioner, in order to teach a lesson to his aforesaid companion for being careless, removed all items, which included two Mobiles, his wallet containing Rs. 6300/- cash, ATM Card, PAN Card, Liquor Card and Voter Card etc. from his coat, which was kept besides his pillow.

(4) As the news spread out in the Transit Camp, Sepoy Islam Baris approached the petitioner and gave him his ATM Pin for blocking his ATM Card from being misused. Apparently, the petitioner made withdrawal of Rs. 40,000/- from Sepoy Islam Baris's account. It is the case of the petitioner that he with an intention to return all items including money to Sepoy Islam Baris within one or two days in order to teach a lesson remained silent but when matter of theft was reported to the Commanding Officer of the Unit, then petitioner handed over all items including money to Sepoy Islam Baris.

(5) As per the records of the case, on 09.04.2013, a tentative charge-sheet was served to the petitioner in which the petitioner was charged under Section 52(a) of the Army Act, 1950. Subsequently, another charge-sheet was served to the petitioner, in which following two charges were levelled against him :-

"First Charge

Army Act Section 52 (a)

Second Charge

Army Act Section 52 (a)

(6) Thereafter, the petitioner was tried by the Summary Court Martial on 25.11.2013. It is the case of the petitioner that he was not supplied all the relevant documents necessary for his defence and he was told that, if he pleaded guilty then minimum punishment could be awarded to him under Section 80 of the Army Act and although the petitioner acted accordingly, however the authority found him guilty under Section 52 (a) of the Act. Thus, the petitioner was dismissed from service under the provision of Section 71 of the Army Act, 1950 vide order dated 25.11.2013.

(7) Feeling aggrieved by the proceeding of Summary Court Martial and the order of dismissal dated 25.11.2013, the petitioner had preferred a petition before General Officer, Commanding-in-Chief, which was rejected by the General Officer Commanding-in-Chief vide order dated 18.11.2014.

(8) The petitioner, thereafter, filed Original Application No. 105 of 2015 before the Tribunal challenging the aforesaid orders dated 25.11.2013 and 18.11.2014. The Tribunal has dismissed the original application vide order dated 06.02.2023 holding that the punishment of dismissal is commensurate to his offence and not disproportionate at all. The learned Tribunal, besides returning finding on fact that the aforesaid act of theft was done intentionally, also recorded at paragraph 11 of the impugned judgment as follows:

" 11. We also find that during 10 years of service, the applicant has also been awarded two punishments under Section 63 of Army Act, 1950 on 12.01.2006 and 20.04.2009 for the offences committed by him, hence, his submission that applicant was having an unblemished service record is false. The provisions of Army Rule 111(2), 115(2) & (4) have been complied with and sentence of dismissal is commensurate to his offence and not disproportionate or prejudicial as alleged by the applicant. Hence, the applicant is not entitled the relief prayed in Original Application to quash his dismissal order and to reinstate him in service.

(9) It is this order dated 06.02.2023, which has been assailed in the instant writ petition, seeking to revoke the extraordinary power of judicial review under Article 226 of the Constitution of India.

(10) Learned counsel for the petitioner has submitted that the Tribunal has materially erred in not appreciating the fact that the intention of the petitioner was never to commit theft and as such, in absence of the same, no offence has been committed by the petitioner, but despite that the petitioner has been punished with such a harsh punishment of dismissal from service overlooking his contribution towards his entire service.

(11) The next submission of the learned Counsel for the petitioner is that the order of Summary Court Martial is violative of the principle of natural justice as no opportunity to defend his case has been provided to the petitioner. This aspect of the matter has also been overlooked by the Tribunal while passing the impugned order.

(12) Learned Senior Counsel appearing for the Union of India justified the order of the Tribunal by submitting that sentence of dismissal awarded to the petitioner is just and proper. According to him, the petitioner was provided ample opportunity to defend his case. After looking into the previous two punishments awarded to him on 12.01.2006 and 24.04.2009 for consuming liquor on duty and leaving the premises of Transit Camp without informing the competent authority during his 10 years of service and also the incident of theft admitted by the petitioner, the order of dismissal against the petitioner was passed. He has submitted that while passing the order of dismissal, provisions of Army Act, 1950 was strictly followed and every opportunity was provided to the petitioner. Thus, there is no illegality or infirmity in the impugned order passed by the Tribunal.

(13) Having heard learned Counsel for the parties and going through the record available before us in the instant writ petition, what we find is that the petitioner was charge-sheeted for committing theft, which he had admitted subsequently. The proceedings of Court Martial was initiated against the petitioner in accordance with Act and Rules and after following due process of law, the proceeding of Court Martial was completed and the petitioner was dismissed from service for the misconduct/theft committed by him. The Tribunal has recorded the specific finding of facts on the basis of material on record that the act of theft was done intentionally and not otherwise or could be termed as a prank. Apparently, it is borne out from the records that when the matter was reported to the Commanding Officer of the Unit, the petitioner accepted stealing of wallet containing important cards including cash and returned all items and cash to Sepoy Islam Baris. The Tribunal has also found that during 10 years of service, the petitioner has also been awarded two punishments under Section 63 of the Act, 1950 on 12.01.2006 and 24.04.2009 for the offences committed by him. In these backgrounds, the Tribunal came to the conclusion that the punishment of dismissal is commensurate to his offence and not disproportionate at all and accordingly the Tribunal dismissed the original application vide order dated 06.02.2023.

(14) This court cannot be oblivious to the fact that the learned Tribunal performs a more specialized and integral function in adjudicating the facts and rights of the service persons from the Armed Forces, keeping in view the mandatory requirement of maintaining a certain level of decorum and discipline in the force. This Court, while acknowledging the special function of the Armed Forces and the Armed Forces Tribunal, ought to be cautious and observe certain self-restrain, while entertaining writ petition(s) against the order of the Armed Forces Tribunal, especially in case of Court Marital.

(15) On due consideration, we are in agreement with the lawfulness of the reasoning given by the Tribunal for dismissing the original application filed by the petitioner and as such, we are not persuaded to take any view other than the view recorded by the Tribunal in the impugned order.

(16) The writ petition is, accordingly, dismissed.

Order Date :- 18.7.2023

Ajit/-