Abhimanyu Dhondiram Lahane vs The Union Of India & Ors
2016 Latest Caselaw 3043 Bom

                                                             4140.2002WP.odt
                                           1




                                                                       
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                              BENCH AT AURANGABAD




                                               
                             WRIT PETITION NO.4140 OF 2002 

              Abhimanyu s/o. Dhondiram Lahane,  
              Age-21 Years, Occu:Nil,  




                                              
              R/o. Makegaon, Tq. Renapur,  
              Dist. Latur                        PETITIONER

                               VERSUS 




                                        
              1]       The Union of India 
                             
                       [Copy served through the 
                       Standing Council for Union 
                       of India in the High Court 
                            
                       Bench at Aurangabad]

              2]       The Commanding Officer,  
                       3 Adm, and DVRS Trg Regt.  
                       Artillery Center,  
      


                       Hyderabad-500031.  
   



              3]       The General / Chief of the 
                       Army Staff of Indian Army,  
                       Army Headquarter, R.K.Puram 
                       New Delhi                    RESPONDENTS 





                                      ...
              Mr.B.R.Kedar, Advocate for the petitioner 
              Mr.Bhushan   B.   Kulkarni,   ASG   for   Respondent 
              Nos.1 to 3.      





                                      ...

                              CORAM:  S.S.SHINDE & 
                                      SANGITRAO S.PATIL,JJ. 

Reserved on : 06.06.2016 Pronounced on : 21.06.2016

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JUDGMENT: [Per S.S.Shinde, J.]:

This Petition takes exception to the

impugned judgment and order dated 23rd July,

2001 passed by the Commanding Officer 3 Adm

and Dvrs Trg. Regt. Artillery Center,

Hyderabad in Summary Court Martial No.

15145400A and the order No.C/07488/DV-3

passed by the Chief of the Army Staff on 31st

May, 2002 in Petition under Section 164 of

the Army Act. The petitioner further seeks

direction that the punishment awarded to the

present petitioner by the respondent nos.2

and 3 is excessive and therefore the

petitioner is entitled to be reinstated in

service with full back-wages, and

consequential benefits with 18% interest.

The Relevant facts in brief, for the purpose of deciding the present Petition are as under:

2] It is the case of the petitioner

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that on 29th September, 2000, he was enrolled

as Gunner Soldier through regular recruitment

process in Army at B.R.O. Aurangabad and sent

for training. He had successfully and without

any break completed the training and served

with the Indian Army up to 23rd July, 2001. It

is further the case of the petitioner that

before joining the Army, he had prosecuted

his studies at taluka place, which is far

away from his village. According to the

petitioner, due to group politics in his

village, the persons from opposite party

lodged a false criminal complaint against the

petitioner and his family members with an

intention to harass them even though the

petitioner was not present in the village at

the relevant time, and his father was dealing

with the case since he was minor, and not

residing in the village nor attending the

court any time. Therefore, the petitioner was

not really concerned with the criminal

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proceeding when he was enrolled in the Army.

After his enrolment, the record from the

Police Station was called by the Army Office

and in the said record it was found that the

Regular Criminal Case No.147/1999 was pending

against the petitioner for the offences

punishable under Section 326, 324, 504, 506

r/w. 34 of IPC. As the consequence of which

the Commanding Officer had framed the

tentative charge against the petitioner under

Section 44 of the Army Act, 1950 on 9th May,

2001 for giving negative answer at the time

of enrolment when query was put to him that

'Have you ever been imprisoned by the Civil

power or are under trial for any offence or

has any complaint or report been made against

you to the Magistrate or Police for any

charge?'.

3] It is the case of the petitioner

that without following the proper procedure

and provisions of the Army Act and Army

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Rules, the Summary Court Martial was

conducted against the petitioner and he has

convicted for one months rigorous

imprisonment and also has been dismissed from

service by the order in Summary Court Martial

No.15145400A on 23rd July, 2001.

4]

It is further the case of the

petitioner that though he has already

undergone one month rigorous imprisonment, he

has challenged the validity of the order of

conviction and dismissal dated 23rd July, 2001

in Summary Court Martial No.15145400A before

the Commander in Chief of the Army in

Petition under Section 164 of the Army Act.

However, the Appellate Authority rejected the

same without recording any reasons and

without considering the legal provisions.

Hence this Petition.

5] The learned counsel appearing for

the petitioner submits that the questions

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which are required to be asked to the

candidate while enrolling him are provided

under Appendix-I Form No.II of Army Rules of

1954. In the said Appendix, the question no.

7 is regarding the order of imprisonment

passed by the Civil power and the same does

not cover query regarding any pending

complaint or trial. Therefore, the punishment

provided under Section 44 of the Army Act can

be awarded only in respect of the false

answers given in respect of questions

provided under Appendix-I, Form No.II. It is

submitted that, before conducting Summary

Court Martial and imposing punishment on

delinquent, it is necessary to ask him that,

whether he objects to be tried by any Officer

sitting in Court Martial. However, the said

procedure was not followed. It is submitted

that the Judicial Magistrate First Class at

Ahmedpur acquitted the petitioner in RCC No.

147/1999. The learned counsel invited our

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attention to the provisions of Section 44 of

the Army Act and submits that on plain

reading of the said provision, in cases where

the candidates giving false answer wilfully

at the time of enrolment, the punishment is

provided. The petitioner being unaware of the

pending criminal case and below 18 years of

age, while answering the question no.7,

answered the same in negative. Therefore, the

act of the petitioner was not wilful so as to

attract the provision of Section 44 of the

said Act. In case the Commanding Officer was

of the opinion that charge deserved to be

proceeded with and not otherwise, the case

should have been referred to the Superior

Authority and he himself should not have

decided the case and pass the order of

dismissal for punishing the delinquent. The

learned counsel for the petitioner pressed

into service the provisions of Rule 17 of the

Army Rules, 1954 and submits that, no person

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shall be dismissed or removed from the

service under Section 20 of the said Act,

unless he has been informed of the

particulars of the case and action likely to

be taken against him and he is given

reasonable time to reply in writing. Before

ordering the Court Martial every charge

should be heard in the presence of the

accused and he should be given full liberty

to call any witness in his defence and cross

examine witnesses. However, the said

procedure has not been followed. No prior

warning of trial as provided under Rule 34 of

the said Rules was given to the petitioner,

nor documentary evidence supplied to him as

provided under Rule 25 of the said Rules.

The defence of the petitioner was not

properly considered by the Commanding

Officer, and therefore, the order passed by

him is bad in law. It is submitted that for

one offence petitioner cannot be punished

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under Rule 65 by imposing one month rigorous

imprisonment and dismissal from service. It

was necessary for the Authority to consider

the provision of the Probation of Offenders

Act, 1958, keeping in view the antecedents of

the petitioner that there was no conviction

for any offence to his credit. The Authority

did not follow the provisions of Article 311

of the Constitution of India. The learned

counsel appearing for the petitioner relied

upon the judgment of the Supreme Court in the

case of Ex.Naik Sardar Singh Vs. Union of

India1 and submits that, while awarding

punishment the doctrine of proportionality

has to be followed. He also pressed into

service the judgment of the Supreme Court in

the case of Ranjit Thakur Vs. Union of India

and others2 and submits that while conducting

proceedings of Summary Court Martial for

imposing punishment, the procedural

1 AIR 1992 SC 417 2 AIR 1987 SC 2386 (1)

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safeguards have to be followed. The

delinquent need to be asked whether he

objects to be tried by any officer sitting at

Court Martial, in case he is not asked then

proceedings stands vitiated as there is no

fair trial.

6]

The learned counsel further invites

our attention to the unreported judgment of

the Division Bench of the Bombay High Court,

Bench at Aurangabad in the case of the State

of Maharashtra Vs. Balu in Writ Petition No.

1994 of 2002, decided on 29.10.2014, and

submits that, in the similar fact situation,

the Division Bench of this Court in the case

of Commissioner of Police and Ors. Vs.

Sandeep Kumar3 has taken a view that, the

incident that took place in the petitioner's

life particularly when he was young, should

be condonable. Therefore, the learned counsel

for the petitioner relying upon the pleadings

3 2011 [4] SCC 644

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in the Petition, annexures thereto and

relevant provisions of the Army Act and the

Rules and the Judgment of the Supreme Court

in the case of Ex.Naik Sardar Singh Vs. Union

of India [supra] and Ranjit Thakur Vs. Union

of India and others [supra] and the High

Court in the case of State of Maharashtra Vs.

Balu [supra] submits that, the Petition

deserves to be allowed.

7] On the other hand the learned

counsel appearing for the respondents invites

our attention to the reasons recorded by the

General Chief of the Army Staff in his order

dated 31st May, 2002 and submits that the

Appellate Authority has given cogent reasons

and confirmed the order of sentence of

Summary Court Martial held on 23rd July, 2001.

It is submitted that, the petitioner was

arraigned on a charge under Section 44 of the

Army Act for giving at the time of enrolment

a wilfully false answer to a question set

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forth in the prescribed form of enrolment

which was put to him by the enrolling Officer

before whom he appeared for the purpose of

being enrolled, particulars of the charge

averred that while being enrolled as Branch

Recruiting office, Aurangabad, on 29th

September, 2000, when he appeared before Ris

Maj VN Singh, Assistant Recruiting Officer

for the purpose of being enrolled for service

in the Regiment of Artillery to the question

put to him, "Have you ever been imprisoned by

the civil power or are under trial for any

offence or has any complaint or report been

made against you to the Magistrate or police

for any charge?, answered "NO", where as

cases under Section 326, 504, 506 and 34 of

IPC were registered against his name as per

the verification by the Supdt. of Police,

Latur, Maharashtra. The accused pleaded 'Not

guilty' to the charge. He further submits

that, the Court after examining the

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prosecution witnesses, found the petitioner

'Guilty' to the charge and sentenced him to

suffer rigorous imprisonment for one month in

civil prison and to be dismissed from the

service. It is submitted that, while

exercising the writ jurisdiction limited

judicial review is permissible. The learned

counsel placed reliance upon the ratio laid

down in the case of Shri Sanjay Marutirao

Patil Vs. Union of India in Writ Petition No.

423 of 2005, decided on 31.01.2008 and

submits that, the order passed by the

respondent authorities is within

jurisdiction, and therefore, no interference

is warranted in the said order. He further

placed reliance in the case of Shri Shantilal

Nagarwal Vs. Union of India in Writ Petition

No.292 of 2003, decided on 19.09.2008, and

submits that, the punishment imposed upon the

petitioner is not disproportionate and his

dismissal from the service has been rightly

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ordered by the respondent authorities. The

learned counsel further placed reliance on

the exposition of law in the case of Daya

Shankar Yadav Vs. Union of India and Ors.4

and submits that, while considering the

provisions of Central Reserve Police Force

Act and the Rules thereunder, the Supreme

Court has taken a view that, the termination

of the services of the petitioner therein on

the ground that he had given false

information is proper. Therefore, he submits

that, the Petition may be rejected.

8] We have heard the learned counsel

appearing for the petitioner and the learned

counsel appearing for the respondents. With

their able assistance, carefully perused the

pleadings in the Petition, annexures thereto,

the relevant provisions of the Army Act and

the Rules and also the Judgments of the

Supreme Court and the High Court cited across

4 2011 AIR SCW 396

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the bar by the learned counsel appearing for

the parties. While considering the case of

the petitioner, this Court is bound to keep

in view the observations of the Supreme Court

in para 42 of its Judgment in S.N.Mukherjee

Vs. Union of India. The Division Bench of

this Court in the case of Shri Sanjay

Marutirao Patil [supra] while dealing with

somewhat similar controversy as has arisen in

the present case in para 32 held thus:

32. The Apex Court in paragraph 42

of its judgment in S.N.Mukherjee v. Union of India MANU/SC/0346/1990 : 1990CriLJ 2148a has observed that

the Constitution contains special provisions in regard to Armed Forces. Chapter III of the Constitution granting fundamental

rights is restricted or abrogated in respect of members of armed forces under Article 33 of the Constitution. The appellate jurisdiction of the Apex Court under Article 136 of the Constitution has

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been excluded in relation to judgments under the Army Act.

Similarly the supervisory jurisdiction of the High Court under Article 227 (4) is excluded in

matters relating to armed forced. Only the power of judicial review under Articles 32 and 226 of the

Constitution to grant appropriate

relief in cases of denial of fundamental rights or if the

proceedings suffer from a jurisdictional error or any error apparent on the face of the record

remains for being agitated. The

finding of the Court of Inquiry cannot, therefore, be gone into. The petitioner's Advocate has fairly

not sought to rely upon those proceedings. All that has to be seen is whether the administrative action could be initiated after the

Summary Court Martial proceedings were completed and whether due procedure was followed thereat as in the case of Major Suresh Chand Mehta v. The Defence Secretary, (U.O.I.) and Ors. MANU/SC/0129/1991 : AIR

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1991 SC 483 followed in Ram Sunder Ram v. Union of India and Ors. 2007

DGLS 751.

Therefore, while exercising the writ

jurisdiction under Article 226 of the

Constitution of India judicial review is

available to the extent stated by the Supreme

Court as stated herein above.

9] In the facts of the present case,

admittedly, the petitioner was an accused in

RCC No.147/1999 for the offences punishable

under Section 326, 324, 504, 506 r/w. 34 of

IP Code. The relevant question which was

asked to the petitioner during verification

was that, "Have you ever been imprisoned by

the civil power or are under trial for any

offence or has any complaint or report been

made against you to the Magistrate or police

for any charge? While answering the said

question, admittedly, the petitioner answered

"No". Therefore, the petitioner had given

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false information. The Supreme Court in the

case of Daya Shankar Yadav [supra] while

considering the provisions of the Central

Reserve Police Force Act and the Rules

thereunder, in para 15 and 16 held thus:

15. But in this case, the appellant is not entitled to any benefit of

doubt on the question whether he knew the meaning and purport of

questions 12(a) and (b). Even assuming that there was ambiguity in the English version of the

questions, a reading of the Hindi

version of the questions shows a clear indication of the information that was required to be furnished by

the declarant. The appellant read the questions in Hindi and answered them in Hindi. We extract below an

English translation of query 12(a) in Hindi to show that there was no ambiguity in regard to the question :

English Translation of the question in Hindi

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"Have you ever been arrested for any

offence or have been prosecuted or have been taken in custody or have been released on bail or have been

fined/convicted by court of law or have been debarred/disqualified by any Public Service Commission from

appearing at its examination/

selection or debarred from taking any examination/restricted by any

university or any other educational authority/institution?"

(Emphasis supplied)

The fact that a criminal case was

registered against the appellant is not disputed. The fact that no criminal case was pending against

him, when he gave the verification declaration in the year 2004, or the fact that he was not convicted or

fined or bound down in any case, loses relevance, when he clearly suppressed the material fact that he was prosecuted and thereby made a false statement. Though the English version of the questions could have used a little more clarity, we

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cannot agree with the contention that he was misled into answering

the question wrongly, as the Hindi version of the questions which were answered by the appellant did not

suffer from any vagueness or ambiguity.

16. We are satisfied that the

appellant had knowingly made a false statement that he was not prosecuted

in any criminal case. Therefore, the employer (CRPF) was justified in dispensing with his services for not

being truthful in giving material information regarding his

antecedents which were relevant for employment in a uniformed service, and that itself justified his

discharge from service.

Consequently, we dismiss this appeal as having no merit.

The order passed in the case of

Commissioner of Police and others [supra] on

which heavy reliance has been placed by the

petitioner does not take into consideration

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the law laid down by the Supreme Court in the

following reported cases; (i) in the cases of

R.Radhakrishnan Vs. Director General of

Police & Ors.5, (ii) Union of India & Ors.

Vs. Bipad Bhanjan Gayen6, (iii) Kendriya

Vidyalaya Sangathan Vs. Ram Ratan Yadav7,

(iv) Delhi Administration through its Chief

Secretary and others Vs. Sushil Kumar8.

10] The Supreme Court in the case of

Delhi Administration through its Chief

Secretary and others Vs. Sushil Kumar [supra]

held that, verification of the character and

antecedents is one of the important criteria

to test whether the selected candidate is

suitable to a post under the State. Though

the respondent was found physically fit,

passed the written test and interview and was

provisionally selected, on account of his

antecedent record, the appointing authority

5 AIR 2008 SC 578 6 2008 AIR SCW 4058 7 AIR 2003 SC 1709 8 [1996] 11 SCC 605

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found it not desirable to appoint a person of

such record as a Constable in the disciplined

force. The view taken by the appointing

authority in the background of the case

cannot be said to be unwarranted. The

Tribunal, therefore, was wholly unjustified

in giving the direction for reconsideration

of his case. Though he was discharged or

acquitted of the criminal offences, the same

has nothing to do with the question. What

would be relevant is the conduct or character

of the candidate to be appointed to a service

and not the actual result thereof. If the

actual result happened to be in a particular

way, the law will take care of the

consequences.

The Supreme Court in the case of

Kendriya Vidyalaya Sangathan Vs. Ram Ratan

Yadav [supra] held, a criminal case was

pending on the date when the respondent

filled the attestation form. Hence the

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information given by the respondent as

against column Nos. 12 and 13 as "No" is

plainly suppression of material information

and it is also a false statement. The

information in the said columns are sought

with a view to judge the character and

antecedents of the respondent to continue in

service or not. Therefore, in the facts of

that case it is held that, the dismissal from

service was proper.

The Supreme Court in the case of

R.Radhakrishnan Vs. Director General of

Police & Ors. [supra], while considering non

disclosure of the material fact as to

involvement of the applicant in criminal case

that too a cognizable offence under Section

294 (b) of IPC. When the applicant applied

for the post of Fireman amounts to

suppression of material fact, and therefore,

question of exercising an equitable

jurisdiction in favour of the applicant would

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not arise. While considering the provisions

of Railway Protection Force Act and the

Rules, the Supreme Court in the case of Union

of India & Ors. Vs. Bipad Bhanjan Gayen

held that, Probationer Constable withheld

relevant information, as to his involvement

in criminal cases, while filing attestation

form was not proper. An employment as a

Police Officer presupposes a higher level of

integrity as such a person is expected to

uphold the law, and on the contrary, such a

service born in deceit and subterfuge cannot

be tolerated. Therefore, it was held that,

the service of termination of the respondent

was proper. The Supreme Court in the case of

Daya Shankar Yadav Vs. Union of India and

ors. [supra] has taken into consideration the

ratio laid down in judgments referred above.

Therefore, this Court is bound by the

exposition of law laid down by the Supreme

Court in the aforementioned judgments.

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11] At this juncture, it would be apt to

reproduce herein below the provisions of

Section 44 of the Army Act, 1950, which reads

thus:

44. False answers on enrolment. - Any person having become subject to this

Act who is discovered to have made at

the time of enrolment a wilfully false answer to any question set forth in the prescribed form of enrolment which has

been put to him by the enrolling officer before whom he appears for the purpose of being enrolled shall, on

conviction by Court-Martial, be liable

to suffer imprisonment for a term which may extend to five years or such less punishment as is in this Act mentioned.

As already discussed, admittedly,

the petitioner did not disclose about

registration of the offence against him and

pending criminal case. Therefore, the

respondent authority has rightly invoked the

provisions of Section 44 of the Army Act,

1950 and rightly convicted him for the said

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offence. The said conviction does not call

for any interference.

12] The learned counsel for the

petitioner submits that the sentence /

punishment awarded to the petitioner is harsh

and excessive. He submits that the petitioner

has been wrongly awarded two punishments for

the offence under Section 44 of the Army Act,

1950, though, the nature of the offence is

not serious or heinous. We find substance in

this contention. As per Section 44 of the

Army Act, a person, who is found to be guilty

under the said Act, on conviction by Court-

Martial, is liable to suffer imprisonment for

a term which may extend to five years or such

less punishment as is mentioned in the said

Act. The Summary Court-Martial sentenced the

present petitioner to suffer rigorous

imprisonment for one month and dismissal from

the service. The dismissal from the service

is one of the punishments prescribed under

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clause (e) of Section 71 of the Army Act. As

per Section 72, a Court-Martial may, on

convicting a person of any of the offences

specified in sections 34 to 68, both

inclusive, award either the particular

punishment with which the offence is stated

in the said sections to be punishable, or, in

lieu thereof, any one of the punishments

lower in the scale set out in section 71,

regard being had to the nature or degree of

the offence. A Court-Martial may award a

sentence vide Section 73 of the Army Act, in

addition to, or without any one other

punishment, the punishment specified in

clause (d) or clause (e) of section 71 and

any one or more of the punishments specified

in clauses (f) to (l) of that section.

13] Considering nature of the offence,

the Court Martial is expected to award

adequate sentence / punishment. In the

present case, as seen from the facts stated

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in the Petition, the petitioner was confused

by the complex question No.7 and could not

answer it properly, moreover he has been

acquitted of the offences for which he was

prosecuted and he was aged about 20 years

when he filled up the attestation form. In

the circumstances, the Summary Court-Martial

should have shown leniency to the petitioner

in the matter of inflicting punishment. The

punishment awarded to the petitioner,

considering nature of the offence alleged

against him and the circumstances under which

it was committed by him, seems to be harsh

and excessive. When the Summary Court-Martial

decided to award punishment of dismissal from

the service, it was not expected to award the

punishment of rigorous imprisonment also. As

held in the case of Ex.Naik Sardar Singh

[supra], the penalty imposed must be

commensurate with the gravity of the

misconduct, and that any penalty

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disproportionate to the gravity of the

misconduct would be violative of Article 14

of the Constitution. Considering the facts

and circumstances of the present case, we are

inclined to set aside the sentence of

rigorous imprisonment for one month awarded

to the petitioner, though he has already

undergone it, because the said sentence of

imprisonment would come in his way in getting

some other Government service in future. So

far as the punishment of dismissal from the

service awarded to the petitioner is

concerned, we are of the view that it is

quite adequate to the nature of the offence

committed by the petitioner. Therefore, we

are not inclined to interfere with the said

punishment. In the result, we pass the

following order:

ORDER

i] The Writ Petition is partly allowed.

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ii] The conviction of the petitioner for

the offence under Section 44 of the Army Act,

1950 is maintained, however, sentence of

rigorous imprisonment for one month awarded

to him is set aside.

iii] The punishment of dismissal from the

service awarded to the petitioner is

maintained.

Writ Petition is disposed of in the

above terms. No costs.

                               Sd/-                            Sd/-
               [SANGITRAO S.PATIL]          [S.S.SHINDE]
                     JUDGE                     JUDGE  





              DDC