Shri Ravinder Singh vs The Union Of India (Uoi) And Ors.
2002 Latest Caselaw 271 Del

JUDGMENT

S.B. Sinha, C.J.

1.The petitioner in this case was a Gunner working in the office of respondent No.3. He proceeded on 36 days's annual leave from 26 th January 1992 to 3rd March 1993. The said leave was allegedly sanctioned by the respondent No.3. Allegedly, while availing the said leave, he fell into a 'Khud' in his village on 26 th February 1992, as a consequence whereof, he sustained contusion in his right leg. He was taken to the nearby doctor at Thural, Himachal Pradesh and he was under his treatment from 26 th February 1992 to 9 th March 1992. He allegedly was admitted to the Government Medical College at Thural wherein also he remained under treatment from 10 th March 1992 to 15 th 1992. A purported information to the said effect was sent tot he Commanding Officer of the Unit of the petitioner. The petitioner rejoined his duties on 23rd April 1992 and produced his medical certificate. On 25th April 1992, he was informed that he would be tried by a Summary Court Martial.

The charges against the petitioner are as follows:

"AA SEC 39(b)

WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM, in that he, at field on 13 January 1992, having been granted leave of absence from 13 January 1992 to 17 February 1992 to proceed to his home failed without sufficient cause to rejoin at unit lines on 17 February 1992 on expiry of the said leave until rejoined voluntarily at 1600 hour on 23 April 1992.

(Total period of absence 65 days)"

2. According to the petitioner prior thereto neither any charge-sheet was served on him nor any list of witnesses was furnished nor any defense assistance was rendered to him. On 29th April 1992, he was allegedly taken to the Court Martial enquiry and in the absence of any charge-sheet, list of witnesses or list of material documents, he could neither defend his case nor cross-examine the witnesses. He even could not lead evidence on his own behalf. He was found guilty of the charges.

3. The petitioner was dismissed from service in view of the enquiry report of the same date. But later, on a post-confirmation petition made in terms of Section 106 of the Army Act, the sentence of dismissal was modified to that of discharge on humanitarian grounds by order 29th April 1993.

4. The writ petition has been filed questioning the said order.

5. The contention of the respondents, on the other hand, was that the petitioner pleaded guilty to the charges. He consciously declined to cross-examine the witnesses and lead any evidence on his own behalf. He even issued a certificate to the effect that all formalities as are required in law had bee complied with and he would not question the order before any court of law.

6. Mr. Nigam, the learned counsel on behalf of the petitioner would urge that in the instant case, all procedural requirements had been violated. The learned counsel would contend that a friend was appointed but he did not render any assistance whatsoever. He even did not cross-examine the witnesses. The learned counsel would contend that the petitioner's signature had been obtained by the third respondent on some typed papers without explaining the contents thereof to him. The learned counsel would further contend that even on the document containing the purported admission, his signature had not been obtained. In any event, it was submitted, the quantum of punishment meted out to him being disproportionate, this court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India, would interfere therewith. In support of the said contention, reliance had been placed on Lt. Col. Prithvi Pal Singh Bedi v. Union of India and Ors. , Ranjit Thakur v. Union of India and Ors., , Union of India and Anr. v. B.C. Chaturvedi , (1995) 6 SCC 750, Union of India and Anr. v. G. Ganayutham , and Om Kumar and Ors. v. Union of India.

7. Mr. Amit Bansal, the learned counsel appearing on behalf of the respondent, has product the original records of the matter and submitted on the basis thereof that the requirement of law, as contained int he Army Act and the Army Rules, have strictly been complied with. The learned counsel would contend that as the petitioner herein had admitted his guilt, it was not necessary to record a detailed finding. Even prior thereto, the witnesses had been examined in the preliminary enquiry and the copies of the deposition had been served upon the petitioner. The learned counsel submitted that even the petitioner was found guilt of a similar charge on an earlier occasion which fact had also been taken into consideration in awarding the punishment. Our attention has been drawn to the fact that whereas in this writ petition, the petitioner had set up a story of fracture of his leg, from the medical report, it would appear that he allegedly suffered from mere contusion. Drawing our attention to the relevant rules, the learned counsel would contend, that the petitioner having regard to the nature of his injury, could have gone to the nearest military hospital and obtained a certificate there from.

8. The learned counsel would contend that as per a past practice, the petitioner was handed over a blank travel document which was to be endorsed in the Base Camp but he did not report thereto and went out of the field area on or about 26th January 1992 although his leave had been granted from 13th January 1992. The learned counsel would contend that this court, in exercise of its jurisdiction under Article 226 of the Constitution of India, should not interfere with the quantum of punishment. In support of the said contention, reliance has been placed on Vidya Parkash v. Union of India and Ors. .

9. The primary question which aries for consideration in this petition is as to whether int he disciplinary proceedings, the requirement of the Army Act and the Rules had been complied with our not.

10. Before adverting to the question in this petition, the provisions of the relevant statute may be noticed which are as under:

11. Section 71 specified the nature of punishment which may be inflicted in respect of offences committed by person subject to the said Act and convicted by Court Martial.

12. Other relevant sections read thus:

" 39. Absence without leave.-

Any person subject to this Act who commits any of the following offences, that it to say,-

(b) without sufficient cause overstays leave granted to him;

shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned."

The relevant rules of the Army Rules 1954 read thus:

"23. Procedure for taking down the summary of evidence.-

(1) Where the case is adjourned for the purpose of having the evidence reduced to writing, at the adjourned hearing evidence of the witnesses who were present and gave evidence before the commanding officer, whether against or for the accused, and of any other person whose evidence appears to be relevant, shall be taken down in writing int eh presence and hearing of the accused before the commanding officer or such officer as he directs.

(2) The accused may put in cross-examination such questions as he thinks fit to any witness, and the questions together with the answers thereto shall be added to the evidence recorded.

(3) The evidence of each witness after it has been recorded as provided in the rule when taken down, shall be read over to him, and shall be signed by him, or if he cannot write his name shall be attested by his mark and witnessed as a token of the correctness of the evidence recorded. After all the evidence against the accused has been recorded, the accused will be asked: "Do you wish to make any statement? You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence." Any statement thereupon made by the accused shall be taken down and read to him but he will not be cross-examined upon it. The accused may then call his witnesses, if he so desires,any witnesses as to character.

(4) The evidence of witnesses and the statement (if any) of the accused shall be recorded in the English language. If the witness or accused, as the case may be, does not understand the English language, the evidence or statement, as recorded, shall be interpreted to him in a language, which he understands.

(5) If a person cannot be compelled to attend as a witness, or if owing to the exigencies of service or any other grounds (including the expense and loss of time involved), the attendance of any witness cannot in the opinion of the officer taking the summary (to be certified by him in writing), be readily procured, a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence.

(6) Any witness who is not subject to military law may be summoned to attend by order under the hand of the commanding officer of the accused. The summons shall be in the form provided in Appendix III.

106. Proceedings.- (1) the officer holding the trial hereinafter called the court, shall record, or cause to be recorded in the Hindi or English language, the transactions of every summary court-martial.

(2) The evidence shall be taken down in a narrative form in as nearly as possible the words used; but in any case where the court considers it material, the question and answer shall be taken down verbatim."

116. Procedure after plea of "Guilty".-

(1) xxx

(2) After the record of the plea of "Guilty" on a charge (if the trial doe snot proceed on any other charges), the court shall read the summary of evidence and annex it to the proceedings of if there is no such summary, shall take and record sufficient evidence to enable it to determine the sentence, and the reviewing officer to know all the circumstances connected with the offence. The evidence shall be taken in like manner as is directed by these rules in case of a plea of "Nt Guilty".

"129. Friend of accused.-

In any summary court martial, an accused person may have a person to assist him during the trial, whether a legal advisor or any other person. A person so assisting him may advise him on all points and suggest the questions to be put to witnesses, but shall not examine or cross-examine witnesses or address the court.

13. Para 1347 of the Regulations for Army, according to which the petitioner was obliged to report to military hospital, is reproduced below:

"(a) A soldier falling sick while on leave must report himself sick at once to medical officer of the armed forces or to the Civil Hospital/Dispensary if there is one at the station, for treatment. When neither service nor Civil medical facilities are available at the station, he should report to the armed forces/civil hospital/Dispensary at the nearest station. In case of severe illness and when it is impracticable for him to report to the nearest Medical Officer or armed forces/Civil Hospital/Dispensary, he will obtain a certificate from the Government Civil Surgeon stating that owing to the severity of his illness, it was impracticable for him to undertake the journey to such hospital. If a Civil Surgeon is not available in the station he may obtain such a certificate from an Assistant Surgeon employed in a Government/District Board Hospital/Dispensary and in the absence of this facility from the village Headman. In either case the individual concerned is himself responsible for ensuring that the certificate is immediately sent to the authority which granted him leave. If the Commanding Officer has any reason to believe that a soldier has been admitted to a Civil Hospital, he will taken necessary action to get it verified from the doctor concerned.

A medical certificate from a Civilian Government medical officer or a private medical practitioner will by itself not be acceptable as entitling him to the grant of an extension of leave, except in very exceptional cases when,

(i) It was impossible for the individual to follow the procedure mentioned above owing to severe illness and the non-existence of service/civil facilities nearby and

(ii) the leave sanctioning authority is satisfied the bonafides of the case.

(b) In view of the peculiar circumstances obtaining in Nepal and certain hill districts e.g. Kumaon, and other remote localities, the above procedure will have to be applied with discrimination at the discretion of the leave sanctioning authority."

14. The disciplinary proceedings were started on 25th April 1992 wherefor a notice was served stating that a summary court martial, as composed thereby, would assemble at 9.00 hours on 27th April 1992 for trial of the petitioner herein for offence under Section 39(b).

15. From a perusal of the said minutes, it appears that one A.G. Pathade was appointed as friend of the accused.

16. The three witnesses namely Hav (TA) Vedpal, Hav (OPR) Karan Singh and Nb Sub Sukhi Ram were examined in the preliminary enquiry and depositions of the said witnesses had been handed over to the petitioner. On the said date, the charge against the petitioner had been read out and explained to him. The petitioner declined to cross-examine them. It further appears that a statement was recorded therein that the petitioner had also declined to examine any defense witnesses.

17. The said proceedings in terms of Rule 11 (1) were held in the presence of Cap. Rajesh Vardhan and Sub KVR Kutti.

18. The petitioner thereafter issued a certificate to the effect that he would not want the copy of the summary court martial proceeding and further would not go to any of the courts. His statement in Hindi to the afore-mentioned effect in his own hand-writing is also available on record.

19. The petitioner, in answer to a query as to whether he would plead guilty or not, answered in the affirmative. The summary court martial recorded the following:

"Before recording the plea of guilty offered by the accused, the court explained to the accused the meaning of the charge to which he had pleaded guilty and ascertained that the accused had understood the nature of the charge to which he had pleaded guilty. The court also informed the accused the general effect of the plea and the difference in procedure, which will be followed consequent to the said plea. The court having satisfied itself that the accused understands the charge and the effect of his pleas of guilty accepts and records the same. The provisions of Army Rule 115(2), are thus complied with".

20. It appears that no answer had been recorded against the questions:

"Do you wish to make any statement in reference to the charge or in mitigation of punishment?

"Do you wish to call any witness as to character?"

21. The petitioner was further informed on 25th April 1992 itself that he was entitled to have a person as his fried to assist him during the trial.

22. The role of a friend in terms of the Rule 129 is limited. He cannot cross-examine the witnesses no can he make any submission on behalf of the petitioner.

23. In the afore-mentioned, it was for the petitioner alone to cross-examine the witnesses.

24. The signature of the petitioner was taken in the proceedings dated 25th    April 1992.
 

25. The summary of the evidence had also been recorded in his presence. On 26th   April 1992, the petitioner received the following documents:
   

(a) 153 Med Regt (SP) Special Regimental order Part- I Ser.N O. 01/S/91 dated 25th   April 92 0800 hrs.
 

(b) One copy of charge sheet.
 

(c) One copy of Summary of Evidence." 
 

26. The sitting of the court is made in terms of Section 3 of the Summary Court Martial Rules which begins from Rule 106.
 

27. It further appears that it had been recorded therein that he had also earlier been convicted once for an offence under Section 39(b) of the Army Act for a similar offence.
 

28. It cannot be, in the absence of any authentic material, said that the petitioner was forced to give a certificate on a typewritten paper. As would appear from the records that he had, in fact, given such a certificate in his own handwriting in Hindi.

29. During the disciplinary enquiry, he never raised a question that he was injured. Such a contention had been raised for the first time in the writ petition. In his post-confirmation petition under Section 164 of the Army Act, he stated thus:

" However, while I was on leave at my home-town, Moondhi, District Kangra, Himachal Pradesh I fell ill on February 26, 1992 and was at Thural Hospital undergoing treatment of my leg which was fractured in an accident. It was admitted in Government Hospital at Ghural."

30. However, the Medical Certificates, as contained in Annexures B and C dated 9th March 1992 and 15th April 1992 respectively, read thus:

  "Dr. Vijay Chaudhry     Phone: Clinic 50 
M.B.B.S., M.D.      THURAL-176107 
Physician & Heart Specialist    Distt. Kangra (H.P.) 
 

This is to certify that Sh. Ravider Singh s/o Sh. Tulsi Ram Village & P.O. Noondhi, had been under my treatment for contusion (Rt) Leg, and rest for a period of thirteen days from 26.2.92 to 9.3.92 was absolutely necessary for restoration of his health.

Sd/-Dr. Vijay Chaudhry 9.3.92

Sd/Ravider Singh Signature of patient attended"

"MEDICAL CERTIFICATE

(For Non Gazetted Officers)

Signature of Applicant ....Sd/ Ravinder Singh

(To be filled in by the applicant in the presence of Government Medical Attendant)

Thural-176107, Distt. Kangra, (H.P.)

After a careful personal examination of the case hereby certified that Sh. Ravider Singh s/o Sh. Tulsi Ram whose signature is given above is suffering from Contusion Rt. Leg and I consider that a period of absence from duty of thirty six days from 10.3.92 to 15.4.92 is absolutely necessary for the restoration of his health.

Dt. 15.4.92

Sd/- Dr. Gautam (M.O.) M.B.B.S. M.D.

PHU. Thural, H.P."

31. The petitioner therefore, had suffered a contusion "Contusion" as defined in Butterworths Medical Dictionary Second Edition denotes "A bruise; a superficial injury caused by a blow without breaking of the skin."

32. Contusion, therefore, was not such a serious injury for which he could not attend the Palampur Medical Army Hospital which was only 20 kms. away as required under para 13247 of the Regulations.

33. Having regard to the fact that the petitioner had pleaded guilty, in our opinion, the principles of natural justice were not required to be complied with.

34. It is trite law that in terms of section 58 of the Indian Evidence Act, things admitted need not be proved.

35. In Lt. Col. Prithvi Pal Singh Bedi v. Union of India and Ors., (supra) the apex court, in the facts of that case, made the following observations:

"45. Reluctance of the apex Court more concerned with civil law to interfere with the internal affairs of the Army is likely to create a distorted picture in the minds of the military personnel that persons subject to Army Act were not citizens of India. It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution. More so when this Court held in Sunil Batra v. Delhi Administration, at p. 495: ( at p. 1727) that even prisoners deprived of personal liberty are not wholly denuded of their fundamental rights. IN the larger interests of national security and military discipline Parliament in its wisdom may restrict on abrogate such rights in their application to the Armed Forces by this process should not be carried so far as to create a class of citizens not entitled to the benefits of the liberal spirit of the Constitution. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilized community governed by the liberty oriented constitution. Personal liberty makes for the worth of human being and is a chershed and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trail by a judge of unquestioned integrity and wholly unbiased.

36. The apex court pointed out the procedure of the trial held under the said Act and the Rules as harsh compared to trial in a civil court as an ordinary criminal court. It also pointed out even one appeal has not been provided from the order of punishment and further the procedure for confirmation of sentence is no substitution for appeal, but the said relevant provisions of the Act have not been declared ultra vires. It is now well settled that the principles of natural justice are required to be complied with unless there exists statutory interdict.

37. By reason of a statute, even the principles of natural justice may not be required to be complied with or its scope may be made limited.

38. The writ petitioner herein has not questioned the vires of the relevant provisions of the Act and as such the question raised by Mr. Nigam cannot be gone into in this petition.

39. Petitioner herein has not alleged mala fide nor did he contend that the authorities had any bias or prejudice against him.

40. We may notice that in. Vidya Parkash v. Union of India and Ors., (1988) 2 SCC 456, the apex court held as under:

"15. It has been urged on behalf of the appellant that he raised an objection to Major PS. Mahant to preside over the summary court martial. It has also been urged that at the time of taking evidence of the witnesses, the appellant was asked to keep his mouth shut and as such the appellant could not cross-examine the witnesses examined on behalf of the prosecution, thereby the principles of natural justice have been violated. It appears that the appellant has not filed any objection before the summary court martial objecting to the presiding of the court martial proceeding by Major P.S. Mahant nor nay such objection had been taken in the writ petition moved before the High Court. It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff (Competent Authority), Army Headquarters, New Delhi that he raised an objection to the presiding of Major P.S. Mahant as judge of the court martial proceedings. It has ben rightly held by the High Court that this is an afterthought and as such this submission cannot be permitted to be made by the appellant after the court martial proceedings were completed and the order of dismissal from service was made. As regards the other objection that he was directed by regards the other objection that he was directed by Capt. K.J. Singh to keep his mouth shut, it is also without any substance inasmuch as it appears from the summary of the evidences recorded that the appellant in fact cross-examined the prosecution witnesses. It is also evident from the judgment of the Delhi High Court that the appellant admitted his guilt of absenting from duty without taking any leave."

41. We, therefore, do not find any substance in the contention of the learned counsel for the petitioner that the principles of natural justice had not been complied with in the facts and circumstances of the case, particularly having regard to the conduct of the petitioner.

42. The question which now arises for consideration is as to whether this court should exercise its jurisdiction under Article 226 of the Constitution of India as regards the quantum of punishment. It is evident from the court martial proceedings that no evidence had been taken as regards quantum of punishment. In Ranjit Thakur v. Union of India and Ors. , an allegation of mala fide was made and the question of prejudice had been raised as regards perception of one officer in the court martial. It was held that the participation of respondent No.4 in the court martial rendered the proceeding coram non-judice. As regards the quantum of punishment, it was held that the punishment is strikingly disproportionate so as to cal for and justify interference.

43. In Union of India and Anr. v. B.C. Chaturvedi, (1995) 6 SCC 750, it was held:

"When an inquiry is conducted on charges of misconduct by public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the finding or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepts the evidence and the conclusion receives supports there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority had coextensive power to reappreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence."

44. As regards the power of judicial review of the court on the question of disproportionate punishment, it was noticed:

"14. In Union of India v. S.L. Abbas , when the order of transfer was interfered with by the Tribunal, this court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not, in such circumstances, interfere with orders of transfer of a government servant. In Administrator of Dadra & Nagar Haveli v. H.P. Vora reported in (1993 Supp (1) SCC 551: 1993 SCC (L&S) 281 " (1993) 23 ATC 672 it was held that the Administrative Tribunal was not an appellate authority and it cold not substitute the role of authorities to clear the efficiency bar of a public servant. Recently, in State Bank of India v. Samarendra Kishore Endow a Bench of this Court of which two of us (B.P.) Jeevan Reddy and B.L. Hansaria, JJ.) were members, considered the order of the Tribunal which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary/appellate authority."

45. As regards quantum f punishment, it was observed that:

"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority,k being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other 'penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/Appellate authority to reconsider the penalty impose,d or to shorten the litigation, it may itself,in exceptional and rare case, impose appropriate punishment with cogent reasons in support thereof."

46. In Union of India and Anr. v. G. Ganayutham, , a two-Judge Bench held that the doctrine of proportionality has not independent legal existence in administrative law. This doctrine in the matter of quantum of punishment awarded to a delinquent employee,must be held to be 'irrational' so as to attract the case of Council of Civil Service Unions v. Minister for Civil Services, 1985 AC 374.

47. The question came up for consideration again before a Division Bench in Om Kumar and Ors. v. Union of India,. The apex court, upon taking into consideration its earlier decisions in Ranjit Thakur v. Union of India and Ors. (supra), Union of India and Anr. v. B.C. Chaturvedi, (supra) and Union of India and Anr. v. G. Ganayutham, (supra) held as under:

"70. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary case is questioned as 'arbitrary' under article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a contest. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare case where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases, can the Court substitute its own view as to the quantum of punishment."

48. In the instant case no evidence had been taken as regards mitigation of the sentence which should heave been done. It this statute provided that a delinquent officer should be given an opportunity as regards imposition of quantum of punishment, keeping in view the expanded principle of "right to life" as adumbrated in Article 21 of the Constitution, there is no reason as to why the same was not complied with. The petitioner was 25 years of age at the time of dismissal of his services. He only over-stayed his leave. In the afore-mentioned situation, we are of the opinion that it is a fit case where the matter relating to quantum of punishment meted out to the petitioner being harsh, the same should be considered afresh by the third respondent. Such a consideration may be made at an early date and preferably within four weeks from the date of communication of this order.

49. This petition is disposed of with the above-mentioned directions without any orders as to costs.