No. 13982662 Ex.-Nk/Skt Badan ... vs Union Of India (Uoi) And Anr.
2006 Latest Caselaw 1471 Del

JUDGMENT

Swatanter Kumar, J.

1. The petitioner joined Army in the year 1991. He was posted to 425 Field Ambulance in April, 1999. The petitioner sought leave for the period from 14.08.1999 to 02.10.1999 and proceeded for his hometown. During this period of leave, the petitioner requested his brothers to settle the family matter amicably and not to harass the petitioner and/or his wife who was living in the house away from the petitioner. Still, there was no settlement and the brothers of the petitioner kept on harassing the petitioner and his family even during the leave period. According to the petitioner, he fell mentally ill and completely lost his memory somewhere in September, 1999 and was taken to Mazar of Peer Baba near to his hometown. The petitioner underwent long drawn treatment and was taken to that place time and again after every 2-3 months. The petitioner recovered from the illness in the last week of August, 2001 and regained his memory and recollected that he was serving in the aforesaid unit. In September, 2001, the petitioner also approached the record office for rejoining voluntarily but the record office directed the petitioner to join at Adm. Bn AMC Center and School Lucknow or at 425 Field Ambulance vide their letter dated 25.09.2001, in furtherance to which the petitioner joined at 213 transit camp Jammu on 21 October, 2001 and apprised the authorities about the said story of the petitioner. After the petitioner joined the unit, summary of evidence was recorded against the petitioner under Army Rule 22 in December, 2001 and the petitioner gave his statement giving out reasons for his overstayal. The respondents found a prima facie case against the petitioner and the competent authority directed that the petitioner should be tried by a summary court martial. This order was made in January, 2002. The petitioner alleges that the respondents got certain blank papers/performa signed from him using them for making out a case of 'pleaded guilty' and on the basis of this, the petitioner was awarded sentence of dismissal from service. The petitioner filed a statutory petition to the Chief of Army Staff on 6.12.2003 which was also rejected by the competent authority in June, 2004, resulting in filing of the present petition under Article 226 of the Constitution of India. The petitioner has challenged the correctness of order dated 22.1.2002 awarding the sentence of dismissal from service and the order of rejection of his statutory petition dated 28.6.2004 on the ground that there were sufficient reasons for the petitioner for overstayal of leave, the punishment of dismissal is disproportionate to the gravity of the offence and no summary of evidence was recorded in consonance with the provisions of Army Rule 22. It is also the ground of attack of the petitioner to the impugned orders that the petitioner never pleaded guilty and even if for the sake of argument, it is assumed that the petitioner had pleaded guilty, then the provisions of Army Rule 115(2) were not complied with thus vitiating the entire proceedings of the summary court martial. In addition to these grounds, the order of the Chief of Army Staff is also attacked for non-application of mind and passing the order rejecting the petition in a stereo type manner.

2. The respondents have admitted that the petitioner was posted to 425 Field Ambulance and he had proceeded on 50 days balance of annual leave for the year 1999 w.e.f. 14.8.1999 to 2.10.1999. On completion of the said leave, the petitioner did not join and he was declared as a deserter vide order dated 26.12.1999 w.e.f. 3.10.1999. The petitioner subsequently reported at his own and surrendered himself to the unit on 22.10.2001. After his service records were received, the summary of evidence was recorded in accordance with the rules on 5.1.2002 where after he was directed to be tried by a summary court martial and was dismissed from service for an offence under Section 39(b) of the Army Act on 22.1.2002. It is stated that the entire proceedings were carried out in accordance with law and the petitioner had pleaded guilty at different occasions in writing and otherwise. It is also stated that the provisions of Army Rule 115(2) were duly complied with. According to the respondents, the petitioner was punished previously twice under Section 39(b) in the years 1994 and 1997 and once under Section 39(a) in the year 1999 for overstayal of leave and absenting himself without leave. In these circumstances, the respondents claim to have acted in accordance with law.

3. The main thrust of the submissions on behalf of the petitioner is that the petitioner never pleaded guilty and the respondents had got his signatures on blank paper/forms, thus, the entire proceedings of the summary court martial are vitiated. It may be noticed that the petitioner himself has filed the letter dated 12.9.2001 (annexure-P1 to the writ petition) which is addressed to the OIC Records stating that the petitioner had some property disputes with his brothers as they were denying his actual right in the property and has made a request that he be excused for unauthorized absence and be retained in service.

The said letter reads as under:

I was granted balance of annual leave from 14th August, 1999 to 02nd October, 1999. During my leave period, dispute in connection with movable and unmovable property of our father caused among my brothers, as our father and mother have died. I was deprived off my actual right, but I did not prefer to appear before prominent Court of justice nor I made Correspondence to any unit commander. I made approach to the relations and important person of my village, to solve the dispute amicably. Thus I could not join duty till today nor received letter from my unit as our village address hase been changed my present district is Hathras and old district Mathura.

Now I am satisfied and carefree in dome stic supervision, so I voluntarily want to rejoin duty. Obviously I have committed offence under AA Section 39(b).

Hence it is requested is decorum that I may please be punished for my offence and be retained in service. Kindly give me proper guidance and orders, I shall be highly obliged to your generous consideration and action please thanking you in anticipation.

4. The summary of evidence was recorded and thereafter when the petitioner was brought before the competent authority, he had pleaded guilty of the Article of Charge which related to unauthorized absence. Thereafter, as per the proceedings placed on record, the provisions of Army Rules 115 and 155 were complied with. These proceedings have been signed by Lt. Col. Ravjot Singh, CO. It is interesting to note that these proceedings have been filed by the petitioner himself. Prior to this, even when summary of evidence was being recorded, the petitioner was posed with the questions in regard to punishment and whether he wanted to examine any witness. The answers to these two questions were as follows:

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

Answer by The accused says I have been guilty the accused of the crime but plead to be shown leniency for the same and be permitted to prove my worth as a last chance.

Question to Do you wish to call any witness as the accused to character?

Answer by No the accused

5. On the face of these records which the petitioner himself has produced, it can hardly be said that the petitioner was compelled by the respondents to sign blank paper/forms It is also interesting to note that the petitioner in his first voluntary statement written by him to the authorities as far back as on 12 September, 2001 (Annexure P1 to the writ petition), had made no reference to any mental disease or prolonged treatment of a Tantrik or otherwise. There is also no explanation rendered by the petitioner as to why he did not report to any military hospital unit or even a civil hospital for a long period of more than two years. The petitioner made an attempt to make out a story of sickness for the first time when his statement was recorded in the summary of evidence on 5th January, 2002. There also, the emphasis was on domestic problems. However, a reference was made with regard to losing mental balance and treatment from different sources. The petitioner opted not to bring any evidence during the summary court martial. There is no reason as to why the petitioner could not have produced witnesses from his village to prove that he was sick. The story put forward by the petitioner certainly lacks bona fides and is a mere excuse to overcome his offence of unauthorized absence. The court cannot lose sight of the fact that under Section 39(a), absence without leave is a serious offence for which the petitioner can be sentenced to imprisonment for a term which may extend to three years or such less punishment as may be specified. In a disciplined force, unauthorized absence over a long period of more than two years would be a serious misconduct and the court can hardly find fault with the findings recorded by the summary court martial which are primarily based upon the admission of guilt of the petitioner. The statutory appeal preferred by the petitioner has also been rejected. There is nothing on record before us which could even remotely show, much less prove prima facie, that the petitioner had not admitted his guilt of unauthorized absence. The plea of excessive punishment, in any case, is not justifiable. Unauthorized absence for such a long period is a serious misconduct. Furthermore even the previous conduct of the petitioner does not, in any way, further the cause of the petitioner. He was earlier punished twice for offences under Section 39(b) in the years 1994 and 1997 and once under Section 39(a) in the year 1999 for over stayal of leave and absenting without leave. In this backdrop, we are unable to hold that the punishment imposed upon the petitioner is excessive or unreasonable.

6. For the reasons afore-recorded, we see no merit in this petition. The same is dismissed while leaving the parties to bear their own costs.