L/Nk Sunil Kumar vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 778 Del

JUDGMENT

S.N. Aggarwal, J.

1. The petitioner, Ex Sepoy (L/NK) Sunil Kumar, 18th Battalion JAT Regiment, in this writ of certiorari, calls in question an order dated 18.01.2006 passed by the Chief of the Army staff on his statutory petition under Section 164(2) of the Army Act, 1950 against the findings and sentence of summary court martial held on 02.04.2002 pursuant to which he was dismissed from service.

2. The brief background of the case giving rise to this writ petition is as follows:

The petitioner was enrolled in Army as Sepoy in 1988. He met with an accident on 09.12.1997 in which he suffered multiple fracture on his right hand shoulder and ribs. He was thereafter placed in low medical category CEE (Permanent) w.e.f. 03.10.1998. He was provided sheltered appointment on account of his being in low medical category CEE (Permanent). On 16.01.2002 heated arguments took place between the petitioner and other members of the guard over the issue of change of timings of sentry duty of the petitioner. A court of inquiry was held regarding the said incident and after holding court of inquiry, the Commanding Officer of the petitioner ordered for recording of summary of evidence. The charges against the petitioner as contained in Annexure I to A.O. 24/94 were read out and explained to him to which he pleaded not guilty. Nine witnesses were examined by the Department as prosecution witnesses. The petitioner also produced three witnesses in his defense. However, despite opportunity given, the petitioner declined to cross-examine all the witnesses examined by the prosecution. After recording of summary of evidence, the summary court martial was held against the petitioner on 30th March, 1st April and 2nd April, 2002. The petitioner pleaded not guilty of the charges against him even during the summary court martial held against him. He refused to cross-examine the prosecution witnesses examined during the summary court martial held against him. The summary court martial, after trial, found the petitioner guilty of all the charges and sentenced him 'to be dismissed from service'.

3. Aggrieved by the findings and sentence awarded to him by the summary court martial, the petitioner preferred a statutory petition under Section 164(2) of the Army Act, 1950 which was rejected vide impugned order dated 18.01.2006 by the Chief of the Army staff (respondent No. 2).

4. The petitioner now aggrieved by the rejection of his statutory petition under Section 164(2) of the Army Act, 1950 has filed this writ petition seeking a writ against the respondents to quash the impugned order as well as the proceedings of the summary court martial held against him and to direct the respondents to reinstate him in service with all the consequential benefits.

5. The petitioner was arraigned on three charges and they were as follows:

The first charge was under Section 40(a) of the Army Act, 1950 for 'Assaulting his superior officer while on magazine guard duty on 16.01.2002'.

The second charge was laid under the Army Act Section 63 for 'an act prejudicial to good order and military discipline' and third charge was made under the Army Act Section 41(2) for 'disobeying a lawful command given by his superior officer'.

6. The grievance of the petitioner against the findings and sentence awarded to him by the summary court martial is that a proper inquiry was not carried out into the alleged incident of 16.01.2002 and that he was not given a reasonable opportunity to cross-examine the prosecution witnesses or to engage a defense counsel. The petitioner has alleged that the summary court martial was held against him in an arbitrary manner and he has been convicted on the basis of contradictory, unreliable and false evidence adduced by the department before the summary court martial. The further grievance of the petitioner is that the sentence of dismissal from service awarded by the summary court martial is too harsh and disproportionate to the offence.

7. Mr. S.M. Dalal, Advocate who appeared on behalf of the petitioner had argued that the Commanding Officer of the petitioner was biased against the petitioner and he was bent upon to dismiss him from service after he had met with an accident in 1997 because of his medical disability. In support of his contention, he had referred to the contents of Annexure P - 1 which is a letter dated 19.02.2001 written by Major R.S. Salaria, OIC RA Group advising the Commanding Officer of the petitioner to reconsider the certificate of sheltered appointment in respect of the petitioner. It was further argued by learned Counsel that the summary court martial was held against the petitioner in an arbitrary manner in as much as no opportunity was provided to the petitioner to engage a defense counsel or to crossexamine the prosecution witnesses. It was urged that the entire summary court martial is vitiated for violation of principles of natural justice. In the alternative, it was argued by learned Counsel that the sentence of dismissal from service awarded by the summary court martial is too harsh and disproportionate to the offences and a prayer was made for suitably reducing the sentence taking into account that the petitioner had already put in 12 years of service in the Army before he was dismissed pursuant to the summary court martial.

8. On the other hand, learned Counsel, who appeared on behalf of the respondents, had argued that there is absolutely no infirmity in the impugned order which require interference by this Court. It was contended that the summary court martial was held against the petitioner strictly in accordance with the procedure laid down in the Army Act, Rules and Regulations.

9. We have heard learned Counsel for the parties and have also perused the original record of summary court martial. We have noticed that the statutory representation under Section 164(2) of the Army Act filed by the petitioner was duly considered objectively by the Chief of the Army staff before it was rejected vide impugned order and it shall be relevant to refer to the observations of the Chief of the Army Staff regarding the contentions raised on behalf of the petitioner before him and now before us in this writ petition. The same are reproduced here-in-below:

The records reveal that there is sufficient direct and circumstantial evidence establishing the charges against the petitioner. The hearing of charge proceedings under Army Rule 22 has been duly conducted by the Commanding Officer. Thereafter the Summary of Evidence was recorded wherein all relevant witnesses were examined. The petitioner was given opportunity to cross-examine prosecution witnesses and examine his defense witnesses, at the hearing of charge proceedings and the Summary of Evidence. He was also provided with the services of the friend of the accused as stipulated by Army Rule 129 and there is no violation of natural justice. There is nothing on record to suggest that the petitioner was not allowed to engage a defense counsel or that he had so requested. The petitioner was at liberty to utilize the services of a counsel as his friend of the accused at his trial. The SCM proceedings disclosed that the trial has been conducted in accordance with the provisions of law.

The findings of the court are upported by cogent and reliable evidence on record, which inspires confidence. The sentence awarded is just, legal and commensurate with the gravity of the offences for which he stands convicted. The other contentions of the petitioner as mentioned in his petition are misconceived and bereft of any merit.

I, therefore, reject Petition dated Nil as the same lacks in merit and substance.

10. On going through the original record of the summary court martial, we have found that the court which held the summary court martial had provided services of Captain Jaisukh Ram to the petitioner to defend him in the summary court martial proceedings as his friend. The proceedings of summary court martial would further reveal that the adequate opportunity was given to the petitioner to cross-examine the prosecution witnesses but for reason best known to the petitioner, he declined to cross-examine them. Now the petitioner cannot turn around and make a grievance that he was not given adequate opportunity to defend the proceedings before the summary court martial held against him. The petitioner had admitted before the summary court martial that he had some heated arguments with other members of the guard on the date of incident on the issue of change of timings of sentry duty. The testimony of all the prosecution witnesses examined by the department before the summary court martial establishes all the three charges against the petitioner. In the facts and circumstances of the case, we do not find any substance in the contention of the petitioner that the Commanding Officer who held the summary court martial was biased against him as alleged in the petition. In our view, assaulting of a superior officer by the petitioner in Armed service constitute a serious offence and therefore, it can not be said that the punishment of dismissal from service awarded to him was in any manner harsh or disproportionate to the said offence.

11. We do not find any violation of any rules or regulations or principal of natural justice in the procedure adopted by the summary court martial in which the petitioner was found guilty of the charges for which he was tried.

This writ petition in our view is devoid of any merit and therefore fails and is hereby dismissed with no order as to costs.