Ex-Sepoy Ganga Singh Jadon vs Union Of India (Uoi) And Anr.
2007 Latest Caselaw 514 Del

JUDGMENT

S.N. Aggarwal, J.

1. More than a decade after suffering punishment of his dismissal from Army service on his pleading guilty to a charge of misconduct Ex-Sepoy Ganga Singh Jadon has filed this writ petition seeking a writ of certiorari directing the respondents to quash the proceedings of summary court martial held against him and to reinstate him in service with all consequential benefits.

2. The facts of the case giving rise to this writ petition are briefly stated as follows.

3. The petitioner was enrolled as a Sepoy in Army by the Branch Recruiting Officer, Gwalior on 10.1.1987 and after he had completed his military training, in May, 1988, he was posted in 16th Batallion, the Rajput Regiment, Kota under 18 Infantry division. In 1989 the battalion in which the petitioner was posted, shifted from Kota to JandK sector and thereafter in 1992 the entire 16th battalion was transferred to hard peace station at Dharamshala Cantt. While petitioner was working as a Sepoy in 16th Battalion, the Rajput Regiment at Dharamshala Cantt., he was sanctioned annual leave from 4.5.1992 to 3.7.1992. After expiry of his said annual leave, he did not report back for duty to his unit and overstayed leave for 21 days from 3.7.1992 to 24.7.1992. On account of his overstaying leave for 21 days, he was tried by summary court martial held against him by his Commanding Officer and pursuant thereto he was dismissed from Army service w.e.f 20.9.1992.

4. Aggrieved by his dismissal from service, the petitioner has filed this writ petition on 14.7.04 i.e after about 12 years of his dismissal from service.

5. We have heard the learned Counsel for the parties and have also carefully perused the entire record placed before us. The counsel for the petitioner had argued that the order of dismissal passed against the petitioner pursuant to summary court martial is vitiated by Army Rule 33(7) read with Rule 34(1) of the Army Rules, 1954. He had further argued that the sentence of dismissal passed against the petitioner is too harsh and disproportionate to the offence of overstaying leave of 21 days proved against him.

6. The submission of the learned Counsel was that the charge-sheet was served upon the petitioner on 19.9.1996 and the summary court martial was also held against him on the same day and he was convicted and dismissed from service for his overstaying leave for 21 days on that day itself. It was contended that the petitioner did not get adequate time for preparing his defense in the matter. This, according to him, vitiate the trial on account of violation of Rule 33(7) read with Rule 34(1) of the Army Rules, 1954 which provide time gap of 96 hours in case delinquent employee is posted in peace area and 24 hours if posted in field area, between commencement of court martial and the service of charge upon him. We hardly find any merit in this contention advanced on behalf of the petitioner. On a perusal of the proceedings of summary court martial placed before us, we have found that the petitioner was explained the charge of his overstaying leave for 21 days by his Commanding Officer for the first time prior to recording of summary of evidence recorded from 14.8.1992 to 25.8.1992. During the recording of summary of evidence, statement of petitioner was also recorded on 22.8.1992. In his statement the petitioner had tried to justify his ovoerstaying the leave. The justification that he gave was that while he was on annual leave the marriage of his younger brother was fixed for 7.7.1992. His elder brother who was also working in the Army did not reach for the marriage arrangements till 1.7.1992 and for that reason he had to stay back for the marriage and after the marriage he went to meet his elder brother at Bagdogra and on reaching there, he found that he had undergone some spinal operation. He returned home on 18.7.1992 and thereafter voluntarily joined his unit at Dharamshala on 24.7.1992 at around 1500 hours. Based upon the summary of evidence recorded against the petitioner, he was chargesheeted and was tried by the summary court martial held on 19.9.1992. A perusal of the summary court martial proceedings would reveal that the petitioner was defended in those proceedings by his next friend as defending officer and that the said proceedings were also attended by Subedar Suraj Pal Singh of 16 Rajput Regiment (JC 15303M) and also by Subedar Dharam Singh of 16 Rajput Regiment (JC179116). The petitioner in presence of his defending officer and also the above named independent officials had pleaded guilty to the charge framed against him and had told his Commanding Officer that he would prefer to be dismissed from service instead of sending him to jail for the offence for which he was tried. The proceedings of summary court martial further reveal that the petitioner had been charged for the same offence even in the past also and at that time he was sentenced to 21 days imprisonment and was kept for the said period in the military custody. Presumably it is for that reason that the petitioner voluntarily opted before the Commanding Officer during trial while pleading guilty to the charge that he would prefer to go out of service instead of suffering imprisonment. The petitioner nowhere disputed the correctness of the summary court martial proceedings till the filing of the present writ petition which he has filed after about 12 years of his dismissal from service. Though the petitioner is alleged to have made representations against his dismissal to the higher authority i.e GOC-IN-C and also to the Chief of the Army Staff and to the President of India but he has not filed any proof much less cogent proof to show that he had sent those representations particularly when the respondents have denied the same in their counter affidavit. This compels us to draw an adverse inference against the petitioner that no such representations were sent by him either to GOC-IN-C or to the Chief of the Army Staff or to the President of India. The alleged representations relied upon by the petitioner are Annexures P-8 to P-10 to the present writ petition. For a moment even if it is assumed that the representations as alleged by the petitioner were sent by him still the same are of no consequence because a perusal of the same would show that the petitioner had never raised an objection prior to filing of this writ petition that his signatures on the proceedings of summary court martial including Annexure A to the Army Order 70/80 were obtained under threat, coercion or misrepresentation as sought to be contended on his behalf. To our mind, that contention appears to be an after-thought and seems to be far from truth. In our considered view no prejudice at all was caused to the petitioner inasmuch as impugned order of his dismissal from service was passed by the Army authorities on his confessing to his guilt before the court in summary court martial proceedings.

7. Adverting to the only other contention advanced on behalf of the petitioner regarding dis-proportionality of the punishment, the learned Counsel of the petitioner had urged that the punishment of dismissal from service awarded to the petitioner in summary court martial proceedings held against him was too harsh and was disproportionate to the offence of overstaying of leave proved against him. There may be some merit in this argument urged on behalf of the petitioner but the question that needs our consideration is whether at this distant point of time it is at all feasible to send him back to serve for the remaining period of his engagement in a disciplined force when he himself is guilty of delay and laches in approaching this Court after 12 years of his dismissal, particularly when his dismissal is based on his plea of 'plead guilty'. The petitioner had hardly rendered service in the Army for 5 years 8 months and now more than 15 years have passed since he was dismissed from service. During this period of 15 years, he has led a civilian's life wholly out of touch with what his colleagues in his battalion have learnt in training and other courses. In that view, therefore, it would be neither nor otherwise feasible to send him back to the service even if we hold that the punishment awarded to him by his Commanding Officer was more than what he actually deserved. We have also taken into account the fact that he was punished for the same offence even in the past also for which he was sentenced to imprisonment for 21 days and was kept in military custody and that order of dismissal was passed by the competent authority on the petitioner pleading guilty to the charge framed against him.

8. In view of the above and having regard to all the circumstances of the case, we do not find any merit in this writ petition, which fails and is hereby dismissed, however, in the circumstances of the case without any order as to costs.