Chauthmal Vijay Bhika (Through ... vs Uoi & Ors.
2009 Latest Caselaw 1627 Del

             HIGH COURT OF DELHI AT NEW DELHI

                         W.P.(C) No. 3110/2008 & CM No. 4067/2009

                                   Date of Decision: April 24, 2009

Chauthmal Vijay Bhika (Through his wife) ... Petitioner
                        Through: Mr. Mohan Kumar, Adv.

                                  Versus

UOI & Ors.                                    ...    Respondents
                                  Through: Dr. Ashwani Bhardwaj,
                                  Adv. for the respondents.

CORAM:
HON'BLE MR. JUSTICE B.N. CHATURVEDI
HON'BLE MR. JUSTICE S.L. BHAYANA

1.    Whether reporters of local paper may be allowed to
      see the judgment?                             Yes
2.    To be referred to the reporter or not?             Yes
3.    Whether the judgment should be referred in the
      Digest?                                Yes
                             JUDGMENT

S. L. BHAYANA, J.

The petitioner has filed the present writ petition under

Article 226 of the Constitution of India for issue of appropriate

writ, order or direction in the nature of certiorari or mandamus

and challenging the action of respondent No.4 to convene a

General Court Martial (hereinafter to be referred as "GCM") in

respect of petitioner at Umroi Cantt., Meghalaya on 28th April,

2008 as arbitrary and illegal and further to direct the

respondents to assemble the Court Martial at New Delhi.

2. A perusal of the petition unfolds these averments

that the petitioner has joined the Army in the year 1994 as a

recruit and after training and due attestation joined the 3rd

Battalion of the Mahar Regiment in the rank of Sepoy and in due

course, was promoted to the rank of Lance Naik. The petitioner

claims to have put in around 14 years of service in the Army.

3. On November 2004, the petitioner‟s Unit, i.e. 3rd

Mahar Battalion came to New Delhi to go on a U.N. Mission to

Congo. On 2nd August 2005, the petitioner applied for leave

since his father was seriously ill. However, he was not granted

leave after being interviewed through proper channel. This is

the Petitioner‟s claim that a verbal sanction had been given by

Subedar Maj (Rear) to go on Casual Leave for 6 days on 9th

August 2005. However, upon his return, he was not allowed to

enter the unit premises. Subsequently, he was informed by the

respondents that his name has been deleted from the list of

persons going to Congo on UN Mission.

4. On 20th September 2005, the petitioner wrote a

letter to Chief Vigilance Commission (for short „CVC‟)

highlighting certain corrupt and improper practices in his Unit.

The Army Headquarter ordered a Court of Inquiry at Delhi to

investigate into the petitioner‟s complaint. Petitioner alleges

that the inquiry was completed without any opportunity given

to him as per requirement of Rule 180 of the Army Rules (for

short "the Rules").

5. The petitioner had filed a writ petition in this Court

against the denial of his place in the UN Mission vide WP (C)

No.1918/2006. In the counter affidavit filed in that case, the

respondents had submitted that the petitioner absented himself

from 09th to 16th August 2005 and thus became ineligible for

proceeding on the UN Mission to Congo under the provisions of

Para 453 of Regulations for Army.

6. It is further the case of the petitioner that without

finalization of disciplinary case he was moved to a different

formation in eastern command.

On August 2007 the petitioner was moved to HQ 24

Mountain Brigade in Meghalaya. Finally in September 2007 the

petitioner was attached to 15 Jat Regiment, which is his present

Unit and moved to Umroi Cantt. The petitioner approached the

authorities to shift the venue of the disciplinary proceedings,

GCM at Delhi because of non-availability of witnesses and

other evidence at Umroi Cantt., Meghalaya.

On 19th April 2008 the petitioner was informed that

the General Court Martial against petitioner is being

assembled at Umroi Cantt on 28th April 2008.

7. On the strength of these facts, the learned counsel

for the petitioner has argued that the action of the respondents

directing the assembly of GCM at Umroi cantt is an arbitrary

one, and the use of Section 124 of Army Act, 1950 by the

respondents is inappropriate, arbitrary and illegal. The learned

counsel for the petitioner further contended that since the

alleged offence/ incidents took place in Delhi, the cause of

action had arisen in Delhi and the entire gamut of evidence on

the subject is available in Delhi and conducting GCM at any

other place would put the petitioner at disadvantage and

seriously affect the petitioner‟s defence and therefore is a

denial of fairness of procedure. The court of inquiry in the

subject matter has also taken place in Delhi. The petitioner has

submitted that he is holding the rank of Sepoy and financially is

not in a position to defray the cost for calling the witnesses from

Delhi to Umroi Cantt. and he is not able to find a lawyer and it is

further alleged that the respondents have turned down his

request for providing him with a lawyer. Further, he alleges

Umroi Cantt to be a remote and militant infested area. Last

aspect contended by the learned counsel for the petitioner is

that Section 124 Army Act read with Para 452 ( C) and Para 453

(I) of Regulations says that defence of a person cannot be

jeopardized by shifting a trial by Court Martial. Again the

learned counsel contended that the petitioner deserves a fair

trial to prove his innocence and conducting the GCM at such a

remote place will put him to disadvantage.

8. Per contra, the learned counsel for the respondents

has refuted all the above contentions of the petitioner. The

respondents have refuted the claim of the petitioner that he was

enrolled with the Army in the year 1994. The respondents have

explained that the petitioner was enrolled on 25th February,

1995.

The Sub-stratum of the respondents‟ case is that the

petitioner is a habitual offender, which is evident from the

punishments awarded to him enclosed as Annexure P-2.

According to the respondents, petitioner was posted to the 3rd

battalion of the Mahar regiment which was deployed on a

United Nations mission in Democratic Republic of Congo

(MONUC) from February, 2005 to March, 2006. The unit

concentrated at Delhi in November 2004 for pre-induction

preparations which included inter alia selection of personnel.

The petitioner was nominated for the U.N. mission in the second

six monthly rotation of the unit based on the selection carried

out according to the Qualitative Requirements laid down by the

Army headquarters. In fact, the formalities like opening of Non-

resident Employee Account, medical examination, passport

and visa in respect to the petitioner were completed and his

name was included in the list forwarded to the ministry of

defence, Government of India. The learned counsel for

respondents submitted that the petitioner absented himself

without leave from 09th to 16th August 2005 and as such he had

committed an offence under Section 39(a) Army Act and

therefore liable for disciplinary action and thus he became

ineligible for proceeding on the United Nation‟s mission under

Para 453 of the Army Regulations. The impugned Para 453

states "that no individual can be posted away from his unit/

formation against whom a disciplinary case is pending till

disposal of the case". The petitioner was declared unfit for

induction to the mission by the board of officers to make

selections, which has been convened on 15th August, 2005.

Respondent No.4 submits that since the petitioner was placed

under Headquarters, Delhi area for all administrative and

disciplinary matter, he could not be posted away under a

different command.

9. In the light of the defence taken by the respondents,

the learned counsel for the respondents has further opposed

the allegation of the petitioner that he proceeded on leave on a

verbal sanction from Subedar Dilip Ghewande, and has

contended that the same could not be proved by any witnesses

or written record. In fact, the petitioner did not approach the

authorities including the commanding officer for leave and

absented himself at his own will. The learned counsel for

respondents submitted that in fact it was the then officer

commanding, rear, Captain Ajay Kumar who realized that the

petitioner was illegally absent; therefore he contacted him on

cell phone asking him/petitioner to return. However, the

petitioner paid no heed to him. The petitioner was well aware

of his illegal absence as well as consequences of his absence.

10. The learned counsel for the respondents further

explained that even before the petitioner could be punished for

the offence of absenting himself without leave, he filed a

complaint against the then commanding officer and it was due

to this reason it was legally not possible to pursue his case by

the same commanding officer as it would bound to cause

prejudice and result in grave miscarriage of justice to him. The

respondents contended that allegations levied by the petitioner

against the unit and the officers are an afterthought due to his

frustration on being excluded from the UN mission.

In response to the petitioner‟s contention, learned

counsel for the respondents averred that a court of inquiry was

ordered by HQ Delhi area by order dated 19th February 2006

and upon finalization of the inquiry, a suitable disciplinary

action was asked to be initiated against the petitioner for

committing the following offences:

"1. For making false accusations against superior authority punishable under Section 56 (a) of the Army Act.

2. Making correspondence in violation of para 557 of the regulations of the Army 1987.

3. For being absented without leave with effect from 9th - 16th august 2005 punishable under Section 39 (a) of the Army Act 1950."

The respondent has thus refuted the claim of

petitioner that he was being moved to a different command

without finalization of court of inquiry.

11. Learned counsel for the respondents apprised this

court that the petitioner was attached with 4/9 Gorkha Rifles

for finalization of disciplinary action. The charges were heard

by commanding officer Gorkha Rifles and the case was

adjourned for evidence to be recorded in writing. The

summary of evidence was recorded without prejudice and

forwarded to the Deputy Judge Adjutant General,

Headquarters 4 corps for advice. The General Officer

commanding 21 mountain division on April 10, 2008 ordered

assembly of GCM.

The learned counsel for the respondents has alleged

that the petitioner has failed to produce any evidence either

oral or documentary to support his allegations against the

respondents. Respondent No. 4 has refuted the petitioner‟s

claim that he was arbitrarily moved to a different command

and has submitted that the petitioner was part of the 3rd Mahar

regiment and when the said regiment returned from Congo UN

Mission, it got posted to the Eastern command and thus the

petitioner moved with the unit as well. He was not posted

anywhere in contravention to Para 453 of the Regulations for

the Army. Further, the petitioner was attached with 4/9 Gorkha

Rifles as it was located in the Umroi Military Station where his

parent unit 3 Mahar was also located.

12. The respondents also refuted the claim of petitioner

that Umroi Cantt. is militant infested and has submitted that

Umroi is a peace Cantt. where all requirements including that

of a lawyer can be fulfilled. In fact, the petitioner was attached

to the Gorkha Rifles with a view to give him a fair chance to

defend himself.

The learned counsel for the respondents has

submitted that the subject of the GCM is a unit affair and

involves men in army and thus petitioner‟s request for civilian

witnesses is questionable. The respondents have submitted that

the GCM is being conducted at Umroi Cant., where the

petitioner‟s present and parent unit is located, so that a fair trial

can be carried out and petitioner gets maximum chance to

defend himself.

13. We have heard learned counsels for both the parties

at length and also have gone through written submissions of

both the parties.

14. Whether the court martial should assemble at Delhi

instead of Umroi Cantt is the only short question falling for

consideration in this writ petition.

15. Section 124 of the Army Act, 1950 clarifies the legal

position in this regard. It says, "Place of Trial: any person

subject to this act who commits any offence against it may be

tried and punished for such offence in any place whatever."

The above provision clearly posits that the action of

respondent cannot be said to be illegal or arbitrary.

16. In the background of the petitioner‟s contention

that he was moved to Eastern command and then to 4/9 Gorkha

Rifles is in contravention of Para 453 of Army Regulations, we

took note of the said Para 453 and the submissions of the

respondents. Respondent has submitted that after the

petitioner‟s unit 3 Mahar came back from the UN mission in

Congo, the petitioner moved with his unit only. The petitioner

was attached to 4/9 Gorkha regiment in Umroi military station

where his parent unit was located. He was shifted to twang in

Arunachal Pradesh because the summary of evidence was

being recorded there. As soon as the recording was complete,

he was again shifted back to Umroi. We hold no qualms in

upholding the submission of the respondent that the petitioner

moved with his unit only, and was not posted anywhere other

than his unit or command or contrary to the aforesaid Para 453

of military regulations.

The petitioner has alleged that he would not get a

fair trial if the GCM proceedings take place at Umroi. However,

the fact cannot be neglected that the respondents have taken

care that the GCM proceedings take place at the location of his

parent unit which is Umroi Station. This way the petitioner could

produce witnesses from his parent unit to ensure maximum

fairness. It is seen that the order is not without jurisdiction and

has been passed after compliance of the due procedure. The

action of the respondents is completely in conformity with the

law and is not required to be interfered with by the court.

Records do not reflect breach of any rules as well as the

principles of natural justice. Petitioner was unauthorisedly

absent. Armed forces are required to maintain discipline and

unauthorized absence cannot be ignored particularly when

petitioner is unable to produce /place on record any plausible

explanation much less a sufficient reason for his unauthorized

absence.

17. We also fail to see any merit in the petitioner‟s

allegation that he has been discriminated against in his

selection for the UN Mission. It is clear from the counter

affidavit of the respondents that not only he was selected, but

also the formalities regarding his moving to Congo had also

been initiated.

18. In view of the aforesaid reasons, we find no merit in

respect of any of the aspects urged on behalf of the petitioner.

19. The writ petition being devoid of any merit is

hereby dismissed.

20. No costs.

S.L. BHAYANA, J.

B.N. CHATURVEDI, J.

April    24, 2009