Delhi High Court

Anil Kumar vs Uoi & Anr. on 16 July, 2010

Author: Gita Mittal

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


                            Date of decision:     16th July, 2010

+                     W.P.(C) No.8441/2009


     ANIL KUMAR                      ..... Petitioner
                      Through: Mr.R.S.Dhull, Advocate

                versus


     UOI & ANR.                     ..... Respondents

Through: Ms.Barkha Babbar, Advocate

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R.MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J(ORAL)

1. The petitioner assails the summary trial proceedings

under the Army Act, 1950 conducted against him and the

punishment awarded thereunder vide the order dated 1st

March, 2004 passed by his Commanding Officer.

2. The factual matrix giving rise to the present petition is set

hereafter in brief. The petitioner was enrolled in the Army on 10th

October, 1988 and was deployed with the EME Department Battalion,

Secunderabad. While serving at 723 Field Workshop Company (7004

EME Battalion), the petitioner had cleared the examination for the

rank of Havildar Major in the Technical Entrance Exam Test

conducted in May, 2003. He was promoted to the rank Local Unpaid

Naik thereafter. He was also detailed to undergo Naik to Havildar

(NH) Cadre Course Serial No. 5 of 2004 commencing from 6 th

September, 2004 at 3 EME Centre, Bhopal and to undergo the

diploma course DAE(B)-301 w.e.f. 3rd January, 2006 at the EME

School, Baroda.

3. In the meantime, the petitioner was found to have committed

certain offences under the Army Act, 1952 for which a tentative

charge sheet dated 27th Febraury, 2004 laying the following charges

against him was drawn up:

" TENTATIVE CHARGE SHEET

The accused Number 14613036L Rank/Trade Naik VM(MV) Name Anil Kumar of 7004 EME Battalion is charged with :-

           First Charge     SUCH AN OFFENCE AS IS
           ARMY ACT         MENTIONED IN CLAUSE (F)
           SEC 52           OF SECTION 52 OF THE
                            ARMY ACT WITH INTENT TO
                            CAUSE WRONGFUL GAIN TO
                            A PERSON

                        in that he,
                        at Missamari, on 02 June, 2003 got

himself issued unauthorisedly Railway Warrant (IAFT-1752) bearing machine number 17 B- 978507 for journey from New Misamari to Una, Himachal and back for himself and his family, well knowing the fact that he had already availed free return journey warrants for the said journey in the same calender year, thus causing a loss of Rupees 8475/- (Eight Thousand Four Hundred and Seventy Five Only) to the state.


           Second Charge SUCH AN OFFENCE AS IS
           ARMY ACT      MENTIONED IN CLAUSE (F)
           SEC 52        OF SECTION 52 OF THE
                         ARMY ACT WITH INTENT TO
                         CAUSE WRONGFUL GAIN TO
                         A PERSON




                        in that he,
                       at Misamari, in the month of
           September,      2003,   got    himself   issued

unauthorisedly Railway Warrant (IAFT-1707) bearing machine number 17 B-978530 for single journey from New Misamari to Jalandhar Cantt. for his wife and child, well knowing the fact that he had already availed a free return journey railway warrant for the said journey in the same calender year, thus causing a loss of Rupees 3510/- (Rupees Three Thousand Five Hundred and Ten Only) to the state.

           Third Charge     SUCH AN OFFENCE AS IS
           ARMY ACT         MENTIONED IN CLAUSE (F)
           SEC 52           OF SECTION 52 OF THE
                            ARMY ACT WITH INTENT TO
                            CAUSE WRONGFUL GAIN TO
                            A PERSON

                       in that he,
                       at Misamari, on 28 April, 2003,

with intent to defraud, preferred his false leave Travel Concession claim and received money from CDA vide their payment authority (IAFA-468) Number Rly/CL/1522/1 dated 28 August 2003 whereas he had already drawn free railway warrant for conveyance of his family, thus causing a lost of Rs.286/- (Rupees Two Hundred and Eighty Six only)."

4. In compliance with the requirement of Army Rule 22, the

proceedings for hearing of charges before the commanding Officer

of the above charges was held on 1st March, 2004. The

Commanding Officer heard the charges as well as the prosecution

witnesses who were produced before him in the presence of the

petitioner and gave the petitioner opportunity to cross-examine the

witnesses. The records which have been placed before us show that

the petitioner declined to cross-examine the witnesses. The

petitioner also declined to make any statement or to produce any

witness in his defence.

5. On conclusion of the proceedings and hearing of the charges,

the Commanding Officer passed an order that the petitioner should

be tried summarily.

6. We may notice that so far as the summary trial of the

petitioner is concerned, he was tried on the same charges as afore

noticed. The summary proceedings against the petitioner also held

thereafter on 1st March, 2004 have also been placed before us.

7. The petitioner had entered a plea of 'guilty' to the charges laid

against him. The Commanding Officer had accordingly followed the

procedure which would so apply and had recorded the evidence of

the prosecution witnesses.

8. On a consideration of the evidence led in the summary

proceedings, and the plea of guilt, the Commanding Officer of the

petitioner awarded punishment of severe reprimand and stoppage of

pay and allowances until he made good a sum of Rs.12,271/- in

respect of the Railway Warrants which valued at Rs.8475/-,

Rs.3510/- and the Leave Travel Concession valued at Rs.286/-.

9. It is an admitted position that the said amount stands

recovered from the dues of the petitioner, to which there has been

no objection.

10. Aggrieved by this punishment imposed upon him the

petitioner has filed the present petition. The sole ground of

challenge in the writ petition which has been pressed before us is

that having regard to the nature of the allegations levelled against

the petitioner which involved fraud and mala fide intention, it was

not open to the respondent to summarily try the petitioner and that

they were bound to have proceeded against him by directing

proceedings of a Court Martial. In support of this contention

Mr.R.S.Dhull, learned counsel for the petitioner places reliance on

the provisions of Section 52 of the Army Act, 1950 and para 432 of

the Defence Services Regulations,.

11. We have heard the learned counsel for the parties and

examined the available record. Before dealing with the legal

objection which has been pressed, it becomes necessary to notice

that the petitioner had entered a plea of guilt to the charges which

were laid against him in the summary proceedings dated 1st March,

2004. No objection to the jurisdiction of the Commanding Officer

who conducted the summary proceedings nor any objection to the

punishment which was imposed was raised by the petitioner. The

petitioner also accepted the sentence awarded to him on 1st March,

2004 and has acceded to the recovery of the amount of Rs.12271/-

effected pursuant to the order dated 1st March, 2004 imposed upon

him.

12. It is also noteworthy that even before us, there is no challenge

to the factual basis of the charges levelled against the petitioner.

The plea of guilt by the petitioner is a clear admission of the

charges levelled against him.

13. It is trite that favourable exercise of writ jurisdiction is not a

matter of right for a petitioner. This Court is not bound to exercise

extraordinary jurisdiction under Article 226 of the Constitution of

India in favour of the petitioner merely on making of a legal point

( Ref: 1997 (1) SCC 134 Ramanik Lal Butta & Another Vs. State

of Maharashtra).

14. Be that as it may, we may now decide the legal objection

raised by Mr.R.S.Dhull, learned counsel for the petitioner on its

merits.

15. So far as the options of trial which are available to the Army

Authorities in respect of the offences is concerned, learned counsel

for the respondent has drawn our attention to the provisions of

Chapter 7 of the Army Act, 1950. We may notice hereafter the

provisions of Section 52, 79 and Section 80 which have a bearing in

the instant case, the same read as under:-

"Section 52, Offences in respect of property- Any person subject to this Act who commits any of the following offences, that is to say,-

(a) commits theft of any property belonging to the Government, or to any military, naval or air force mess, band or institution, or to any person subject to military, naval or air force law; or

(b) dishonestly misappropriates or converts to his own use any such property; or

(c) commits criminal breach of trust in respect of any such property ; or

(d) dishonestly receives or retains any such property in respect of which any of the offences under clauses (a), (b) and (c) has been committed, knowing or having reason to believe the commission of such offence; or

(e) wilfully destroys or injures any property of the government entrusted to him; or

(f) does any other thing with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person,

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

Section-79 Punishments otherwise than by court- martial- Punishments may also be inflicted in respect of offences committed by persons subject to this Act without the interventions of a court-martial and in the manner stated in the section 80,83, 84 and 85.

Section-80 Punishment of persons other than officers, junior commissioned officers and warrant officers- Subject to the provisions of section 81, a commanding

officer or such other officer as is, with the consent of the Central Government, specified by [the Chief of the Army Staff], may, in the prescribed manner, proceed against a person subject to this Act otherwise than as an officer, junior commission officer or warrant officer who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,-

(a) imprisonment in military custody up to twenty-eight days;

(b) detention up to twenty-eight days;

(c) confinement to the lines upto twenty- eight days;

(d) extra guards or duties;

(e) deprivation of a position of the nature of an appointment or of corps or working pay, and in the case of non-commissioner officers, also deprivation of acting rank or reduction to a lower grade of pay;

(f) forfeiture of good service and good conduct pay;

(g) severe reprimand or reprimand;

(h) fine up to fourteen day's pay in any one month;

(i) penal deductions under clause (g) of section 91;

16. We have examined the provisions of the Army Act, 1950. It

has been pointed out that the charges against the petitioner make

out an offence covered under Section 52(f) of the Army Act. Section

52(f) renders anything done by an Army personnel with intent to

defraud or to cause wrongful gain to one person or wrongful loss to

one person, an offence which, on conviction by a court martial, is

punishable with imprisonment for a term which may extend to 10

years or such less punishment as mentioned in the Army Act.

17. It is also evident from the above that the scheme of the Act

provides that so far as the infliction of punishment in respect of the

offences committed by army personnel is concerned, the statute has

permitted the same without mandatory intervention of a trial by a

court martial. Any army personnel who is charged with a

commission of offence under the Army Act, 1950, can be tried in the

manner set out under Section 79 and Section 80 of the statute as

well. The punishments prescribed under Section 52 are of a lesser

gravity other than those as prescribed in Section 80 of the Army Act.

Section 80 casts a restriction on the extent and severity of the

punishment which may be imposed if the personnel is tried

summarily thereunder without the intervention of court martial. In

this background if the submissions made by the learned counsel for

the petitioner were to be accepted, the petitioner should have been

tried by court martial and would be liable for higher punishment

under Section 52 of the Army Act.

18. Reliance has been placed before us by learned counsel for the

petitioner on para 432 of the Defence Services Regulations which

mandates that an offence involving fraud and moral turpitude etc.

will be tried by a Court Martial and that such cases will not be

disposed of summarily. It is urged that the charge against the

petitioner of having committed the offence under Section 52 (g) of

the Army Act involved fraud and moral turpitude. For this reason it

is contended that the petitioner could have tried only by court

martial.

19. We have considered the recommendations made in this

paragraph 432 of the Defence Services Regulations which reads as

follows:-

"432. Offences in respect of Public or Regimental Property-- Persons subject to Army Act committing offences involving moral turpitutde, fraud, theft dishonesty and culpable negligence involving financial loss of Public or Regimental property will be tried by court- martial or prosecuted before a civil court. Such cases will not be disposed of summarily or by

administrative action. Punishments in such cases will be deterrent and commensurate with the gravity of the offence.

The recommendation thereunder is clearly a restriction or a

bar on the discretion conferred on the authorities under Section 79

of the Army Act, 1950.

20. The question which requires to be considered is as to whether

the action of the respondents in summarily trying the petitioner, and

the orders passed as a result, would be rendered illegal for the

reason of non-compliance with para 432 of the Defence Services

Regulations. This very issue was considered by the office of the

Deputy Judge of the Advocate General. So far as the case in hand is

concerned by the opinion dated 27th February.2004 the Deputy

Judge Advocate General had opined as follows:-

"3. Admittedly, the Summary Trials in question have been held in violation of the instructions contained in the above mentioned provisions. Even the case of Nk Anil Kumar, who was charged with three separate offences of fraud/false claim, has been disposed off summarily with the award of "severe reprimand" and "stoppage of pay and allowances". The summary trials in question, thus, tend to trivalise the offence of fraud, contrary to the spirit of para 432 and para 459 of Regulations for the Army 1987 (Revised Edition).

4. Notwithstanding the above, no material has been brought on record to show any ulterior motive or malafide intention on part of the officer holding the trial in disposing of the cases summarily. In view thereof, as also considering the non statutory the nature of the aforementioned instructions, I have persuaded myself to advise non interference with the Summary trial proceedings which are otherwise legal and valid. However, the officer holding the trial needs to be advised to follow the instructions contained in the MML

and the Regulations while dealing with disciplinary/judicial matters.

5. I do not subscribe to the views of EME Records that the Summary Trial proceedings are illegal only because they have been held in violation of the Note appended below Army Act Section 52, which are non statutory in nature."

21. In this behalf, it is necessary to note that "Regulations for the

Army" have been issued under the authority of the Government of

India. The preface to these Regulations placed before us, clearly

records that these regulations are non-statutory and merely

supplemental to the relevant statutory provisions wherever they

exist and do not supplant them.

22. The action of the respondents was in exercise of statutory

power under Section 80 and is legally permissible. In this

background, the failure to try the petitioner by a Court Martial as

suggested and recommended in para 432 of the non-statutory

Defence Service Regulations having regard to the nature of the

offence committed by the petitioner, does not render the action of