Delhi High Court
Savitri Sharma vs Union Of India & Others on 18 March, 2010
Author: A.K.Sikri
Reportable
* IN THE HIGH COURT OF DELHI AT NEW DELHI
WP (Crl.) No.412 of 1997 & Crl. M.A. Nos.7680, 11887/2005
Reserved On: February 03, 2010.
% Pronounced On: 18th March, 2010
Savitri Sharma .....Petitioner
through : Ms. Kamini Jaiswal, Senior
Advocate with Mr.Divyesh
Pratap Singh, Advocate.
VERSUS
Union of India & Others .....Respondent
through: Mr. Manoj Ohri, Advocate/APP.
CORAM :-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of Local newspapers may be allowed
to see the Judgment?
2. To be referred to the Reporter or not?
3. Whether the Judgment should be reported in the Digest?
A.K. SIKRI, J.
1. This writ petition, as originally filed, was in the nature of a habeas
corpus petition filed by the petitioner, who is the wife of Shri G.L.
Sharma (hereinafter referred to as „Sharma‟) for the production of
Sharma, who had gone missing while in the service of Army.
However, with the passage of time, this petition has taken a
different turn. Sharma has not been traced and we are now
concerned with the terminal and other pensionary benefits, which
could be admissible to the petitioner as widow of Sharma on the
premise that he is presumed dead, though solving the mystery of
Sharma‟s disappearance remains the focal point in shaping the relief
to which the petitioner would be entitled to.
2. The events leading to the filing of the writ petition as well as the
circumstances/developments, which led to altering the stance of the
petition, may be recapitulated in brief.
3. Naib/Risaldar (RT) Shri G.L. Sharma had joined the Indian Army
in the year 1982. At the relevant period, i.e., 1991-92, he was posted
with 43rd Armed Regiment of the Indian Armed Forces at
Pathankot. He was Naib/Risaldar working as a religious teacher.
As per the averments made in the petition, problem began when
Col. Bikramjit Singh took over as the Commanding Officer in that
Unit and when he was advised by Sharma not to do anything which
might deteriorate the communal harmony of the Unit. It is alleged
that the behaviour of Col. Bikramjit Singh, Commanding Officer
was not such as to generate confidence and faith amongst his
subordinates belonging to other communities. He had even ordered
and got demolished a mosque in May 1991. He was also indulging
in number of corrupt practices like embezzlement of Government
funds, forgery of documents, illegal activities and using soldiers as
personal servants and sending them to their relatives to do their
household jobs, misuse of ration supply and issuance of railway
warrants for wrong stations, etc. When Sharma apprised him of the
deteriorating morale of Jawans and damage done to the communal
harmony to the Unit, he was threatened by the Commanding
Officer of dire consequences. Sharma was constrained to report to
the Brig. Commaner 94(I) Armed Brigade against Col. Bikramjit
Singh as per the provisions of Rule 26 para 317 of Defence Service
Regulations. However, he was shocked when, as a result of this
complaint, he was reportedly discharged from the Unit. This
discharge was triggered on the basis of forged letter dated
10.02.1992 allegedly written by Sharma seeking his resignation.
On coming to know this fact, Sharma protested and wrote a letter of
complaint to the Brigade Commander on 07.04.1992 complaining
about the forged letter, as he had not given any application of
discharge. In response, the Brigade Commander called Sharma on
18.04.1992 in the presence of C.O. However, even when Sharma
maintained that he had not given any discharge letter, Brigade
Commander refused to set up Court of inquiry in order to favour the
then C.O. On the same night, various Jawans came to the house of
Sharma at the behest of C.O. and threatened the entire family of dire
consequences. Because of this threat, Sharma was forced to send his
family back to his native place and after that he returned to the
Unit. However, the petitioner thereafter did not receive any letter
or communication from Sharma. When she did not hear about
Sharma, she made representations to the Commanding Officer,
Chief of Army Staff, the Defence Minister and the President of India
on 20.11.1995, which was followed by another representation. After
few days, she found that the discharge order of Sharma, her
husband, was cancelled and now he had been declared as
"absconder". According to the petitioner, her husband, Sharma was
in the Unit in April, 1992, but his whereabouts had been concealed.
She suspected that he was under illegal detention of Army Officers,
particularly, Commanding Officer. This forced her to file the
present petition for habeas corpus.
4. Notice to show cause was issued to the respondents on 30.05.1997.
The respondents appeared and filed the affidavit taking the plea that
Sharma was declared „deserter‟ as a result of a Court of Inquiry as
he was not in illegal custody. This Court summoned the Court of
Inquiry record. After going through the contents of the Court of
Inquiry proceedings and various facts brought on record by the
petitioner including affidavits of four officials/ex-officials of the
Army, who had stated in the affidavits that Sharma was in the Unit
on 19th/20th April, 1992, this Court passed the order dated
13.04.1998 directing further probe into the matter by the
Directorate of Military Intelligence. This order was modified on
21.09.1998 to the extent that inquiry would be conducted by the
General Officer Commanding (GOC), 18, Infantry Division
(RAPID) and report in this regard would be submitted to the Court
after conducting the inquiry, the report was submitted. We shall
refer to the findings of this Court of Inquiry later at an appropriate
stage. We may also point out at this stage that after the report of
the court of inquiry was received; the petitioner had moved
application for amendment of the petition, which was allowed. In
the amended writ petition, the petitioner had claimed the following
relief:
"a) issue rule nisi asking the respondents why a writ in the
nature of habeas corpus or any other appropriate
writ/writs, direction/directions, order/orders be not
issued directing the respondents to produce the husband
of the petitioner Sh. G.L. Sharma Nb. Risaldar 43 A.R.C/o
56 A.P.O.
b) after show cause if any, the rule may kindly be made
absolute against the respondents.
c) the Haryana Govt. may please be directed to make
necessary arrangements for the safety and security of lives
of the members of family of the petitioner and so that the
petitioner‟s may live at her village without fear of police,
as an independent citizen of India.
c(a) to punish the guilty officials in accordance with law in
view of the findings of the COI that the guilty officials
have committed serious offences and have indulged in
anti-national activities.
c)(b) the petitioner husband having been illegally removed and
killed the respondent. The petitioner are (sic.) eligible for
all salary, pay and allowance from 19.04.1992 till date.
The petitioner is also eligible to suitable compensation.
d) and/or issue any other appropriate writ as this Hon‟ble
Court may deem fit and proper in the facts and
circumstances of this case."
Prayers (a) to (c) reproduced above were the same, which were
in the original writ petitions. Prayers C(a) and C(b) were added.
5. To complete the sequential narration of developments, we may
point out that after perusing the record of Court of Inquiry, this
Court passed the order dated 20.04.1999 directing that the
petitioner, wife of missing Naib/Risaldar G.L. Sharma, shall be
given the benefit in terms of Government of India Memorandum
dated 03.06.1998 and all other Rules and provisions applicable in
that behalf. The effect of this order was to grant terminal benefits
and pensionary benefits to the petitioner. Writ petition was
disposed of with these directions.
6. The petitioner was not satisfied with the disposal of the writ
petition in this manner. She filed Special Leave Petition
(Crl.)2553/1999 challenging the aforesaid order. In the said SLP,
orders were passed on 13.10.2000 remanding the case back to this
Court for a decision on merits. Thereafter, on 23.10.2000, the
following orders were passed:
"During the course of arguments it was agreed by the petitioner
that without prejudice to her rights she is prepared to accept the
salary/pension/gratuity or whatever is due according to rules,
from the year it was due i.e. 1992 till date. The question
whether she is entitled to full salary or compensation will be
considered when the petition is finally decided on merits. Major
Vijay Kumar appearing on behalf of the respondent states that
papers are already with the petitioner. Counsel for the
petitioner states that the petitioner after signing the same will
handover same to the respondent within two weeks.
Respondent will pay her the dues within eight weeks thereafter.
Belongings of Naib Subedar G.L. Sharma be given to his wife,
petitioner herein.
Let the respondent file an affidavit indicating as to what action
has been taken against the erring officials and the report of the
enquiry. Affidavit be filed before the next date of hearing."
7. The petitioner, as a consequence, was paid gratuity, arrears and
salary as well as pension. She is receiving monthly family pension
as well with effect from 01.01.1996.
8. At the time of arguments of this writ petition before us, it was
conceded by both the counsel that these are the additional prayers,
introduced by way of amendment, with which we are concerned
now and the learned counsel for the petitioner did not press the
prayer for production of Sharma accepting the fact that it was not
possible when whereabouts of Sharma were not known for last 18
years and we have to proceed on the basis that he is presumed dead.
9. Insofar as action against guilty officials is concerned, the
respondents filed the affidavit in which it was stated that
administrative action was initiated against Col. Bikramajit Singh
(now Brigadier) and Captain (now Major) P.K. Yadav and were
punished and the grievance of the petitioner is that they are let off
leniently. Insofar as claim of salary, pay and allowances to the
petitioner from 19.04.1992 till date and the compensation is
concerned, the petitioner is seeking on the plea that her husband
G.L. Sharma had been illegally removed and killed by the
respondent. It is on this aspect that counsel for both the parties had
argued the matter at length.
10. In order to deal with this aspect, it would be necessary to go
through the findings of the Court of Inquiry held pursuant to the
directions on this Court. This Court of Inquiry was conducted by
Brig. Rajendra Kumar, Deputy General Officer Commanding and
three Members, two out of whom were Deputy Commander and the
third was Commanding Officer. This Court of Inquiry examined
various witnesses including four persons who had filed affidavit in
this Court supporting the version of the petitioner. On that basis, it
returned certain findings in respect of the allegations made by the
petitioner in the writ petition regarding demolition of mosque in
May 1991, corrupt practices and discharge of Sharma on the basis of
purported resignation letter.
11. Court of Enquiry is of the opinion that relocation of Masjid and
making changes was part of the duty of the Commanding Officer
and no offences had been committed; there was no embezzlement of
funds and allegation that jawans were made to work as personal
servants was based on hearsay. Insofar as allegation of threatening
Sharma is concerned, the Court of Inquiry found that the
Commanding Officer had asked him to participate in entertainment
programme being organized for all ranks and their families on
Regiment‟s raising day, but he refused to do so. His refusal had
angered the Commanding Officer and the Commanding Officer,
however, felt that he should not have lost his cool. In respect of
alleged discharge application of Sharma, Court of Inquiry found that
no such application was made by Sharma. Therefore, Sharma‟s
reinstatement with full benefits to him was recommended.
12. The bone of contention is the disappearance of Shama. The
allegation of the petitioner is that on 18th/19th April, 1992, Sharma
took his family out of Unit and after dropping them in the village he
went back to the Unit and thereafter he had mysteriously
disappeared and/or kept in illegal confinement by Col. Bikramajit
Singh and/or eliminated by him/at his instance. The respondents,
however, claimed that he never returned back to the Unit. The
Court of Inquiry has specifically dealt with this aspect after
narrating the circumstances leading to disappearance of Sharma on
the basis of deposition of witnesses and materially produced before
it. The Court of Inquiry is of the opinion that the claim of the
petitioner that Sharma was held in illegal custody by the Army was
not correct. However, at the same time, he could not be accused on
desertion, as there was no intention on his part, but the
circumstances created by the Unit forced him to abscond. The
Court of Inquiry concluded that he was alive and was hiding
himself. The Court of Inquiry blamed Col. Bikramajit Singh for
creating circumstances leading to such a situation. This discussion
contained in the Report runs as under:
"Analysis by the Court
75. The start point of the conflict was transfer of Rs.5500/-
from religious fund and its highly irregular
redistribution between mandir and gurudwara till
departure of JCO RT i.e. Rs.540/- to mandir and
Rs.5359/- to gurudwara while sikh pers were 14% of the
total str of the unit. Col Bikramjit Singh did not take
kindly to Nb/Ris (RT) GL Sharma‟s resistance and
heaped insults on his when he refused to sing in the
entertainment programme. Locking up of Golak was
meant to cut Nb/Ris GL Sharma to size but it had
opposite effect on mandir contributions. Col Bikramjit
Singh decided to get rid of JCO by any means.
(emphasis supplied)
76. The forged application as positively rigged up by Ris
Gurdial Singh, who is unlikely to have taken such a step
on his own initiative. This fact was known to Col
Bikramjit Singh who accelerated the process by
instructing Capt Yadava Offg OC HQ Sqn through Adjt
Maj DS Grewal to counter sign TRs application and then
sending his head clk to fetch the same. He did not follow
correct procedure for discharge and did not interview the
JCO. He, using his personal influence with OIC records
Lt Col GSS Pall managed to get the discharge sanctioned
even when supporting docu were not submitted by the
unit. CO even kept the Bde Cdr in dark about the fact
that he had not interviewed the RT before discharge.
77. Nb/Ris (RT) GL Shama‟s complaint reach Cdr 94 (I)
Armd Bde on 10 Apr. 92 and he would have warned
Bikramjit Singh to cover his tracks. Officially Cdr asked
CO for an explanation on 16 Apr 92. Bikramjit Singh
probably got JCO RT‟s 1988 application forged to prove
that JCO was in the habit of threatening and feeling
threatened.
78. If Birg DS Dhillon considered the complaint so serious
so as to go to the unit personally he should have acted
early enough and not waited for six days after receiving
the application.
79. Bde Cdr‟s personal intervention was probably to assist
Bikramjit Singh in browbeating the RT but he did not
succeed in that. Cdr considered CO Bikramjit Singh to
be outstanding offr and therefore meriting protection. In
his meeting though all offrs and JCOs were present no
one refuted JCO RTs charge that application was forged.
If the application was genuine Ris Gurdial Singh would
have spoken. Ris Gurdial Singh also ensured that LD
Randhir Singh and Dfr Jai Bhagwan Keep quiet and also
mislead the CO.
80. The court found all allegations made by the JCO RT vide
para 23(a) to (d) above correct. Therefore, by inference
JCO RT‟s allegation that there is threat to his safely was
correct.
(emphasis supplied)
81. JCO was probably threatened into escaping so as to get
rid of him from the unit. This could have been organized
by Ris Gurdial Singh.
82. 2IC Lt. Co. HBS Pannu used his influence to get a
favourable verdict from the forensic Science Laboratory.
However, laboratory did not confirm that signatures are
of Nb/Ris GL Sharma and hence he gets benefit of doubt.
The application for discharge was forged.
83. Nb./Ris GL Sharma did not come back to the unit on 19
Apr or subsequently. The affidavits confirming this are
thought off subsequently.
84. On 03 May Nb/Ris GL Sharma was present at his village
when Ris Bachan Singh called on and stayed with him.
There is no question of Bachan Singh staying in
Sharma‟s house in the village if JCO was actually missing
while needle of suspicion pointing at Bachan Singh
among others.
85. A semi finished court of inquiry done by Maj JS Yadav of
43 Armd Regt and one done by 94(I) Armd Bde merely
recorded the story put up by 43 Armd Regt. Col
Bikramjit Singh managed to keep Cdr in dark and got
away with it.
86. In collusion with the records office docu of this case were
also destroyed.
xx xx xx
88. Court also does not find any substance in Mrs Savitri
Sharma‟s claim that her husband is held in custody by the
Army. By her own admission Nb/Ris (RT) GL Sharma
moved out of the unit of his own free will and house is
responsible for event after that he could have taken
recourse to representation to 16 Corps HQ but did not do
so. He, however, cannot be accused of desertion as there
was no intention on his part but circumstances created by
the unit compelled to abscond.
89. He has not helped his children since and they have been
left at the same level of education they were in 1992. The
family is badly off. His characteristic of sustaining any
damage to get even with opponents is clearly visible in
behaviour of Nb/Ris RL Sharma (sic. GL Sharma).
90. The Court is of the opinion that Nb/Ris GL Sharma is
alive and is in hiding. His father and few relations in the
village confirmed it. His wife declines but is not very
emphatic about his having died. His son promised to find
him and rang up on 24 Oct 98 to state he tried in
Hardwar but has not been successful."
13. Col. Bikramajit Singh, Capt. P.K. Yadav and Lt Col. GSS Pall were
held responsible for certain lapses in the following manner:
"91. The court finds col (now Brig) Bikramjit Singh responsible
for the failure of command due to:-
(a) Allowing controversial situation to develop as a personal
one to one between himself and Nb/Ris GL Sharma.
(b) Taking deliberate and unethical actions to ensure the
discharge of NB Ris (RT) GL Sharma from service using
coterie of lower rank.
(c) Did not follow the correct and laid down procedures of
processing the discharge application of NB Ris (RT) GL
Sharma.
(d) Using his personal position as CO to get the discharge
of Nb Ris (RT) GL Sharma, without the support of
documents certificates required.
(e) Mismanagement of Regt 1 Accounts incl Soda Water
Factory Accounts.
(f) Creating and supporting circumstances which led to
religious disharmony in the unit.
(g) Not taking appropriate and immediate action to
apprehend Nb Ris (RT) GL Sharma.
(h) Intimidating witnesses by asking them to file affidavit in
court when a court of Inquiry was in progress and he
was himself a witness.
(j) Removing traces of the plot from official docus like
records of JCO RT destroyed in AC Centre, papers
removed from file (letter of JCO RT to 2 IC),
supporting docus of Rs. 5000/- tfr.
(k) Misrepresenting facts of the case to higher authorities.
92. Capt (now Maj) PK Yadav, Offg OC HQ Sqn is held
responsible for the following lapses:-
(a) Failed to interview NB Ris (RT) GL Sharma when his
discharge application was put up in Feb 92 again on
return from A/L and even after the JCO (RT) had
represented against his discharge to the Bde Cdr.
(b) Extreme carelessness in performance of his duties in that he
did not know that the JCO (RT), am important functionary
of his sqn, proceeded on A/L or whether he was in stn
during leave.
(c) For dereliction of above duties as Offg OC of HQ Sqn.
(d) No offr could be so ignorant of his duties and be so deficient
of mental ability that he does not remember any details. He
was obviously part of the plot to remove NB/RIs GL Sharma
from the unit.
93. CRO Armed Corps Records Ahmednagar Lt Col. GSS
Pall is guilty of:-
(a) Colluding with CO 43 Armd Regt in discharging NB/Ris
(RT) GL Sharma without supporting docus and NOC
from the CO.
(b) Deliberately incl related docu of NB/Ris (RT) GL
Sharma‟s case in a bd of destruction knowing fully well
that the case is still in progress and rendering a false
certificate that important docu have been preserved.
However no action is recommended against him as he was
since expired. The discharge procedures followed at
Armd Corps Centre be streamlined."
14. After the aforesaid analysis, the Court of Enquiry has recorded its
opinion in the following manner:
"OPINION OF THE COURT
The court is of the opinion that:-
1. JC-128611A NB/Ris (RT) Girdhari Lal Sharma left his qr in
43 Armd Regt unit lines at 0300 hrs on 19 Apr 92 alongwith
his wife and two children of his own accord and without
proper authority. It was prompted by duress consequent to
perceived threat to his own life and safety of his family
members. Indian Army is not responsible for his security
till he rejoins or is apprehended.
2. Nb/Ris (RT) Girdhari Lal Sharma is not held in any type of
military custody.
3. IC-29186x Col (Now Brig) Bikramjit Singh then CO of 43
Armd Regt is blamed for lapses leading to creation of
circumstances which were partially responsible for the
disappearance of Nb/Ris (RT) Girdhari Lal Sharma. Adm
action be taken against Col (Now Brig) Bikramjit Singh for
failure of command due to:-
(a) Being responsible for promoting and maintaining
disharmony in the unit during his command tenure.
(b) Resorting to unethical practice in the fraudulent
discharge of JC-128611A Naib Risaldar (RT)
Girdhari Lal Sharma.
4. IC-45372X Capt (Now Maj) PK Yadav then offg OC HQ Sqn
is blamed for dereliction of duty and disciplinary action be
taken against him for not adhering to proper procedures in
processing the case of discharge of JC-128611A Nb/Ris (RT)
GL Sharma of 43 Armd Regt.
5. JC-195318P Ris Bachan Singh is guilty of not apprehending
a deserter when sent there specifically to do so.
6. Lt. Col. GSS Pall, now dead, then CRO Armd Corps Records
is guilty of malpractices in discharge of Armd Corps pers and
wrongful destruction of records. Since the offr has expired
necessary procedures be streamlined in the Armd Corps
Centre to prevent their reoccurrence.
7. IC-15871X Brig DS Dhillon then Cdr 94(I) Armd Bde is also
guilty of not taking prompt action on application of Nb/Ris
(RT) GL Sharma and extending unwarranted protection to
his favourite subordinate.
8. JC-138122H Ris Gurdial Singh (now retd as Hony Lt) is
guilty of creating disharmonious atmosphere in the unit by
his unethical behaviour and forgery of docu in the unit.
Appropriate action be taken against him through civil
authorities.
9. Nb/Sub (RT) Girdhari Lal Sharma‟s absence cannot be
treated as desertion and should be regarded as „absconding‟.
He is guilty of :-
a) Not taking recourse through proper channel of
Comd for redressal of his grievances.
b) Absconding military service since 19 Apr 92 till
date.
10. If Nb/Sub (RT) Girdhari Lal Sharma rejoins duty he be:-
a) Reinstated into the Army Service with full benefits.
b) Disciplinary action be taken against him for charges
at para 9.
c) Posted to another unit.
11. If Nb/Sub (RT) Girdhari Lal Sharma is proved dead a family
pension from eh date of death is recommended for Mrs.
Savitri Sharma.
12. If Nb/Sub (RT) Girdhari Lal Shama does not rejoin and is
not proved dead a petition be made to AWWA Chairperson
for alleviation of poverty. A one time grant of Rs.20,000/- is
recommended.
13. The household effects of Nb/Sub Girdhari Lal Sharma still
lying in custody of 43 Armd Regt be returned to Mrs Savitri
Sharma after a unit conditioning board. Damages caused due
to storage be paid for by 43 Armd Regt."
15. The reading of the aforesaid extracts of the Enquiry Report brings
out the following significant aspects:
(a) Col. Bikramajit Singh did not like Sharma‟s resistance to
some irregular activities of the Col. and, therefore, he
decided to get rid of Sharma by any means. Application
for discharge of Sharma was forged by Ris. Gurdail
Singh, who could not have taken such a step on his own
initiative. This was known to Col. Bikramajit Singh,
who not only accelerated the process of discharge, but
followed corrupt procedure for discharge. He even kept
the Brigade Commander in dark about the fact that he
had not interviewed Sharma before discharge.
(b) Even Brig. D.S. Dhillon did not take remedial measures
when Sharma complained against Col. Bikramajit Singh.
His personal intervention was to assist Col. Bikramajit
Singh in browbeating Sharma.
(c) Further, circumstances were created which forced
Sharma to leave the unit. Even semi-finished inquiry
was conducted by Maj. J.S. Yadav and in collusion with
the records of his documents of this case were also
destroyed.
(d) Though the Court of Inquiry was of the opinion that
Col. Bikramajit Singh and others were responsible in
harassing Sharma, at the same time, the Court of
Inquiry did not accept the claim of the petitioner that
Sharma had returned back to Unit on 19th April, 1992 or
subsequently. Versions of Dfr Raghvinder Singh and
Dfr Ramesh Pal Singh in the affidavits filed in the Court
were accepted by the Court of Inquiry. These persons
appeared as witnesses in the Court of Inquiry also.
However, according to the Court of Inquiry,
circumstances narrated in Para 87 and reproduced
above did not support the story contained in those
affidavits.
16. The aforesaid report of the Court of Inquiry clearly holds that the
then Col. Bikramajit Singh and few other names are squarely
responsible for creating unbearable circumstances for Sharma.
Therefore, it cannot be denied that Sharma felt that he and his
family members were unsafe in the Unit because of the various
illegal acts on the part of the superior officers. Admittedly, under
these circumstances, he was forced to leave the unit on 18/19th
April, 1992. According to the petitioner, his intention was to
ensure safety of his wife and children and after leaving them at their
village, he returned back to the Unit. Thereafter, since 19.04.1992,
he went missing. The Court of Inquiry has, however, found that he
did not return to the Unit at all.
17. Since this is the difficulty in the way of the petitioner, which she has
to surmount, the learned counsel for the petitioner made fervent
effort to dislodge the aforesaid finding of the Court of Inquiry. Her
submission was that on this aspect, the Court of Inquiry erred. She
highlighted the illegal and threatened acts of the then Commanding
Officer and other officials and their irresponsible behaviour, who
acted in a motivated, partially and biased manner throughout. Her
submission was that the petitioner‟s husband was on duty when he
was abducted. The guilty officers named herein are fully
responsible for his disappearance and murder. He was „not missing‟
but had been „eliminated/murdered‟. Placing strong reliance upon
four persons who had filed affidavits, she submitted that they were
eye witnesses to the petitioner‟s husband in illegal custody of the
guilty officials, who very well know as to what they had done to
Sharma. She argued that in such a scenario, ratio of Sucha Singh v.
State of Punjab, AIR 2001 SC 1436 shall get attracted wherein the
Supreme Court has held that it is only the abductors who can tell
about the whereabouts of an abducted person. If the abductors do
not want to tell, then the Court is free to consider that the
abductors have killed the abducted person.
18. Her alternate submission was that in any case, Sharma could be
treated as "dead on duty" on account of circumstances created by
the guilty officials. It was more so when the Army Authorities had
failed to unearth the genesis behind the disappearance of Sharma
from 19.04.1992 to date. They had also failed to trace out Sharma,
although it was their responsibility. Dilating her submission
predicated on Supreme Court judgment in the case of Sucha Singh
(supra), she argued that the following dicta laid down by the
Supreme Court in above noted case, while making reference to the
case of Stae of West Bengal Vs. Mer Mohammad Omar [2000 (8)
SCC 382], this Court will be justified to draw a presumption that
the abductors themselves could be the killers of the abducted victim,
unless they explained as to what they did with the victim. This
approach would be in tune with Section 114 of the Indian Evidence
Act in a situation like this. She specifically placed reliance on the
following observations :-
"The pristine rule that the burden of the proof is on the
prosecution to prove the guilt of the accused should not be
taken as a fossilized Doctrine, as though it admits no
process of intelligent reasoning. The Doctrine of
presumption is not alien to the above rule. On the other
hand, if the traditional rule relating to burden of proof of
prosecution is allowed to be wrapped in pedantic coverage,
then the offenders would be major beneficiaries and the
society would be the casualty". The Supreme Court has
further held in the above case that: "presumption of fact is
an inference as to the existence of one fact from existence
of some other facts, unless the truth of such inference is
disproved. Presumption of fact is a rule in law of evidence
that a fact otherwise doubtful may be inferred from certain
other proved facts. When inferring the existence of a fact
from other set of proved facts, the Court exercises a
process of reasoning and reaches a logical conclusion as
the most probable position. The above principle has
gained legislative recognition in India when Section 114 is
incorporate in the Evidence Act. It empowers the Court
to presume the existence of any fact, which it things likely
to have happened. In that process, the Court shall have
regard to the common course of natural events, human
conduct etc. in relation to the facts of the case."
19. She also submitted that the reasons given by the Court of Inquiry
discarding the deposition of Dfr Raghvinder Singh and Dfr Ramesh
Pal Singh were totally unfounded. In the above edifice, her plea was
that following reliefs and submitted that following relief be granted
to the petitioner as detailed in rejoinder affidavit dated 12.04.2005:
i. Period from 19.04.1992 to March Full pay and
1994 - full pay and allowances allowance for 24
for Nb. Ris RT months for
Nb/Ris.Rt
6300x12x2
Rs.1,51,200.00
ii. Period from April 94 to Full pay and
05.04.2004 when the JCO would allowances for 7
have reached superannuation on years for
attaining the age of 55 years JCO Risaldar
would have promoted up to the 95000x12x7
rank of Risaldar Major Rs.7,98,000.00
iii. Liberlised special family pension For 20 years for
to the petitioner Savitri Devi Risaldar as
from April 2001 to April 2021 admissible 9500
when she would attain the age of x 12 x 20
70 years normal expectancy of Rs.22,80,000.00
life under G.O.I. letter dated
30.10.1987
iv. Liberal special pension after April
2021 if the petitioner survives
v. Mental torture, harassment and Rs.15,00,000.00
loss of consortium and
irreparable loss of studies and
Careers of three children
Total Rs.47,29,200.00
In support of her plea that the petitioner was entitled to
special benefits and liberalized pension, she referred to OM dated
03.02.2000 and 30.10.1990 respectively.
20. Learned counsel for the respondent, on the other hand, submitted
that there was no challenge to the Court of Inquiry and, therefore, it
was not permissible for the petitioner to question the findings of the
Court of Inquiry, that too when the petitioner had herself largely
relied upon the same inquiry to support her claim insofar as findings
related to the harassment of Sharma are concerned. It was further
submitted that in any case the findings were based on the evidence
produced before the inquiry and there was no reason to disturb the
same. It was also submitted that case of the petitioner was not
covered by OM dated 03.02.2000 or OM dated 30.10.1990.
21. We have given our thoughtful consideration to the respective
submissions. We are forced to comment that the circumstances
leading to missing of Sharma were the creation of Col. Bikramajit
Singh and his other accomplices, who acted at his instance. Sharma
was repeatedly harassed by these officials, who went to the extent of
even forging the application of discharge to ease him out of the
service. When Sharma protested against such a discharge to the
higher officers, viz. Col. Dhillon in the case, even he, instead of
setting the things right, shielded Col. Bikramajit Singh. All these
must have emboldened Col. Bikramajit Singh and his accomplices
who extended threats to him and forced him to leave the unit on
18.04.1992. Thus, compelled by the circumstances/situation
created by Col. Bikramajit Singh and others, he left the Unit for his
safety and that of his family. These facts not only emerge from the
records, there are also categorical findings to this effect by the
Court of Inquiry itself. Report of the Court of Inquiry was accepted
by Maj. General, Officer Commanding who made following
recommendations while approving the findings :-
"I recommend that:-
(a) The following action be taken as regard JC-128611A Naib
Risaldar (RT) Girdhari Lal Sharma of 43 Armoured Regt.
and his family:-
(i) In case JC-128611A Naib Risaldar (RT) Girdhari
Lal sharma reports back to Army Authorities, he be
re-instated with full financial benefits from the date
of his absence from the unit i.e. 19 Apr. 1992 and be
posted to any unit other than 43 Armoured
Regiment.
(ii) In case JC-128611A Naib Risaldar (RT) Girdhari
Lal Sharma is not found and concrete proof of his
death is furnished, full family pension be admitted
to the family with retrospective effect from the date
of his disappearance from the unit i.e. 19 Apr. 1992.
(iii) In case JC-128611A Naib Risaldar (RT) Girdhari
Lal Sharma is not found and concrete proof of his
death is not available, a one time distress elevation
grant of Rs.20,000/- (Rupees Twenty Thousand
Only) be remitted from appropriate Welfare Funds.
(iv) JC-128611A Naib Risaldar (RT) Girdhari Lal
Sharma cannot be absolved of the responsibility of
absconding instead of taking recourse to
approaching a higher commander in the chain for
redressal of grievances. In the event of his
reporting back to Army Authorities, disciplinary
action be initiated against Naib Risaldar (RT)
Girdhari Lal Sharma for absence without leave
from the unit with effect from 19 April, 1992."
He also directed administrative action again Col. Bikramajit
Singh (then Brig.) and disciplinary action against P.K. Yadav and
Bachhan Singh.
22. The crucial question, however, is as to whether Sharma returned
back to the Unit on 19.04.1992 or 20.04.1992 after ensuring the
safety of his family and thereafter went missing while in the Unit?
Findings of the Court of Inquiry are categorically in this behalf,
which are based on detailed analysis of the evidence produced before
it, as is clear from the following :-
83. Nb./Ris GL Sharma did not come back to the unit on 19
Apr or subsequently. The affidavits confirming this are thought
off subsequently.
84. On 03 May Nb/Ris GL Sharma was present at his village
when Ris Bachan Singh called on and stayed with him. There is
no question of Bachan Singh staying in Sharma‟s house in the
village if JCO was actually missing while needle of suspicion
pointing at Bachan Singh among others.
xx xx xx
87. Dfr Raghvinder Singh is not very sure of the date. As per
him it could be 19 Apr 92 or 20 Apr 92. However, the
following circumstances do not support the story:-
a) Dfr Raghvinder Singh is not very sure of the date.
As per him it could be 19 Apr 92 or 20 Apr 92.
b) Dfr Ramesh Pal Singh‟s statement to this court was
inconsistent.
c) Both the above indls had their own problems with
Col Bikramjit Singh. Dfr Ramesh Pal Singh himself
gave an application against the CO on 18 Apr 92,
the date on which the Bde Cdr came to the Unit.
d) The distance involved between Mamun and
Barwala is approx 450 km one way. The nearest
taxi stand was 6 to 7 KM form Nb Ris (RT) GL
Sharma‟s qtr at Mamun. Working 7 Kms with 2
children would have taken two hours or more.
Finding a taxi at around 0500h in 1992 at Mamun
was a distant possibility. Start time could be easily
0800h.
e) The travel time from Mamun to Barwala and back,
waiting time for the bus, likely police barricades, in
1992, enroute etc. would easily take approx 24
hours. The earliest that the JCO(RT) could have
reached back in the unit was not before day time on
20 Apr 92 and in a very tired state. During day
time could not have been trapped by the unit pers
even if they wished to do so. Since there was no
night bus service in 1992 he may be likely to have
reached during AN of 20 Apr 92 for which there is
no witness. It is obvious that both these individuals
have filed wrong affidavits. There was no mention
of these sightings in both the C of IS in 1992 and
have been added as on afterthought in 1995
onwards. It is because of this he could not have
been killed by any unit pers.
88. Court also does not find any substance in Mrs Savitri
Sharma‟s claim that her husband is held in custody by the Army.
By her own admission Nb/Ris (RT) GL Sharma moved out of
the unit of his own free will and house is responsible for event
after that he could have taken recourse to representation to 16
Corps HQ but did not do so. He, however, cannot be accused of
desertion as there was no intention on his part but
circumstances created by the unit compelled to abscond."
23. This Court while exercising its power under Article 226 of the
Constitution of India is not sitting as the appellate authority. The
scope of judicial review is limited. There is no procedural or other
infirmity in conducting the inquiry, which was conducted by senior
officials in a totally impartial manner. In fact, it is the petitioner
who relies upon the same very report for the purpose of
demonstrating the unfair and illegal treatment meted out to
Sharma.
24. We are thus confronted with a situation where Sharma did not
come back to the Unit on 19.04.1992 and, therefore, was not kept in
illegal custody by the Army authorities or any of its officials. At the
same time, blame squarely falls on the Commanding Officer and
others, who were at the helm of affairs, and ensured that he is eased
out of service and for achieving these nefarious motive, they did not
leave any stone unturned. It appears that after leaving his family to
his village, Sharma went in the hiding. Thereafter, his whereabouts
are not known. May be a person like him, who was a spiritual
teacher, renounced the world after being fed up with the cruel
treatment given to him by his superiors and his senior officials to
bring culprits to books also failed. As he is not seen or heard since
1992 i.e. 18 years, he can be presumed dead in view of the provision
of Section 114 of the Evidence Act. On this premise, we have to
adjudge the admissibility of the claims made by the petitioner.
25. The petitioner is granted family pension from 19.04.1992 itself. She
has also been released other terminal benefits. One time distress
element grant of Rs.20,000/- from Welfare Fund is also given to
here. Since Sharma did not attend the duties, he cannot be paid any
salary from 19.04.1992 till March 1994 or from 1994 to 05.04.2001
when he would have attained the age of superannuation on the
premise that he would have become JCO as claimed by the
petitioner.
26. Insofar as claim of liberalized special family pension is concerned,
the same is governed by OM dated 30.10.1990 read with OM dated
03.04.2000 which deals with special benefits in case of death and
disability in service. This is issued pursuant to the recommendation
of the 5th Central Pay Commission. It enumerates five categories,
viz., (a) to (e) under which such special benefits can be granted. In
those cases, which fall under category (d) and (e), this OM
stipulated that family pension shall be determined under the
provisions of „the liberalized pensionary award scheme‟. Learned
counsel for the petitioner submitted that the petitioner falls under
category (d), which reads as under:
"Category 'D' Death or disability attributable to acts of
violence by terrorists, anti-social
elements, etc. whether in their
performance of duties or otherwise.
Apart from cases of death or injury
sustained by personnel of the Central
Police Organizations while employed in
aid of the civil administration in quelling
agitations, riots or revolt by
demonstrators, other public servants
including police personnel, etc. bomb
blasts in public places or transport,
indiscriminate shooting incidents in
public, etc. would be covered under this
category"
27. On a bare reading, it is clear that case is not covered under this
category as the purported "death" is not the result of any act of
violence, resistance or anti-social elements. No doubt, if death of
military officer, while in service, occurs in mysterious
circumstances, then that is to be treated as attributable to or
aggravate by military service and in such circumstances, wife of the
petitioner is entitled to special family pension and children
allowance. This is the mandate of the judgment of the Supreme
Court in the case of Charanjit Kaur Vs. Union of India [AIR 1994
SC 1491]. However, that was the case where husband of the
petitioner therein was found dead under mysterious circumstances
when he was in the custody of the Army authorities. The
authorities had not disclosed to the widow the circumstances under
which circumstances her husband had received burns as his burnt
body was found. The Court of Inquiry was conducted more than
seven years thereafter returning the finding that death of her
husband was not attributable to military service. It was, however,
admitted that in the Court of Inquiry it could not be conclusively
proved that cause of death was murder or suicide. In the counter
affidavit filed to the writ petition, many averments were not
specifically traversed and casual approach was adopted. Influenced
by all these circumstances, the Supreme Court made the following
observation on the facts of the case:
"7. We are pained at the utterly irresponsible conduct of the
authorities in the present case right from the inception. We see a
good deal of substance in the allegation of the petitioner that her
husband met with his death in mysterious circumstances. It is
surprising that when the officer was not in a condition to move
on account of his ailment, and when on 16.6.1978 his condition
was considered so delicate that even his wife and children were
permitted to see him only after a great deal of persuasion, and
when he was all the while accompanied by the specialist doctor,
he was allowed to move on his own and go for his private
business to the cook house, if the version of the respondent-
authorities is to be believed. It is also difficult to believe that
when he was being airlifted at his own request, he had refused to
board the plane and instead had left for his said alleged private
business. All that thereafter was found was his charred body
with 98% burns. No enquiry whatsoever seems to have been
made and if made, its results are kept a secret. That such an
incident should have occurred in the presence of the responsible
Army officers and should go uninvestigated and in fact
completely ignored is all the more baffling. There is a good deal
in this case for which the authorities have to answer. This is
apart from the fact that till this day, the case has been handled
with culpable negligence and cynical indifference. This is a
matter which requires investigation at the highest level. We,
therefore, desire that this matter be personally looked into by
the Chief of the Army Staff."
28. It was in those peculiar and abnormal circumstances that the Court
concluded that the officer died while in service in mysterious
circumstances and his death was attributable to and aggravated by
the military service. In the present case, it is difficult to arrive at
such a conclusion in view of the aforesaid findings of the Court of
Inquiry, which was conducted pursuant to the orders of this Court
that after leaving the Unit on 18.04.1992, Sharma did not return to
the Unit at all. Therefore, we are of the opinion that the petitioner
would not be entitled to special family pension as his case is not
covered by the aforesaid OMs. Judgments cited by the petitioner
are not applicable in the instant case. She will, therefore, continue
to draw ordinary pension.
29. Insofar as claim for compensation is concerned, we are of the
opinion that it is well founded. The harassment and cruel treatment
meted out to Sharma and his family members including the
petitioner herein has led to the disappearance of Sharma. It is
established on record that he was dealt with by rough hands by his
superiors. Sharma‟s democratic way of protest to the anarchic and
despotic functioning of Col. Bikramajit Singh was met with
vengeance. Apart from continuous harassment and threats, a
serious illegality, nay, a serious offence of forging his application for
discharge was committed to ensure that he does not remain in the
Army Service. His legitimate grievance to even the higher
authorities fell into deaf ears and was taken casually, who instead
shielded Col. Bikramajit Singh. Emboldened by this, they started
extending threats to Sharma and a fearful atmosphere was created.
All this made him to run for his safety as well as safety of his family
members. If he did not return to the Unit and went somewhere else
without even informing his family about his whereabouts and did
not come into the contact with his familiar surroundings ever again,
entire blame thereof has to be borne by Col. Bikramajit Singh who
was the Commanding Officer and his associates. The Army is
known as more disciplined force. It‟s senior officers are supposed to
give helping hands to their subordinates rather than act in an
autocratic and dictatorial manner. Shabby and awful treatment
meted out to Sharma and his family is nothing short of violation of
his human rights and those violators have virtually been let off as
the administrative action taken against them is mockery of justice.
This not only sent Sharma into oblivion, but had torturous and
agonizing effect on his wife and small children. The petitioner was
deprived of the company of her husband and her children that of
their father at young age. They have, naturally, suffered mental
torture and undergone immense financial crunch. Loss of her
husband cannot be compensated in terms of money. Taking into
consideration all these factors, we award compensation of Rs.
10,00,000/- (rupees ten lakhs) to the petitioner. The petitioner
shall also be entitled to the cost of these protracted proceedings,
which we assess at Rs.50,000/-. These payments shall be paid to
the petitioner within two months from today.
30. Writ petition along with CMs is disposed of in the aforesaid terms.
(A.K. SIKRI)
JUDGE
(AJIT BHARIHOKE)
JUDGE
March 18, 2010.
pmc
