Bhm (Now Ex.Hav) Nirmal Singh vs Union Of India & Ors.
2011 Latest Caselaw 985 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) No. 1345/2010

%                      Date of Decision: 18.2.2011

BHM (Now Ex.Hav)
            BHMNirmal
                 (Ex.Hav)
                       Singh
                          Nirmal Singh                        .... Appellant
                 Through Mr.D.S.Kauntee, Advocate

                                  Versus

Union of India & ors.                                .... Respondents
                    Through Mr.Jatan Singh with Mr.Ashok Singh,
                                       Advs.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

1.   Whether reporters of Local papers may be                   Yes
     allowed to see the judgment?
2.   To be referred to the reporter or not?                     No
3.   Whether the judgment should be reported in                 NO
     the Digest?



 VEENA BIRBAL, J.

*

1. By way of this petition, petitioner has prayed for issuance of a

writ in the nature of certiorari for quashing the summary punishment

order dated 28.5.2005 passed by the respondent no.3 as well as order

dated 8.10.2005 passed by the Reviewing Authority. Petitioner has

also prayed for issuance of directions in the nature of mandamus

directing respondent nos.3 & 4 to give effect to order of promotion dated

1.3.2005 approved by the DPC with all consequential benefits.

2. Briefly the facts as alleged by the petitioner are as under:-

Petitioner was enrolled in the Army (Regiment of Artillery) as

Soldier Gunner/Driver on 7th July, 1981. On 1st May, 1997, he was

promoted to the rank of Havildar. On 3rd July, 2003, he had passed

promotion cadre test for next higher promotion from Havildar to Naib

Subedar. From 22nd September, 2004 to 8th October, 2004, petitioner

had availed 12 days casual leave which was sanctioned by the

competent sanctioning authority of the respondents. On 1st March,

2005, DPC had cleared his name for promotion to the rank of Naib

Subedar and the same was also approved by the Competent Authority

but promotion was never given effect to. On 24th May, 2005, the

Disciplinary Authority framed a tentative charge sheet against him

wherein it was alleged that on 1st October, 2004, at Ferozepur, while

performing the duties as BHM of 38 Field Battery, he improperly

detailed no.14385661K NK Amrik Singh for guard duties at 2 ASD

(17FAD) despite the above named NCO having four red ink entries due

to indiscipline contrary to instructions that indisciplined persons were

not to be detailed for important guard duties. Without giving the

petitioner a fair opportunity to make any statement in defence and

without giving him an opportunity to cross examine the prosecution

witnesses the Commanding Officer tried the petitioner summarily and

awarded punishment of `Severe Reprimand' vide impugned order dated

28th May, 2005. Petitioner stood retired w.e.f 1st August, 2005 in the

lower rank of Havilder. Thereafter, petitioner filed a review petition.

Petitioner also filed a statutory petition under section 26 of the Army

Act, 1950. Finding no response, petitioner filed WP(C) 18023/2005

before this court. On 16th September, 2005, the said petition was

disposed of by the Division Bench of this court with the directions to

the respondents to dispose of the petitioner's review petition

expeditiously in accordance with law. On 8th October, 2005,

respondent no.5 rejected the review petition of the petitioner.

Aggrieved with the same, petitioner filed another petition being

WP(C) 22143/2005 before this court challenging the aforesaid rejection

order. Pursuant to coming into existence of the Armed Forces Tribunal

(hereinafter referred to as `the Tribunal'), the writ petition was

transferred to the said Tribunal and was numbered as TA 467/2009 for

adjudication. The Tribunal dismissed the said TA vide order dated 3rd

February, 2010 as barred under section 3(o)(iii) of the Armed Forces

Tribunal Act, 2007.

As the grievances of the petitioner were not redressed on merits,

the petitioner filed the present petition challenging the orders dated 28th

May, 2005 and 8th October, 2005 of respondents.

3. The stand of the respondents in the counter affidavit is that

merely because the petitioner was on 12 days casual leave from 27th

September, 2004 to 8th October, 2004, the same did not absolve him of

his responsibility in detailing unsuitable person for important guard

duty. It is stated that whenever a large guard is provided by the

Regiment, all the sub units are informed well in advance to identify and

detail suitable persons for the guard duty. The BHM has an important

duty to perform in forwarding the names of suitable persons. It is

further stated that in the present case, all the sub units of 13 Fd Regt

were informed well in time that a guard party was to be detailed at 2

ASD (17FAD) w.e.f 1st October, 2004 and accordingly the names of

suitable persons were to be detailed well in time. Petitioner at the

relevant time was performing the duties of BHM of 38 Field Battery of

13 Field Regiment and it was primarily his responsibility to ensure that

the names of suitable persons were forwarded and detailed for the

important task. However, the petitioner failed to carry out his

responsibility and improperly forwarded the name of NK Amrik Singh

who had four red ink entries against his name and such an individual

was unsuitable for the guard duty. Their further stand is that on 4th

December, 2004, LNK Gursewak Singh of 38 Field Battery and L NK

Kala Singh of 36 Field Battery who were members of the said Guard

consumed liquor and had a quarrel wherein LNK Gursewak Singh fired

at LNK Kala Singh with his service rifle, as a result, LNK Kala Singh

died due to gun shot. NK Amrik Singh was guard Commander. The

court of inquiry was ordered to investigate into the circumstances

wherein the present petitioner had given a statement that he had

detailed NK Amrik Singh as guard Commander for the said guard.

Respondents have further stated that there was no violation of any rule

or procedure while dealing with the case of the petitioner. The

Commanding Officer fully appreciated the evidence brought before him

during the hearing of charge. During the summary trial proceedings,

the petitioner pleaded guilty to the charge and was accordingly awarded

the punishment of `Severe Reprimand'. Their further stand is that all

the relevant material was supplied to the petitioner at the time of

hearing. The review petition of the petitioner was duly considered by

the Reviewing Authority and had rightly rejected as it lacked in merit

and substance. It is further stated that as per promotion rules, no

individual can be promoted to next higher rank unless disciplinary

proceedings are finalized and as disciplinary proceedings were pending,

his promotion was withheld. As per respondents, no case is made out

by the petitioner, as such no interference of this court is required.

4. Petitioner has filed rejoinder denying all the allegations made

against him and reiterated the stand taken in the writ petition.

5. Learned counsel for the petitioner has contended that as per

charge sheet the date of alleged incident is 1st October, 2004 whereas

on the said date, petitioner was not physically present in the Unit but

was on leave from 22.9.2004 to 8.10.2004, as such petitioner is not

responsible for the alleged occurrence. It is further contended that

petitioner was not given an opportunity to cross-examine the witnesses

and was also not allowed to make defence statement and petitioner

never pleaded guilty, as such the order of punishment is bad and is

liable to be set aside.

6. Learned counsel for the respondents has contended that

petitioner pleaded guilty of his own in respect of the charge levelled

against him. Learned counsel further submits that there is no violation

of any rule or procedure while dealing with the case of the petitioner

and the punishment awarded commensurate with the gravity of the

offence committed by him. The stand now taken is an after thought.

7. The charge sheet dated 24th May, 2005 issued against the

petitioner is as under:-

"The accused No.143582224A Rank BHM Name Nirmal Singh Sunit: 13 Field Regiment is charged with:-

Army Act Sec 63 AN ACT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE

In that he, At Ferozepur on or before 01 Oct 2004, while performing the duties as BHM of 38 Field Battery of 13 Field Regiment improperly detailed No.14385661K NK Amrik Singh for guard duties at 2 ASD (17 FAD) despite the above named NCO having four red ink entries due to indiscipline contrary to instructions that undisciplined pers are not to be detailed for important guard duties."

Record of proceedings before the Commanding Officer under Rule

22 of the Army Rules, 1954 which is annexed with the counter affidavit

shows that charge against the petitioner was read over and explained to

him. The proceedings further show that prosecution witnesses namely

Captain A.S.Negi, Adjt, 13 FD Regt and Sub Mohinder Singh, Offg SM,

13 FD Regt were heard in the presence of petitioner who was given full

opportunity to cross-examine but petitioner had declined and further

declined to make any statement in defence and no defence witness is

produced and therefore the Commanding Officer on 28th May, 2005 had

passed the order "To be tried summarily". In the summary trial,

petitioner had pleaded guilty. Thereafter, punishment of `Severe

Reprimand' was awarded to him by the Commanding Officer on 28th

May, 2005.

The stand of the petitioner is that he was on leave on the day of

occurrence, as such false charge had been leveled against him.

Learned counsel for the petitioner has shown the leave record of the

respondents to show that petitioner was on leave from 22nd September,

2004 to 8th October, 2004. The same is not denied by learned counsel

appearing on behalf of the respondents nor the same is denied in the

counter affidavit on record of respondents. However the stand of the

respondents is that simply because petitioner was on leave does not

absolve him of his responsibility. The stand of respondents is that all

the sub units of 39 Field Battery of 13 Field Regiment were informed

well in advance for detailment as guard duty w.e.f 1st October, 2004

and names of persons to be detailed were to be forwarded well in time

much prior to 1st October, 2004. The allegations are not specifically

denied by petitioner in the rejoinder. Further petitioner has also not

stated as to who had sent the name in question in his absence.

Petitioner ought to have stated so. The petitioner is silent on this

aspect of the matter. Under the circumstances, the contention raised

has no force and is rejected.

Perusal of the record shows that plea of guilt was recorded on

28th May, 2005 whereas the stand of the petitioner that respondents

suo motu recorded the same and petitioner never pleaded guilty of his

own. The stand taken is not believable. The petitioner had never raised

any such objection in this regard in the earlier proceedings i.e in the

review petition filed before the Reviewing Authority as well as in the

earlier writ petition filed in this court being WP(C) 18023/2005 wherein

directions were issued to the respondents to dispose of petitioner's

review petition expeditiously. The said stand has been taken for the

first time in the present petition that too in the rejoinder after a lapse of

about five years. The plea taken is an afterthought and is not believe

able and hence rejected.

It has also come on record that petitioner was also punished on

24th March, 1995 for "AN OMMISSION PREJUDICIAL TO GOOD

ORDER AND MILITARY DISCIPLINE" and the punishment awarded was

reduced to lower grade of pay for six months on 24.3.1995.

A copy of the said order is annexed with the counter affidavit filed

by respondents.

In view of the above discussion, we find no reason to interfere

with the orders which are challenged in this petition in exercise of our

jurisdiction under Article 226 of the Constitution of India. In any event,

grant of relief under Article 226 is a discretionary relief. Considering

the facts and circumstances of the case, we do not wish to exercise the

discretion in favour of petitioner. Petition stands dismissed. There is

no order as to costs.

VEENA BIRBAL, J.

ANIL KUMAR, J.

FEBRUARY 18, 2011 ssb