Naik Balakrishan Sharma vs Union Of India & Ors.
2011 Latest Caselaw 5514 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            WP(C) No.8093/2011


%                       Date of Decision: 16.11.2011


Naik Balakrishan Sharma                                     .... Petitioner


                     Through Ms.Archana Ramesh, Advocate


                                 Versus


Union of India & Ors.                                    .... Respondents


                     Through Mr.Ruchir Mishra, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 5th May, 2011

passed by the Armed Forces Tribunal, Principal Bench in T.A.

No.275/2010, titled as „Ex.Naik Balakrishan Sharma v. Union of India

& Ors.‟, dismissing the original application of the petitioner against the

Summary Court Martial (SCM) proceedings, holding the petitioner guilty

of having committed the offences under the Army Act Sections 40(c) and

39(a) and sentencing the petitioner i) to be reduced to rank; ii) to

undergo rigorous imprisonment for three months; and iii) to be

dismissed from service. The sentence was subsequently modified by the

Govt. and the punishment of dismissal from service was remitted to

discharge. The petitioner was also granted all the benefits flowing from

the date of discharge.

2. Brief facts to comprehend the controversies are that the petitioner

had enrolled as a Sepoy in the Corps of Electrical and Mechanical

Engineering, and he was later on promoted to the rank of Naik.

3. According to the petitioner, he was sent on Temporary duty to the

Central Ordinance Depot Agra on 5th March, 1999. While being on

Temporary duty at the said Ordinance Depot, he received a letter on

15th March, 1999 disclosing to him that the condition of the eyes of his

mother had worsened, for which reason surgical operation was essential

and required to be performed on the eyes of his mother as expeditiously

as possible.

4. The petitioner contended that due to his domestic problem he had

applied for 10 days casual leave w.e.f. 5th April, 1999 so that he could

look after his mother and get her operated and could also complete

some of his pending official tasks. The petitioner asserted that his

superior officer, Subedar Shiv Ram, made an endorsement on the spare

chit for leave, after verifying the veracity of the Inland Letter and

medical documents regarding the impending eye operation of his

mother.

5. The grievance of the petitioner is that despite the

recommendation of leave by his superior officer, Subedar Shiv Ram, he

was detailed to go for another Temporary duty to COD Cheoki for

backloading a condemned Class V Generator set. According to the

petitioner, he tried to reason out that since he had been granted casual

leave, therefore, temporary duty could be given to someone else on

rotation or he be allowed to do the said temporary duty after the 10

days of leave sought by him. In the opinion of the petitioner, it was

logical as back loading a condemned Class V Generator was not that

important in comparison to the petitioner attending to his mother for

her eye operation, which required urgent attention, while in the latter

case there were no time constraints.

6. The plea of the petitioner is that he had an argument on this

aspect with JCO Subedar SC Das outside the office at that time and a

young officer Captain Biju Jacob intervened and construed his

statements and argument as "insubordinate language to a superior

officer". According to the petitioner, he did not have any altercation or

discussion with Captain Biju Jacob.

7. The petitioner categorically averred that he had asked the JCO

Subedar SC Das as to who had asked him to deploy the petitioner and

whether he was specifically asked to deploy the petitioner by name or if

anyone else could be detailed.

8. The petitioner further contended that the officer, Captain Biju

Jacob, made it a prestige/ego issue and construed it as insubordination

and for this gave him three months rigorous imprisonment coupled with

reduction to rank and dismissal from service. The petitioner sought

interview of Commander 340 (Independent) Infantry Brigade to put

across and clarify his simple grievance. However, the Commanding

Officer did not forward his application to the Commander 340

(Independent) Infantry Brigade on one pretext or other. On 6th May,

1999 as the petitioner had insisted for an interview with the

Commander, the Commanding Officer became angry and he was placed

under arrest in the Unit Quarter Guard, which is a Unit Prison, vide

letter dated 21201/CM. The petitioner contended that on such a simple

matter close arrest was most unwarranted and uncalled for.

9. On 7th May, 1999, the petitioner submitted a statutory petition to

the Brigade Commander which was, however, returned by letter dated

13th May, 1999. On 22nd May, 1999 the petitioner was further charged

with absenting himself without leave from the Unit Quarter Guard

allegedly from 15th to 19th May, 1999. Therefore the petitioner was tried

by the Summary Court Martial on 30th May, 1999 and in light of the

facts and circumstances and the evidence on record, it was concluded

on the guilt of the petitioner on the charges framed against him. Thus,

the petitioner was convicted and awarded the punishment of reduction

in rank and rigorous imprisonment for three months and dismissal

from service.

10. On 18th June, 1999, the Reviewing Authority remitted the

unexpired portion of rigorous imprisonment, thus the three months of

rigorous imprisonment was converted to 18 days of rigorous

imprisonment. Aggrieved by order of the Summary Court Martial, the

petitioner filed a writ petition bearing No.2598/2001 before the Delhi

High Court. During the pendency of the writ petition, the petitioner

also filed a statutory petition dated 22nd December, 2003. On the

statutory petition, the Chief of Army Staff remitted the sentence of

dismissal to discharge effective from the date of the dismissal and

entitling the petitioner to all the consequential benefits from the date of

dismissal which was converted to discharge.

11. In the meantime, the writ petition filed by the petitioner was

transferred to the Armed Forces Tribunal. The Tribunal considered the

pleas and contentions of the petitioner and relied on the statement of

PW1, Captain Biju Jacob, who had categorically narrated the entire

sequence of incident. He had stated that on 25th March, 1999 he had

received a tele-message from Cfn/MS R.P. Singh to detail somebody to

escort the generator set from Banar to COD Chheoki and that on 26th

March, 1999 at around 1400 hours, PW1 had been informed by SC Das

that the petitioner had been detailed for the purpose. The petitioner,

however, refused to comply with the orders and retorted in reply that

"mai nahi jaoonga", which clearly amounted to insubordination falling

within the ambit of Sec. 40(c) of the Army Act. The Tribunal also

observed that the testimony of PW1 was fully corroborated by PW2, and

therefore, the charge of insubordination was established. With regard to

the charge that the petitioner absented himself without leave from the

unit lines from 15th to 19th May, 1999, the testimony of PW 3 was relied

on, who stated that even though he searched, the petitioner could not

be located. This was supported by the testimony of PW4 as well. In spite

of opportunity given to the petitioner, he did not cross examine any of

the said witnesses. The Armed Forces Tribunal, in light of the facts and

circumstances and on perusing the evidence on record, dismissed the

petitioner‟s petition.

12. Against the order of the Tribunal, the petitioner has approached

this court under its writ jurisdiction. The petitioner has challenged the

punishment imposed upon him contending, inter-alia, on the grounds

that he had performed the last temporary duty on 8th March, 1999 and

was even granted casual leave, however, inspite of this he was forced to

do the temporary duty again on 26th March, 1999, entailing the

petitioner to seek an interview with the commanding officer, which was

reasonable in the facts and circumstances to air his grievances. The

request of the petitioner was, however, declined. The petitioner

thereafter requested for an interview with the next superior authority,

Commander 340 (Independent) infantry Brigade which was also

refused. The statutory complaint made by the petitioner was also

returned which according to the petitioner was illegal and unfair on the

face of it. The plea of the petitioner is that there was only heated

discussion between him and JCO Subedar SC Das regarding

cancellation of his name from the temporary duty or postponement of

the temporary duty. The petitioner also asserted that the temporary

duty was fictitious as the condemned generator class V had already

been loaded on 19th March, 1999 and had been dispatched to COD

Cheoki on 22nd March, 1999. According to him, back loading of the

condemned generator did not have any specific time factor in

comparison to his request to get his mother‟s eye operated, for which he

had sought the leave which was even endorsed by the superior officers.

13. Regarding his absence without leave, the petitioner contended

that he was under arrest in the Quarter Guard from 6th May, 1999 by

letter bearing no. 21201/CM. The petitioner relied on the said letter to

contend that he has a strong alibi to prove that at the time of his

alleged absence without leave, he was under arrest and that he couldn‟t

possibly be punished for the same. The petitioner has also relied on the

medical documents to prove the factual existence of the eye problem of

his mother, Smt. Ramvati Devi, for which he had sought 10 days leave.

14. This Court has heard the learned counsel for the petitioner in

detail and has also perused the entire record. With regard to the first

charge framed against the petitioner of using insubordinate language to

his superior officer, the Tribunal has placed reliance on the testimonies

of PW1 and PW2 and held that it has been proved. The petitioner

himself has substantiated the statements of the said witnesses. The

petitioner has not denied the fact that he had an argument with SC Das

with regard to the postponement of the temporary duty which was

assigned to him, or for sending another officer in his place. According to

him, treatment of his mother‟s eye was more important than off loading

the condemned generator and the temporary work which was assigned

to him could be postponed. During the Summary Court Martial

proceedings, the petitioner did not cross examine the said witnesses

inspite of the opportunity given to him, which was specifically noted by

the Commanding Officer. In the facts and circumstances ,the inferences

drawn are probable and cannot be termed to be perverse or based on no

evidence. The petitioner does not deny the fact that he had an argument

with his superior officer, but has only justified the same in light of the

medical ailment of his mother, and has therefore attempted to show it

in the light of a disagreement rather than insubordination. The

petitioner has also asserted that the temporary duty was fictitious as

the condemned generator class V had already been loaded on 19th

March, 1999 and had been dispatched to COD Cheoki on 22nd March,

1999, however, he has been unable to produce any document in

support of this claim and therefore the same has to be rejected. In the

circumstances, the inferences drawn by the respondents cannot be held

to be based on no evidence or perverse in any manner. This Court in

exercise of its powers under Article 226 of the Constitution of India has

no jurisdiction to go into the correctness or the truth of the charges by

reappreciating the evidence led before the respondents. It also cannot

substitute the findings of the Disciplinary Authority with its own

findings. It cannot sit in appeal over the findings of the Disciplinary

Authority and assume the role of the Appellate Authority. It cannot

interfere with the findings of fact arrived at in the disciplinary

proceedings except in a case of mala fides or perversity i.e. where there

is no evidence to support a finding or where a finding is such that no

person acting reasonably and with objectivity could have arrived at

such a finding or where reasonable opportunity has not been given to

the delinquent to defend himself or it is a case where there has been

non application of mind on the part of the Inquiry Authority or if the

charges are vague or if the punishment imposed is shocking to the

conscience of the Court.

15. With regard to the second charge of absenting himself without

leave, the petitioner has relied on the letter bearing No. 21201/CM

which stipulates that the petitioner was placed under arrest with effect

from 6th May, 1999 and therefore, according to the petitioner, it affords

a strong alibi regarding the time he was allegedly absent without leave.

On the other hand, the Tribunal has relied on the testimony of PW3 and

PW4 while concluding on the guilt of the petitioner. On perusing the

Summary Court Martial proceedings, it transpires that the petitioner

had not only declined from cross examining the said witnesses but had

also stated nothing in his defense with regard to the second charge, nor

had he submitted the letter bearing no. 21201/CM nor had he

produced any witnesses. Thus, reliance on the said letter in defense to

contend that he was quarter guard is an after thought. Regardless of it,

this does not account for the time specified in the second charge for

being absent without leave i.e. 15th to 19th May, 1999. The said letter

only states that the petitioner was put under quarter guard with effect

from 6th May, 1999. Thus, it has not been established that the

petitioner was not released till 15th or thereafter. The Tribunal has also

rejected the plea of the petitioner that his absence is on account of close

custody, in light of no evidence supporting the same. Therefore, this

Court does not find any perversity, or illegality in the order of the

Tribunal.

16. No other point has been urged on behalf of the petitioner. In the

circumstances, the petitioner is not entitled for any interference by this

Court in exercise of its jurisdiction under Article 226 of the Constitution

of India.

The writ petition in the facts and circumstances is without any

merit and it is therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

November 16, 2011.

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