Sep Rohtash Singh vs Union Of India & Ors.
2012 Latest Caselaw 2677 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Decision: 24.04.2012

+                        W.P.(C) No.2313/2012

Sep Rohtash Singh                               ...       Petitioner

                                 Versus

Union of India & Ors.                            ...      Respondents


Advocates who appeared in this case:

For the Petitioner : Major K.Ramesh Advocate
For Respondents : Mr.Ankur Chhibber Advocate

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


ANIL KUMAR, J.

*

1. The petitioner has sought the quashing of the verdict of `guilty‟

passed by the Summary Court Martial and the sentence of deduction in

the rank by order dated 13th February, 2010 and the order dated 31st

January, 2011 rejecting the petition dated 15th May, 2010 submitted by

the petitioner against the Summary Court Martial‟s findings to the Chief

of Army Staff. The petitioner has also sought the quashing of retirement

order dated 2nd August, 2011.

2. Brief facts to comprehend the disputes are that the petitioner was

enrolled as a Sepoy on 23rd August, 1995 and was promoted to the rank

of Naik. The petitioner was performing the duties of a Driver of a school

bus.

3. On 20th December, 2006, after dropping the children from school

by bus, when the petitioner was returning with his vehicle, the school

bus met with an accident. A young boy Master Simarjeet Singh son of

Sh.Gurwinder Singh died on the road in Bhatinda. The said boy who

died in the accident, was going on the bicycle on the same road and in

the same direction in which the bus was driven by the petitioner.

4. An FIR was registered against the petitioner and the challans

were filed. However, the case of the petitioner had been taken over by

the Army from the civil authorities for disposal under the provisions of

the Army Act as the Act mandates effectual proceedings against the

individual.

5. The Court of Enquiry was also held before the case had been

taken over by the Army, however, in the Court of Enquiry the

culpability of the petitioner could not be pinpointed according to the

petitioner.

6. In the meantime after the accident, the petitioner had been also

promoted to the next rank of Hawaldar in Oct, 2008. Three years after

the accident, the Army had taken over the case of the petitioner from

the civil authorities, a Summary of Evidence was ordered and

consequent thereto chargesheet was framed on 13th November, 2009

under Section 69 of the Army Act for committing a civil offence of

causing death by rash or negligent act not amounting to culpable

homicide.

7. A Summary Court Martial was convened on 1st December, 2009

and the petitioner had pleaded "not guilty". Before the Summary Court

Martial, a total of 9 witnesses were examined and the Summary Court

Martial was concluded on 13th February, 2010.

8. On perusal of the evidence on record, the Summary Court Martial

returned the verdict of "guilty" and sentenced the petitioner "to be

reduced to ranks". The petitioner was consequently reduced from the

rank of Hawaldar to the rank of Sepoy.

9. Aggrieved by the order of the Summary Court Martial dated 13th

February, 2010, the petitioner submitted a post confirmation petition in

terms of Section 164(2) of the Army Act on 15th May, 2010 to the Chief

of Army Staff. The petition to the Chief of the Army Staff was, however,

rejected on 25th January, 2011.

10. Consequent to the reduction in rank and the petitioner becoming

a Sepoy, his service as Hawaldar with 25 years of service had been

reduced to 17 years and the petitioner was ordered to be proceeded on

pension as a Sepoy with effect from 31st August, 2012.

11. The petitioner has challenged the order of the Summary Court

Martial, rejection of his petition by the Chief of the Army Staff and the

order dated 2nd August, 2011. The petitioner has filed the present

petition, inter-alia, on the ground that the petitioner was not in the

accident zone at Bhatinda when the accident had taken place. Relying

on the post mortem report, it has been contended on behalf of the

petitioner that though the deceased did not die due to any heart attack

or fear of ghost or a natural cause, but on account of internal subdural

haemorrhage, however, the report did not disclose that the impact on

the boy‟s head was on account of hitting the ground or the Army

vehicle.

12. Relying on the testimonies of the witnesses, it has been

contended on behalf of the petitioner that the road, on which the victim

was going on bicycle, was under construction with huge stones and

perhaps seeing a huge Army vehicle the boy could have lost his balance

and fallen to his right and hit his head on the left side of the truck or

may be directly on the road and due to the hard direct hit and impact

on account of the fall there could have been an internal haemorrhage.

On behalf of the petitioner, it is contended that now a days in many

instances people going on the scooter slip and fall down resulting in a

straight head on collusion/impact hit on the tar road resulting in their

death or coma due to head injury.

13 The petitioner further asserted that the statements of all the 9

witnesses recorded by the Summary Court Martial were not consistent

with each other, and that there is no consistency regarding the speed of

the offending vehicle to the extent that one witness deposed that the

victim was not on the bicycle at all. The petitioner has further

contended that perusal of the 12-15 pages of the Summary Court

Martial proceedings does not lead to any such inference as has been

drawn by the Summary Court Martial. According to the petitioner, the

testimonies of the witnesses could not be relied on as they were

relatives and had vested interests. The petitioner has contended that

since there were no blood stains on the vehicle, therefore, it could not

be inferred that the victim had lost his balance and had fallen on the

bus or was hit by the bus and thus the probability of the victim falling

on the road and his head hitting the road cannot be ruled out. It is

contended that had the victim fallen on account of the impact from the

Army lorry driven by the petitioner, the cycle of the victim would have

fallen on his left whereas the injuries suffered by the victim were on the

right side of the temporal region as also were the injuries on the right

knee and abrasion in the right thighs. In the circumstances, it is

contended that thus the Summary Court Martial has erred in holding

that the charge against the petitioner was made out.

14. Mr. Ankur Chhibber, learned counsel for the respondents who

has appeared on advance notice has refuted the pleas and contentions

raised on behalf of the petitioner. He has contended that this Court in

exercise of its power under Article 226 of the Constitution of India will

not sit as an appellate Court and will not reappreciate the evidence and

draw its inferences and substitute the inferences drawn by the

Summary Court Martial. The learned counsel contended that this Court

should not interfere with the findings of the fact arrived at by the

Summary Court Martial. He also emphasised that on behalf of the

petitioner no malafides or perversities have even been alleged against

the concerned authorities. According to him, the findings of the

Summary Court Martial are based on evidence and it cannot be held

that the findings are such that anyone acting reasonably or with

objectivity would not have arrived at such findings. The petitioner was

given reasonable opportunity to defend himself and it cannot be held, in

the facts and circumstances, that there is non application of mind.

15. Mr.Chhibber, learned counsel contended that even from the

perusal of the testimonies of the witnesses recorded before the

Summary Court Martial it is revealed that there is sufficient evidence to

inculpate the petitioner. He referred to the statement of Mr.Sukhdev

Kumar, the 4th witness who categorically deposed that he has a

workshop outside the shop of Vishkarma Furniture, and on the fateful

day he saw a small child riding a bicycle moving towards Bibiwali

Chowk. He had also seen an Army school bus driven by the petitioner

came from behind and that the front left portion of the vehicle near the

tyre had hit the bicycle handle and the child had fallen. The said

witness was cross examined at length by the petitioner. The testimony

of another witness Sh.Maninder Singh, 6th witness, has also been

referred to who had deposed that they were on the scooter when they

saw that an Army school bus had hit the cycle of the child who had

fallen down on account of the impact and he was taken to "Nagpal

Hospital" by a "Sahara Club" Ambulance. The said witness categorically

denied the suggestion that the accident could have been caused by

some other scooter or motorcycle. Referring to the testimonies of other

witnesses, Mr.Chibber, learned counsel for the respondents has

contended that perusal of the testimonies clearly reveal that there is

sufficient evidence and in any case this Court is not to exercise its

appellate jurisdiction under Article 226 of the Indian Constitution.

16. This Court has heard the learned counsel for the parties and has

also perused the record annexed with the writ petition. It cannot be

disputed that the grounds on which decision of the Summary Court

Martial can be interfered by judicial review are, "illegality"; "irrationality"

and "procedural impropriety". The Court will not interfere in such

matters unless the decision is tainted by any vulnerability like illegality,

irrationality and procedural impropriety. Whether action falls within

any of the categories is to be established and mere assertion in that

regard may not be sufficient. To be "irrational" it has to be held that on

material, it is a decision "so outrageous" as to be in total defiance of

logic or moral standards. If the power is exercised on the basis of facts

which do not exist or reaching conclusions which are patently

erroneous, such exercise of power shall be vitiated. Exercise of power

will be set aside if there is manifest error in the exercise of such power

or the exercise of power is manifestly arbitrary. To arrive at a decision

on "reasonableness" the Court has to find out if the respondents have

left out a relevant factors or taken into account irrelevant factors. It was

held in (2006) 5 SCC 88, M.V.Bijlani Vs Union of India & Ors. that the

Judicial review is of decision making process and not of re-appreciation

of evidence. The Supreme Court in para 25 at page 96 had held as

under:

„25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal

trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.‟

17. In Judicial review of the decision of the Summary Court Martial

this Court will not take over the functions of the Summary Court

Martial. The writ petition is not an appeal against the findings of the

Summary Court Martial, nor this court is exercising or assuming the

role of the Appellate Authority. It cannot interfere with the findings of

the fact arrived at by the Summary Court Martial except in the case of

mala-fides or perversity i.e where there is no evidence to support a

finding, or where the finding is such that no one acting reasonably or

with objectivity could have arrived at, or where a reasonable

opportunity has not been given to the accused to defend himself, or it is

a case where there has been non application of mind on the part of the

Summary Court Martial, or if the charges are vague, or if the

punishment imposed is shocking to the conscience of the Court.

Reliance for the scope of Judicial Review can be placed on State of U.P

& Ors. Vs Raj Kishore Yadav & anr., (2006) 5 SCC 673; V.Ramana Vs

A.P. SRTC & Ors., (2005) 7 SCC 338; R.S.Saini Vs State of Punjab &

Ors., JT 1999 (6) SC 507; Kuldeep Singh Vs The Commissioner of

Police, JT 1998 (8) SC 603; B.C.Chaturvedi Vs Union of India & Ors,

AIR 1996 SC 484; Transport Commissioner, Madras-5 Vs A.Radha

Krishna Moorthy, (1995) 1 SCC 332; Government of Tamil Nadu &

Anr.Vs A. Rajapandia, AIR 1995 SC 561; Union of India & Ors. Vs

Upendra Singh, (1994) 3 SCC 357

18. In (1995) 6 SCC 749, B.C.Chaturvedi v. Union of India & Ors.

the Supreme Court at page 759 has held as under:-

„12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the

finding, and mould the relief so as to make it appropriate to the facts of each case.‟

19. The learned counsel for the petitioner repeatedly only pointed out

the alleged discrepancies and the fact that had there been an impact

between the cycle driven by the deceased and the bus driven by the

petitioner, the deceased child would have fallen to the left and not to

the right, since the injuries caused to the child were on the right side.

As already held this Court is not to reappreciate the evidence and has to

arrive at a finding different from that of the Summary Court Martial

unless the findings of the Summary Court Martial are based on no

evidence or there is illegality, irregularity or perversity. Perusal of the

testimonies of the witnesses rather reveals that the prosecution witness

Dr.Gurjeet Singh of Nagpal Hospital, Bhatinda, 9th witness, was not

even cross examined on behalf of the petitioner. Since the petitioner

had declined to cross examine the said witness it was categorically

recorded that the Army Rule 141(2),(3) & (4) had been compiled with.

20. While considering the petition dated 15th May, 2010 submitted by

the petitioner against the sentence passed by the Summary Court

Martial, it was categorically noticed that the case of the petitioner had

been taken over by the Army from the civil authorities for disposal

under the provisions of the Army Act which mandates effectual

proceedings against the individual and the Court of Enquiry does not

comprise a part of thereof. The testimony of witness No.7, who was the

co driver of the vehicle driven by the petitioner, was also carefully

examined and on considering the evidence it was inferred and held that

the Army Rule 22 had been properly complied with. The petitioner had

been awarded the sentence "to be reduced to ranks" and contradictions

and discrepancies were noted, however, they were held to be minor

which are commonly known to be prevalent in human affairs. The

respondents, in the facts and circumstances, had rejected the alleged

inconsistencies and discrepancies relied on and referred to on behalf of

the petitioner in the deposition of the prosecution witnesses. The

respondents had held that the pre trial and the SCM proceedings are

legal and in order and, therefore, the sentence awarded was legal and

just.

21. The learned counsel for the petitioner, Major K.Ramesh has not

been able to point out any such procedural illegalities or irregularities

which will entail any interference by this Court except for reiterating

that the evidence led before the Summary Court Martial was sufficient

to inculpate the guilt of the petitioner. For the foregoing reasons,

therefore, in the facts and circumstances there are no grounds for this

Court to interfere with the punishment awarded to the petitioner

pursuant to the Summary Court Martial, in exercise of its jurisdiction

under Article 226 of the Constitution of India. The writ petition is

without any merit and it is, therefore, dismissed.

CM No.4948/2012

Since the writ petition of the petitioner has been dismissed, the

application seeking stay of order of retirement of the petitioner from 31st

August, 2012 by order dated 2nd August, 2011 is also dismissed.

ANIL KUMAR, J.

APRIL 24 , 2012                      SUDERSHAN KUMAR MISRA, J.
„k‟