Ex.Sowar Azad Singh vs Union Of India & Ors.
2012 Latest Caselaw 322 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.205/2012

%                       Date of Decision: 17.01.2012

Ex.Sowar Azad Singh                                     .... Petitioner

                    Through Mr.Pradeep Dahiya, Advocate.


                               Versus


Union of India & Ors.                               .... Respondents

                    Through Mr.Sachin   Datta,   CGSC     with
                            Mr.Ahbimanyu Kumar, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA


ANIL KUMAR, J.

*

1. The petitioner has challenged the judgment dated 23rd

February, 2011 passed by Armed Forces Tribunal, Principal Bench in

T.A No.33/2010 dismissing the petition of the petitioner and

declining to quash and set aside the proceedings of the Summary

Court Martial dated 27th August, 1993 directing the dismissal of the

petitioner and refusing to grant his reinstatement with consequential

benefits.

2. Brief facts to comprehend the controversies are that the

petitioner was enrolled in the Indian Army on 1st September, 1978

and he served with the Jat Regiment and was later on transferred to

the Armed Regiment in the year 1980. The petitioner had about 14

years of service before he was dismissed.

3. According to the petitioner he was granted annual leave for the

year 1993 with effect from 3rd May, 1993 to 1st July, 1993. He

contended that during his leave he fell sick and remained under

treatment at Faridabad. According to the averments of the petitioner

he had informed the duty clerk LD/SKT on 2nd July, 1993 at 1915

hours regarding his illness and had requested for an extension of

leave which was also recorded by the duty clerk in the message book.

The petitioner thereafter, reported for duty on 14th August, 1993. On

23rd August, 1993 the petitioner was informed that he would be tried

by the Summary Court Martial on 26th August, 1993 for an offence

under Section 39(B) of the Army Act.

4. The petitioner was served with the chargesheet and summary

of evidence. The petitioner was also informed that he has a right to

petition to the Central Government, Chief of Army Staff or any officer

superior in Command to the officer who held the Summary Court

Martial by letter dated 27th August, 1993.

5. Thereafter by letter dated 12th November, 1993 the wife of the

petitioner was informed that the petitioner had been tried by the

Summary Court Martial on 27th August, 1993 and that the

punishment of dismissal from service had been awarded to the

petitioner.

6. Pursuant to the order of dismissal the petitioner contended

that he had submitted a petition dated 7th January, 1994 to the Lt.

General, GOC-in-C Head Quarter, Northern Command, explaining

the reasons for his overstay, However, no decision had been taken on

his request. The petitioner had also made a prayer to review the

punishment and allow him to complete the pensionable service.

7. According to the petitioner he had received a letter dated 17th

May, 1994 asking him to sign the consent certificate that he would

not claim pay and allowances in respect of or count service for any

purpose during the period under dismissal. The petitioner averred

that as the said letter was silent about the purpose, he did not sign

the letter. The petitioner, therefore, wrote to the Commandant

Incharge, Summary Court Martial on 24th May, 1994 to know in

detail the purpose for which the consent certificate which was asked

to be signed by him was required for. The petitioner received a letter

in response dated 15th June, 1994 explaining the implications of the

consent certificate, however, it was not clarified as to whether even

after seeking discharge the petitioner would get pension or not.

Therefore, the consent letter was not signed and submitted by the

petitioner.

8 The petitioner contended that later on the petitioner had

signed the consent certificate and informed the Commandant

Incharge by letter dated 25th August, 1994 stating that he had done

so on the assurance of the alleged courier Dfr Kuldeep Singh stating

that the petitioner would get pension admissible after 15 years of

service as the petitioner had already completed 14½ years of service

and an extension of ½ year was within the jurisdiction of the Corps

Commander. The petitioner also contended that he had written that

in case he does not get the pension, the consent certificate should be

treated as cancelled.

9. The petitioner made various representations and reminders

were also sent regarding the said matter, however no response was

received from the respondents. Since the relief claimed by the

petitioner was not granted, feeling aggrieved by the Summary Court

Martial proceedings, he filed a writ petition being W.P(C)

No.3873/1998 dated 27th May, 1998 which was transferred to Armed

Forces Tribunal and was registered as T.A No.33/2010 which was

thereafter dismissed by order dated 23rd February, 2011 which is

impugned by the petitioner in the present petition. The Armed Forces

Tribunal while dismissing the petition noticed the plea of the

petitioner that he had been requesting time and again to post him

near his hometown as he had to take care of his wife who was not

having a child at the relevant time and that when he was blessed

with a child, he had to take care of that child and for emotional

reasons he had overstayed on leave. The Armed Forces Tribunal also

considered the plea of the petitioner that he had sought retirement

and availed the pensionary benefits but he had instead been

dismissed from service and that the punishment of dismissal does

not commensurate to the violation for which he was held guilty, i.e.

overstaying the leave.

10. The petition was contested by the respondents disclosing that

the petitioner is a habitual defaulter and that he overstayed on a

number of occasions. It was disclosed that in 1990 he had

overstayed for 46 days; in the year 1991 he had overstayed for 102

days and that in the year 1993 he had overstayed for 44 days. For

these incidents of overstaying he was held guilty and punished for

the offence under Section 39(B) of the Army Act. The Armed Forces

Tribunal also noticed that the appellant himself pleaded guilty.

Sufficient opportunity under Army Rule 115(2) was afforded to him,

inspite of which no justifiable reason was given by him for

overstaying and being absent without permission in the year 1993.

The statements of Bishan Dass as PW-1, SDM Sahni Ram as PW-2

and the fact that the petitioner had pleaded guilty were also taken

into consideration. On account of the petitioner being a habitual

defaulter the Tribunal had held that the punishment of dismissal

from service cannot be held to be disproportionate to the offence, in

the facts and circumstances.

11. The Tribunal repelled the plea of overstaying on account of the

allegation that he had to take care of his newly born child relying on

the principle enunciated in Teri Oat Estates (P) Ltd v.

U.T.Chandigarh, (2004) 2 SCC 130 wherein it was held that

sympathy or sentiment by itself cannot be a ground for passing an

order in relation whereto the appellants miserably failed to establish

a legal right. Therefore the Tribunal held that emotions have no

relevance and significance to justify the absence of the petitioner.

The plea of the petitioner that since his wife was engaged in a job

and, therefore, he could not ask for family accommodations at the

place where he was posted and that in these circumstances there

was compulsion to stay with his wife, was also held to be irrelevant

and not sufficient for setting aside the decision of Summary Court

Martial. The fact that the petitioner was short of 2 years and 7

months to become entitled for pensionary benefits was also

construed against him since on looking at his past conduct it was

revealed that he is a habitual offender, and therefore the Tribunal

had held that there was no justifiable ground to mitigate the

punishment.

12. The orders of the Summary Court Martial and the Armed

Forces Tribunal have been challenged by the petitioner on the

ground that he had completed 14 years, 11 months and 25 days of

service at the time of dismissal and that the petitioner was just 5

days short of 15 years service to make him eligible to get the

pension; that the respondent No.2, Commander should have

sympathetically considered and conceded the request of petitioner for

home posting; and that the respondent No.2 ought to have described

in detail the purpose of the consent certificate and should have also

clearly mentioned as to whether after signing the same the petitioner

would get pension or not. According to the petitioner had this been

done the dismissal of the petitioner could have been converted into

discharge as had been offered by respondent No.2. The petitioner

also contended that since the dismissal was sought to be converted

into discharge it means that the dismissal was not justified and, that

therefore, the punishment of dismissal imposed on the petitioner is

liable to be quashed.

13. The learned counsel for the respondents who appears on

advance notice has contended that the judicial review of the decision

of an authority or a lower Tribunal 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 charged officer had

received a fair treatment and not to conclude that the conclusion

which the authority had reached is necessarily correct in the eyes of

the Court. Relying on B.C.Chaturvedi v. Union of India & Ors., (1995)

6 SCC 749, it was further contended that when an inquiry is

conducted on the charges of misconduct, the Tribunal is to

determine whether the inquiry was held by a competent officer and

whether the rules of natural justice had been complied with. What

also has to be seen is whether the findings or conclusions are based

on some evidence and also that the authority entrusted with the

power to hold the inquiry has jurisdiction, power and authority to

reach a finding of fact or conclusion. The finding must be based on

some evidence as neither the technical rules of Evidence Act nor that

of proof of fact or evidence as defined therein, apply to disciplinary

proceedings. The Court in its power of judicial review does not act as

an appellate authority to re-appreciate the evidence nor does it arrive

at its own independent findings on the evidence. However, the Court

may interfere where the authority held that the proceedings against

the delinquent officer in a manner is inconsistent with the rules of

natural justice or in violation of the statutory rules prescribing the

mode of inquiry or where the conclusions or findings reached by the

disciplinary authority is based on no evidence.

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

detail. The plea of the learned counsel for the petitioner that the

petitioner was short of 5 days for the 15 years of service is not borne

out from the record. The Tribunal had held that the petitioner was

short of 2 years and 7 months of his service to become entitled for

pensionary benefits. This fact in itself will not be sufficient to set

aside the order of dismissal passed by the respondents as it is

evident from the record that the petitioner is a habitual offender and

that he had overstayed on leave on many previous occasions and

therefore, he has not been punished with dismissal on account of a

solitary incident of overstaying on leave. In a disciplined force, the

petitioner cannot be allowed to contend that he had sought transfer

to a place near the place of his residence or that since his wife was

working, therefore, he could not take an accommodation at the place

of his posting and that he had to look after his newly born child. The

plea raised by the petitioner regarding his joining the duty on 14th

August, 1993, overstaying his leave granted from 3rd May, 1993 to 1st

July, 1993, is that he had fallen sick. The learned counsel for the

petitioner is unable to show any document on behalf of the petitioner

justifying the plea raised by the petitioner about his sickness which

had allegedly made him so immobile that he could not go and join

the duty after the expiry of the leave granted to him. There is no

description of his alleged sickness given in any of the representations

or in the petitions filed before the Armed Forces Tribunal and in the

present writ petition. No evidence regarding the alleged sickness was

even led by the petitioner before the Summary Court Martial as well.

Even in the petition dated 7th January, 1994 against the Summary

Court Martial held on 27th August, 1993, it has not been disclosed as

to what was the illness of the petitioner which prevented him from

joining the duty. The petitioner has not disclosed as to who had

advised him complete rest or where the petitioner had got himself

treated. The learned counsel for the petitioner has also not been able

to satisfactorily explain as to how the alleged intimation to duty clerk

LD/SKT on 2nd July, 1993 at 1915 hours was sufficient to allow the

petitioner to overstay after the expiry of his leave. From the pleas

raised by the petitioner it is apparent that he has taken contradictory

stands which have also been noticed by the Tribunal while

dismissing his petition being T.A No.33/2010 and in the

circumstances, the petitioner is unable to show any illegality,

irregularity, perversity or any jurisdictional error in the order of the

Tribunal dated 23rd February, 2011.

15. The plea of the learned counsel for the petitioner that the

punishment of dismissal had been converted to one of discharge

under Section 164(2) by the concerned authorities and, therefore, the

order of dismissal could not be passed also cannot be accepted and

is not borne out from the record produced before this Court. The

petitioner has relied on the letter dated 15th June, 1994. By the said

communication the petitioner was only advised that the Commander

of the 16 Corps is the competent authority under the Army Act, 1950

to consider his request to convert his order of dismissal to that of

discharge under Section 164 (2) of the Army Act, 1950. The

petitioner was also advised that it was obligatory on the part of the

petitioner to submit a consent certificate before the Corp.

Commander to consider his request to convert his punishment of

dismissal to that of discharge in accordance with law. The petitioner

was even sent a consent certificate through the Commander,

however, the same was not signed by the petitioner on the ground

that he was not explained whether the petitioner would be entitled to

the pension or not after signing the consent certificate. Later on it

appears that the petitioner signed the consent certificate, however,

with a reservation that in case the petitioner was not entitled to

pension the certificate should be treated as cancelled. The learned

counsel for the petitioner is unable to show any rule under which

such a conditional consent certificate could be submitted by the

petitioner, seeking the conversion of the order of punishment from

dismissal to discharge.

16. In the totality of facts and circumstances, the petitioner has

failed to make out such illegality, irregularity, perversity or

jurisdictional error in the order of the Tribunal dated 23rd February,

2011 in T.A No.33/2010 titled as 'Ex.Sower Azad Singh v. Union of

India' which could entail any interference by this Court in exercise of

its jurisdiction under Article 226 of the Constitution of India. The

writ petition is without any merit and is, therefore, dismissed.

ANIL KUMAR, J.

J.R.MIDHA, J.

January 17, 2012 'k'