Sepoy Balwan Choudhary vs Union Of India & Ors.
2015 Latest Caselaw 6353 Del

$~9
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          Decided on: 27.08.2015
+      W.P. (C) 7509/2014

       SEPOY BALWAN CHOUDHARY                        ..... Petitioner
                   Through: Major K. Ramesh (Retd.), Advocate
                   with Ms. Archana Ramesh, Advocate.

                               versus

       UNION OF INDIA & ORS.                        ..... Respondents

Through: Mr. Rishi Kapoor, proxy for Mr. Arun Bhardwaj, Advocate for UOI.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MS. JUSTICE DEEPA SHARMA (OPEN COURT) %

1. The petitioner was working as Naik/Auto Elect (B Veh) with the

respondents and was posted at 611 EME Batallion, C/o 56 APO. He was

issued a charge-sheet under Section 40(a) of the Army Act. Following

charge was framed against him:-

"Using Criminal Force to his superior officer In that he, at Ahmedabad Cantonment on 16 December 2013, used criminal force to JC-762146H Naib Subedar/Master Technician (Communication) Ravindra Singh Dogra, Battalion Junior Commissioned Officer Adjutant, to wit, struck with his first on the face of said Junior Commissioned Officer.

W.P.(C) No.7509/2014 Page 1

2. In this case, a Court of Enquiry was conducted to investigate into the

matter relating to petitioner hitting Naib Subedar R.S. Dogra with fists.

Besides Naib Subedar R.S. Dogra, Hav PM Bhai, Hav Shivraj Singh and

Naik Baijnath and Naik M.K. Mishra were examined. Thereafter, Summary

of Evidence was recorded and based on that, charge-sheet of the offence of

using criminal force on superior was issued. Summary Court Martial took

place in the Unit. The petitioner was found guilty of offence and sentenced

to 70 days RI in military custody and reduction to rank (from Naik to

Sepoy). Petitioner had fully participated in the proceedings and had duly

cross-examined the witnesses and also examined defence witnesses. He has

also already undergone the sentence of imprisonment. His only challenge is

to disproportionality of penalty.

3. It is further contended that it was Naib Subedar R.S. Dogra who had

acted arrogantly and abused him in family quarters during fall-in exercise. It

is submitted that all the witnesses examined during Court of Inquiry,

recording of Summary of Evidence and Summary Court Martial had

supported him on the fact that it was Naib Subedar R.S. Dogra who insulted

him in the family quarters. Feeling insulted, he retaliated. It is also submitted

that these facts were not considered by the authority while imposing penalty

W.P.(C) No.7509/2014 Page 2 and that the penalty of dismissal from service along with Rigorous

Imprisonment of 70 days in military custody is unduly harsh.

4. The proportionality of penalty qua proved fault is open to judicial

review if in the given set of facts, it is not commensurate with the

misconduct. The Supreme Court in the case of Chairman-Cum-Managing

Director, Coal India Limited and Another vs. Mukul Kumar Choudhuri

and Others (2009) 15 SCC 620, while dealing with the question of quantum,

has observed as under:-

"20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment."

5. It, therefore, is obvious that the circumstances which led to

commission of misconduct, the service record of delinquent, and all the

other relevant matters are needed to be taken into account by the authorities

while imposing the penalty.

6. From the testimonies of witnesses (recorded in Court of Inquiry,

Summary of Evidence, and Summary Court Martial), the facts that emerge

are that during fall-in exercise, Naib Subedar R.S. Dogra reached at Block

W.P.(C) No.7509/2014 Page 3 No.194, where he observed that cleanliness of the area was not up to the

mark. An official was sent to fetch the petitioner and when he reached there,

Naib Subedar R.S. Dogra used the words "who will maintain these myself or

2IC." (statement made by Naib Subedar R.S. Dogra during Court of Inquiry

as PW-1). During recording of Summary of Evidence, Naib Subedar R.S.

Dogra again stated "Then I told them in anger, using abusive language, that

who is going to clean surrounding areas of your quarter--me or Officiating

Second-in-Command. On this, Nk Auto Elect (B Veh) Balwan Choudhary

replied that 'saab do not use abusive language here.'" Even in Summary

Court Martial also Naib Subedar R.S. Dogra had deposed that he had

shouted at the petitioner in the family quarters.

7. Similarly, all the other witnesses have also deposed in enquiry that it

was Naib Subedar R.S. Dogra who had used abusive language while talking

to petitioner and that the petitioner had initially asked him to refrain using

such a language in the family quarters. Hav PM Bhai had stated that Naib

Subedar R.S. Dogra abused first and did not stop even when the petitioner

asked him not to abuse. During Summary Court Martial, Hav PM Bhai has

also clearly stated in the cross-examination, when asked if Naib Subedar

shouted at petitioner using abusive language, "He did shout at you using

W.P.(C) No.7509/2014 Page 4 abusive language for not maintaining area in front of your quarter and for

being late for the fall-in." and again stated--when asked if petitioner had

requested Naib Subedar R.S. Dogra not to shout and use abusive language--

that petitioner did ask Naib Subedar R.S. Dogra not to shout and abuse. Naik

Baijnath had also deposed in the same lines.

8. The witnesses had also deposed that thereafter, a brawl ensued

between them, they grappled and started punching each other. Even after

they were separated, they continued to trade abuses, again scuffled and

started physically assaulting each other. The witnesses also stated that prior

to this incident on the same day at the time of games parade, Naib Subedar

R.S. Dogra had told the family members of the jawans to clean their areas

and that he would visit in the family quarter for taking fall-in after drinking

four pegs and if the area was not found clean, insult them in front of their

family members.

9. All these materials show that petitioner alone cannot be solely blamed

for the incident. The unbecoming behaviour of the senior (using abusive

language) triggered the incident. The testimony of Naib Subedar R.S. Dogra

and other witnesses also show that the petitioner had asked Naib Subedar

R.S. Dogra not to abuse him. Naib Subedar R.S. Dogra, in his deposition,

W.P.(C) No.7509/2014 Page 5 even has stated that the petitioner while requesting him not to abuse, had

used the words 'saab do not use abusive language here'. These facts clearly

show that it was the senior officer who had first violated the discipline of

Force and insulted his junior in public and in front of his family members. A

senior officer, while addressing his subordinates, is expected to maintain

decorum and to refrain from insulting them or lower their dignity in public.

After all, subordinates too have their dignity and self-respect which should

be respected and preserved. A senior like Naik Subedar R.S. Dogra should

have refrained from using abusive language against his subordinate,

especially in the family/common residential area. The petitioner had reacted

when he was insulted in public, in front of his family members and others.

The Court was informed that while Naib Subedar R.S. Dogra was given a

comparatively lighter punishment, the petitioner was reduced in rank,

besides being sentenced to rigorous imprisonment in military custody for 70

days.

10. We are of the opinion that in the given circumstance of the case, the

penalty imposed is harsh and excessive. Given all the circumstances and the

fact that the petitioner underwent 70 days rigorous imprisonment, the

penalty of reduction in rank was disproportionate. Consequently, we modify

W.P.(C) No.7509/2014 Page 6 the impugned order as far as it reduces the petitioner to rank of Sepoy. The

rank of the petitioner be restored to that of Naik/Auto Elect (B Veh) with all

the consequential benefits accrued to him on the basis of this modified

penalty, including restoration of the increments, seniority, etc. within four

weeks from today.

The writ petition is allowed in above terms.

DEEPA SHARMA (JUDGE)

S. RAVINDRA BHAT (JUDGE)

AUGUST 27, 2015 BG

W.P.(C) No.7509/2014 Page 7