Jammu, March 17: In SWP No. 867/2007 tilted Sub Subash Chander No. JC 579272 Vs. 1. Union of India through Secretary to Govt. Ministry of Defence, New Delhi. 7 ors, after hearing HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE ordered as :-
1. The petitioner is aggrieved of and has called in question order dated 9th September, 2004 passed by the respondents under Section 63 of the Army Act, 1950 [„ the Act‟], whereby the petitioner has been awarded punishment of „severe reprimand‟. The petitioner also seeks a direction to the respondents to refund a sum of Rs. 12000/- forcibly recovered by the respondents.
2. Briefly stated, the facts leading to filing of this petition are that, the petitioner who was enrolled as Sepoy in Indian Army on 31-03-1979, rose to the position of Subedar in the year 2003.
As per the claim made by the petitioner, he earned all the promotions right from L/Nk to Subedar on the basis of his merit. The petitioner had a clean record of service throughout till one Captain P. K. Verma took over as Company Commander of the Company in which the petitioner was serving.
It is alleged that Company Commander Capt. Verma indulged in various irregularities and illegalities in the Company which were objected by the petitioner being a senior most JCO in the Company.
The raising of voice by the petitioner against Captain Verma ultimately became the basis for holding proceedings against the petitioner, leading to imposition of punishment of „severe reprimand‟ on the petitioner.
3. It is contended by the petitioner that on 14-08-2004, Sepoy Riaz Wahi, who was on sentry duty in a guard post, was found absent for some time. He, however, came back and rejoined his duty after some time & there was some exchange of hot words between the Guard Commander and sentry.
The Sentry went to the Company Commander and lodged a complaint against the Guard Commander for having used abusive language against him.
The petitioner was summoned by the Company Commander and was asked to put the Sentry on charge sheet.
On 15-08-2004, when the petitioner requested the Company Commander to give him permission to resolve the issue amicably, the petitioner was abused by the Company Commander.
The petitioner was also put in prison along with the Sentry on 17-08-2004. It is alleged that petitioner was called by Dr. D. K. Nanda, Commanding Officer, 160 Bn, 16 Inf. Bn. Territorial Army (JAKRIF) in his office and was told that there were some complaints against him for misappropriation of Ration.
The petitioner claims that he tried his best to clear his position that he was innocent but nobody listened to him and instead he was forced to pay Rs. 12000/- on account of loss of some Ration.
4. The petitioner was formally put on charge under Section 63 of the Act and on the same day awarded „severe reprimand‟ by the Commanding Officer Dr. D. K. Nanda.
The petitioner also alleges that he was made to sign some papers under pressure and undue influence. He made non-statutory and statutory petitions/representations but with no result.
It is this order of the Commanding officer dated 09-09-2004 which is called in question in this petition.
5. The impugned order is assailed primarily on the ground that the punishment of „severe reprimand‟ was inflicted upon the petitioner on the basis of some ex-parte reports and without holding any enquiry in accordance with the procedure prescribed by the Act and the Rules framed there under.
6. Respondents have contested the petition and have also filed reply affidavit duly sworn in by one Major T. S. Bajwa, Major/Adjutant, 160 Infantary Battalion (TA). It is submitted by the respondents that, while the petitioner was posted in C-Coy as senior most JCO and was officiating as Company Commander, it came to the notice of the Commanding Officer that some misappropriation of Ration had taken place.
Captain P. K. Verma was sent as Company Commander of C-Coy on 04-08-2004. Captain P. K. Verma carried out the inspection of the Company stores and found deficiency in the company saving rations.
The Company Commander immediately brought the deficiency to the notice of the Commanding Officer. The matter was investigated by the Commanding Officer and it was revealed that the petitioner had failed to exercise proper supervision over the CQMH, who was negligent in performing his duties and had failed to properly account for the Ration held under his charge.
The petitioner was awarded „severe reprimand‟ in terms of the impugned order under Section 85 of the Act for commission of offence under Section 63 of the Act.
7. Feeling aggrieved, the petitioner submitted an application for review of the punishment and the petitioner was interviewed by the Commanding Officer.
During his interview, the petitioner requested for interview by the GOC. The matter was taken up with Records, JAK RIF vide letter dated 11-04-2005 for review of the punishment, however, the petitioner opted out of the interview with the GOC.
The matter was accordingly referred to the superior authority for reducing the punishment but the same was truned down on the ground that there were no valid reasons for reducing the punishment.
8. The respondents have explained the manner in which the proceedings were conducted against the petitioner and have submitted that relevant provisions of the Act and the Rules framed there under were scrupulously followed. The summary proceedings were initiated and concluded on the same day, having regard to the fact that offence had been committed by the petitioner in field and urgent action was required.
9. Having heard the learned counsel for the parties and perused the record, I am of the view that the proceedings conducted by the respondents, leading to imposition of „severe reprimand‟ on the petitioner, are not only in violation of principles of natural justice but are also seemingly unfair, for the fair trial rights of the petitioner to defend his case are violated in the instant case.
22. In the instant case, the material/record of the proceedings leading to imposition of punishment of „severe reprimand‟ on the petitioner, was never placed before the superior military authority to take a decision as to whether the decision of imposing the punishment of severe reprimand on the petitioner was illegal, unjust or excessive. In this way even Section 87 of the Act too was breached with impunity.
23. Viewed from any angle, the entire proceedings conducted by the Commanding Officer against the petitioner on 09-09-2004 clearly violate the fair trial rights of the petitioner. He has not been given adequate opportunity to defend himself, was rather forced to admit the guilt in the proceedings which were conducted with utmost hurry and concluded in a day.
I have also explained in detail the violations committed by the Commanding Officer from time to time during the proceedings. Otherwise also the charge against the petitioner was only that of lack of supervision on his subordinate but nothing has been brought on record as to how the subordinate, who was actually guilty for not accounting for the Ration, was dealt with. The proceedings initiated against the petitioner, which culminated into awarding him the punishment of „severe reprimand‟, are apparently conducted to satisfy the ego of an officer.
24. So far as the allegation of the petitioner, that he was forced to pay a sum of Rs. 12000/-, is not substantiated from record. The respondents are on affidavit to state that no recovery was made from the petitioner.
25. For the foregoing reasons and the discussion, I am of the considered opinion that the impugned order of inflicting „severe reprimand‟ on the petitioner was totally illegal, arbitrary and in breach of the Army Act and the Rules framed there under. I, therefore, find merit in this petition.
The same is, accordingly, allowed.
The impugned order dated 09-09-2004 is quashed.
The respondents shall grant the petitioner all the consequential benefits to which he is found entitled to, pursuant to the quashing of the punishment.
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