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Gauhati High Court · body

2002 DIGILAW 251 (GAU)

Tarsaim Singh v. Union of India and Ors.

2002-06-12

P.K.SARKAR

body2002
P.K. SARKAR, J.— I have heard Mr O.K. Bhattacharyya, the learned counsel appearing on behalf of the petitioner. I have also heard Mr C. Choudhury, the learned Central Government Standing Counsel appearing on behalf of the respondents. 2. The petitioner is aggrieved by the order of termiantion of his service by way of dismissal issued by the General Officer Commanding on 24.4.1996 with effect from 1.5.1996 at Annexure-5. 3. The petitioner prays for quashing the said order of dismissal from the service. The petitioner also seeks to quash the order of termination communicated to him by the Major Adjutant Mr K. Ranjeev Singh dated 30th April, 1996. 4. The petitioner was working as a L/ NK in 10, Dogra Regiment at 99 A.P.O. While on service he along with another L/ NK Roshan Lal were assigned the duty in the village of Sepon, Pathalipam and Panitoal Gaon. The petitioner along with the said L/NK went to the aforesaid villages as per order of the Second Lieutenant on 18.8.993 but they did not confine themselves in these three villages. Thereafter they went to Silpatagaon, a separate village even though they were not permitted to go to that village. The allegation against the petitioner and his co-accused L/NK Roshan Lal is that they went to Silpatagaon and committed rape on some women of that village and subsequently the matter was reported to the higher authority of the Army as well as a complaint was lodged with the Police Station. A Court Martial was held for trial of the petitioner and his co-accused L/NK Roshan Lal on the charge of committing rape as well as for going to Silpatagaon without any order of the authority. The General Court Martial, after taking evidence, on benefit of doubt did not believe the prosecution case and in revision also the General Court Martial held the same view. However, as per the Army Act and Rules any orders passed by the Court Martial are subject to confirmation by the higher authority and accordingly the proceedings of the Court Martial was sent to the higher authority for confirmation. The General Officer Commanding, 2 Mountain Division who is the confirming authority did not confirm the findings of the General Court Martial. The General Officer Commanding, 2 Mountain Division who is the confirming authority did not confirm the findings of the General Court Martial. On the contrary the General Officer Commanding, 2 Mountain Division after considering the totality of the case came to a definite finding that the petitioner and his co-accused L/NK Roshan Lal proceeded to a village Silpatagaon without any orders of the higher authority for which the Army authorities were put into serious embarrassment. Instead of confirming the findings of the General Court Martial, the General Officer Commanding, 2 Mountain Division recommended for strict action against the petitioner and his co-accused L/NK Roshan Lal by terminating the services. 5. Mr G.K. Bhattacharyya, the learned counsel for the petitioner submitted that the order passed by the General Officer Commanding on 24.4.1996 and the order communicated by the Major Adjutant Mr K. Ranjeev Singh dated 30.4.1996 are liable to be quahsed on the ground that these orders were passed by taking recourse to Section 20 of the Army Act when the authority failed to prove the charges against the petitioner and his co-accused L/NK Roshan Lal. The learned counsel for the petitioner accordingly submitted that when in the General Court Martial the petitioner and his co-accused L/NK Roshan Lal were found not guilty, the General Officer Commanding, 2 Mountain Division should not have passed the order dismissing the services of the petitioner. The learned counsel for the petitioner submitted that in the case of the petitioner it is simply misusing the power given to the authority. The learned counsel for the petitioner accordingly submitted that even though Section 20 of the Army Act empowers the authority for dismissing or terminating the services of a person who is subject to Army Act but that power should not be exercised arbitrarily or without application of mind. I cannot agree with the submission of the learned counsel for the petitioner. The Army Act, 1950 has been enacted by the Parliament for discipline and control within the Army. It is true that Section 20 gives a wide power to the authority to dismiss or remove from the service any person who is subject to the Army Act, 1950. Rule 17 of the Army Rules, 1954 prescribes the procedure for dismissal or removal of any defence personnel. It is true that Section 20 gives a wide power to the authority to dismiss or remove from the service any person who is subject to the Army Act, 1950. Rule 17 of the Army Rules, 1954 prescribes the procedure for dismissal or removal of any defence personnel. The requirement for terminating or dismissing the service for a defence personnel is to give a show cause notice and after giving an opportunity to the person passed the order for termination or dismissal from the service. 6. In the instant case a show cause notice was issued on 2nd January, 1996 wherein the major allegation against the petitioner and his co-accused L/NK Roshan Lal is of misconduct. In the said show cause notice at Annexure-4 it has been clearly stated that the petitioner and his co-accused LI NK Roshan Lal had proceeded to a village Silpatagaon which is altogether in a different direction and where the petitioner and his co-accused L/NK Roshan Lal were not asked to go. The petitioner replied the show cause notice even though the reply has not been submitted before this Court. The learned counsel for the petitioner submitted that in the reply the petitioner has stated that while they were discharging duty in the village of Sepon, Pathalipam and Panitola, the petitioner and his co-accused L/NK Roshan Lal heard that they may got the work done in the village Sipatagaon. The petitioner was assigned duty in particular villages which does not include Silpatagaon. Therefore, I am of the view that he should not have gone to the village Silpatagaon which is situated at a different place and this is clearly in violation of the orders of the higher authority. The petitioner is a member of a discipline force. Therefore, I am of the view that he should be strictly disciplined and should comply with the orders of the higher authority. If he is not asked to discharge his duty in any particular place he should not go to that place. But in the instant case it is admitted by the petitioner that he along with his co-accused L/NK Roshan Lal have visited Silpatagaon. 7. If he is not asked to discharge his duty in any particular place he should not go to that place. But in the instant case it is admitted by the petitioner that he along with his co-accused L/NK Roshan Lal have visited Silpatagaon. 7. The learned Central Government Standing Counsel submitted that if the petitioner and his co-accused L/NK Roshan Lal confined their duties within the villages where they were asked to discharge their duties then there would have been no scope for the allegation of rape on the petitioner and his co-accused L/NK Roshan Lal by the villagers of Silpatagaon. It is further submitted by the learned Central Government Standing Counsel that to prove a criminal case before a Court Martial it requires convincing evidence and any doubt in the mind of the Court may acquit an accused from the criminal charges. The learned Central Government Standing Counsel submitted that the petitioner has admitted that he along with his co-accused L/NK Roshan Lal went to Silpatagaon and as a consequence of their going to that village complaint has been filed against the petitioner and his co-accused L/NK Roshan Lal for committing rape on some village women. It is further submitted by the Central Government Standing Counsel that had the petitioner and his co-accused L/NK Roshan Lal not visited the village Silpatagaon then the allegation of rape against the petitioner and his co-accused L/NK Roshan Lal would not have at all arisen. It is also submitted that since the petitioner has admitted that he along with his co-accused L/NK Roshan Lal visited Silpatagaon which was not their place of duty, they have dis-obeyed the orders of the higher authority which is a high misconduct in a discipline force. 8. In the show cause notice at Annexure-4 the main allegation against the petitioner has been made and in reply to the show cause notice he has admitted of his visiting the village Silpatagaon. The authority, after considering the reply of the petitioner, was satisfied that the reply is without any substance. It is apparent that his reply must be of without substance because he has admitted that he has visited the village Silpatagadh where he was not asked to perform any duty. 9. The authority, after considering the reply of the petitioner, was satisfied that the reply is without any substance. It is apparent that his reply must be of without substance because he has admitted that he has visited the village Silpatagadh where he was not asked to perform any duty. 9. Having regard to the facts and circumstances of the case and after hearing the learned counsel of both the parties, I am of the view that the power given under Section 20 of the Army Act, 1950 cannot be said to have been arbitrarily used by the authority in the instant case. On the contrary, the acts of the petitioner and his co-accused L/NK Roshan Lal are being without order of the higher authority certainly be termed as misconduct on their part. 10. I, therefore, find no reason to interfere with the order passed by the General Officer Commanding on 4.4.1996 and also the order of termination of the petitioner passed by the Major Adjutant Mr K. Ranjeev Singh on 30.4.1996. Accordingly the petition is dismissed. However, I make no order as to costs.